IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSE MARISCAL FAUSTO, 

Case No. 6:14-cv-00966-JE 

Petitioner, 

v. 

JEFF PREMO, 

Respondent. 

Jose Mariscal Fausto 

Calle Carlos Cabanillas 926 

Col. Echeverria C.P. 44970 

Guadalajara Jalisco 

Mexico 

Petitioner, Pro Se 

FINDINGS AND RECOMMENDATION 

Ellen F. Rosenblum, Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - FINDINGS AND RECOMMENDATION 

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JELDERKS, Magistrate Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his state-court 

convictions for Sexual Abuse. For the reasons that follow, the 

Petition for Writ of Habeas Corpus (#1) should be denied. 

BACKGROUND 

Following a bench trial, petitioner was convicted in Marion 

County of two counts of Sexual Abuse in the First Degree for crimes 

he committed against a five-year-old victim. Respondent's Exhibit 

102. As a result, the trial court sentenced petitioner to 75 

months in prison. Respondent's Exhibit 101. 

Pe ti ti oner took a direct appeal, but his attorney filed a 

Balfour brief when he was unable to find any meritorious issues to 

present. 1 The Oregon Court of Appeals affirmed the trial court's 

decision without opinion, and the Oregon Supreme Court denied 

review. State v. Mariscal-Fausto, 237 Or. App. 211, 238 P.3d 1034 

(2010), rev. denied, 349 Or. 603, 249 P.3d 124 (2011). 

1 The Balfour procedure provides that counsel need not 

ethically withdraw when faced with only frivolous issues. 

Rather, the attorney may file Section A of an appellant's brief 

containing a statement of the case sufficient to ''apprise the 

appellate court of the jurisdictional basis for the appeal." 

State v. Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991). The 

defendant may then file the Section B segment of the brief 

containing any assignments of error he wishes. Id at 452. 

Petitioner in this case ultimately raised a single evidentiary 

claim in a pro se supplemental brief, but the issue is not before 

this court for consideration. Respondent's Exhibit 107. 

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Petitioner next filed for post-conviction relief ("PCR") in 

Malheur County where the PCR trial court denied relief on his 

claims. Respondent's Exhibit 136. The Oregon Court of Appeals 

affirmed the lower court without opinion, and the Oregon Supreme 

Court denied review. Fausto v. Nooth, 258 Or. App. 682, 311 P.3d 

1252, rev. denied, 354 Or. 597, 318 P.3d 749 (2013). 

Petitioner filed this federal habeas corpus case on June 16, 

2014 raising the following claims: 

1. Trial counsel was ineffective when he 

pressured petitioner to sign a jury 

waiver he did not fully understand; 

2. Trial counsel was ineffective when he 

failed to conduct an adequate 

investigation of the case insofar as he 

did not contact and interview relevant 

witnesses; 

3. Trial counsel was ineffective when he 

failed to present an actual innocence 

defense during trial; and 

4. Trial counsel was ineffective when he 

failed to move for a judgment of 

acquittal based upon the destruction of 

evidence. 

Respondent asks the court to deny relief on the Petition 

because: (1) petitioner failed to fairly present Ground Four to the 

Oregon state courts, and the claim is now procedurally defaulted; 

and (2) the PCR trial court's decision denying relief on Grounds 

One, Two, and Three was neither contrary to, nor an unreasonable 

application of, U.S. Supreme Court precedent. Although 

3 - FINDINGS AND RECOMMENDATION 

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petitioner's supporting memorandum was due on March 17, 2015, he 

has not filed any such brief with the court. 2 

DISCUSSION 

I. Exhaustion and Procedural Default 

A. Standards 

A habeas petitioner must exhaust his claims by fairly 

presenting them to the state's highest court, either through a 

direct appeal or collateral proceedings, before a federal court 

will consider the merits of those claims. Rose v. Lundy, 455 U.S. 

509, 519 (1982). ''As a general rule, a petitioner satisfies the 

exhaustion requirement by fairly presenting the federal claim to 

the appropriate state courts . . in the manner required by the 

state courts, thereby 'affording the state courts a meaningful 

opportunity to consider allegations of legal error.''' Casey v. 

Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. 

Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed 

to present his claims to the state courts in a procedural context 

in which the merits of the claims were actually considered, the 

claims have not been fairly presented to the state courts and are 

therefore not eligible for federal habeas corpus review. Edwards 

2 Petitioner did file an undated Notice of Change of 

Address on May 1, prompting respondent to re-serve its responsive 

documents on petitioner at his new address on May 7. 

4 - FINDINGS AND RECOMMENDATION 

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v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 

U.S. 346, 351 (1989). 

A petitioner is deemed to have "procedurally defaulted" his 

claim if he failed to comply with a state procedural rule, or 

failed to raise the claim at the state level at all. Edwards v. 

Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 

722, 750 (1991). If a petitioner has procedurally defaulted a 

claim in state court, a federal court will not review the claim 

unless the petitioner shows "cause and prejudice" for the failure 

to present the constitutional issue to the state court, or makes a 

colorable showing of actual innocence. Gray v. Netherland, 518 

U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); 

Murray v. Carrier, 477 U.S. 478, 485 (1986). 

B. Analysis 

As Ground Four, petitioner alleges that his trial attorney was 

deficient when he did not move for a judgment of acquittal 

predicated upon the alleged destruction of evidence by an 

investigating police officer. Petitioner raised this same claim in 

his PCR Petition. Respondent's Exhibit 112, p. 4. He did not, 

however, pursue the claim in his Appellant's Brief. Respondent's 

Exhibit 137. Because petitioner can no longer present his Ground 

Four claim to the Oregon Court of Appeals, the claim is now 

procedurally defaulted, and petitioner has not attempted to excuse 

the default. 

5 - FINDINGS AND RECOMMENDATION 

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II. The Merits 

A. Standard of Review 

An application for a writ of habeas corpus shall not be 

granted unless adjudication of the claim in state court resulted in 

a decision that was: (1) "contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by 

the Supreme Court of the United States;'' or (2) "based on an 

unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding." 28 U.S.C. § 2254(d). A 

state court's findings of fact are presumed correct, and petitioner 

bears the burden of rebutting the presumption of correctness by 

clear and convincing evidence. 28 U.S.C. § 2254(e) (1) 

A state court decision is "contrary to clearly 

established precedent if the state court applies a rule that 

contradicts the governing law set forth in [the Supreme Court's] 

cases" or "if the state court confronts a set of facts that are 

materially indistinguishable from a decision of [the Supreme] Court 

and nevertheless arrives at a result different from [that] 

precedent." Williams v. Taylor, 52 9 U. s. 362, 405-06 ( 2000) . 

Under the "unreasonable application" clause, a federal habeas court 

may grant relief "if the state court identifies the correct 

governing legal principle from [the Supreme Court's] decisions but 

unreasonably applies that principle to the facts of the prisoner's 

case." Id at 413. The "unreasonable application" clause requires 

6 - FINDINGS AND RECOMMENDATION 

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the state court decision to be more than incorrect or erroqeous. 

Id at 410. The state court's application of clearly established 

law must be objectively unreasonable. Id at 409. 

When a state court reaches a decision on the merits but 

provides no reasoning to support its conclusion, the federal habeas 

court must conduct an independent review of the record to determine 

whether the state court clearly erred in its application of Supreme 

Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 

In such an instance, although the court independently reviews the 

record, it still lends deference to the state court's ultimate 

decision. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011); 

Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 

B. Analysis 

1. Ground One: Jury Waiver 

According to petitioner, his trial attorney rendered 

ineffective assistance of counsel when he pressured petitioner into 

waiving his right to a jury trial without fully explaining the 

waiver to him. Petitioner claims he believed only some of the 

jurors would be removed from the jury and was unaware he was 

signing away his right to a jury altogether. 

Because no Supreme Court precedent is directly on point that 

corresponds to the facts of this case, the court uses the general 

two-part test established by the Supreme Court to determine whether 

petitioner received ineffective assistance of counsel. Knowles v. 

7 - FINDINGS AND RECOMMENDATION 

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Mirzayance, 556 U.S. 111, 122-23 (2009). First, petitioner must 

show that his counsel's performance fell below an objective 

standard of reasonableness. Strickland v. Washington, 466 U.S. 

668, 686-87 (1984). Due to the difficulties in evaluating 

counsel's performance, courts must indulge a strong presumption 

that the conduct falls within the "wide range of reasonable 

professional assistance.'' Id at 689. 

Second, petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

whether the petitioner can show "that there is a reasonable 

probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id at 694. 

A reasonable probability is one which is sufficient to undermine 

confidence in the outcome of the trial. Id at 696. When 

Strickland's general standard is combined with the standard of 

review governing 28 U.S.C. § 2254 habeas corpus cases, the result 

is a "doubly deferential judicial review." Mirzayance, 129 S.Ct. 

at 1420. 

Trial counsel submitted an Affidavit for consideration during 

petitioner's PCR trial addressing this claim: 

I did not pressure Mr. Mariscal-Fausto into 

waiving a jury trial. It is my belief that I 

fully explained to him the rights he would be 

giving up by waiving jury, and did so with the 

assistance of a Spanish interpreter. At no 

time did I tell him, or in any way indicate to 

him, that his case still would be heard by one 

or more jurors if he signed the jury waiver. 

8 - FINDINGS AND RECOMMENDATION 

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The jury waiver form itself unequivocally 

states to the contrary, i.e., that the judge 

would decide all issues of fact relating to 

guilt and sentencing as a result of waiving 

the right to a jury trial. See [Respondent's] 

Exhibit [131]. 

Moreover, it is my recollection that, before 

she accepted his waiver, Judge Tripp went over 

the jury waiver form and the rights discussed 

therein with Mr. Mariscal-Fausto on the record 

and with the assistance of an interpreter. I 

have no reason to believe that his jury waiver 

was anything other than knowingly, 

voluntarily, and intelligently made. Any 

claim that the outcome of Mr. MariscalFausto' s case would have been different had we 

not waived jury would be pure speculation. 

Respondent's Exhibit 134, pp. 1-2. 

The PCR trial court rejected petitioner's claim as follows: 

There is a signed jury waiver. I've read the 

transcript. The court discussed the waiver 

with petitioner. This court finds that both 

the court and the attorney explained that 

there would be no jury and that the judge 

would decide the case. There is no proof that 

the verdict would have been any different if 

there had been a jury. 

Respondent's Exhibit 135, pp. 13-14. 

The PCR trial court determined that both trial counsel and the 

court explained to petitioner that there would be no jury. These 

factual findings are entitled to a presumption of correctness which 

petitioner has not overcome with clear and convincing evidence to 

the contrary. 28 U.S.C. § 2254 (e) (1). Taking these facts as 

true, counsel's performance did not fall below an objective 

standard of reasonableness. Accordingly, the PCR trial court's 

9 - FINDINGS AND RECOMMENDATION 

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decision is neither contrary to, nor an unreasonable application 

of, clearly established federal law. 

2. Ground Two: Adequacy of Investigation 

Petitioner next alleges that trial counsel's performance was 

deficient when he failed to contact and interview: (1) Mr. and Ms. 

Aurelio Camacho; (2) Carmen Mercado; ( 3) Carlos Mercado; 

(4) Aracelia Ambrocio; (5) FG (a fourteen year-old witness for the 

State); and (6) Alejandro (the victim's brother-in-law). He claims 

that had counsel contacted these individuals, he would not have 

been convicted. 

During his PCR trial, petitioner submitted affidavits from the 

Camachos and Aracelia Ambrocio wherein they generally stated that 

petitioner was a person of good character. Respondent's Exhibits 

117-119. Trial counsel submitted an affidavit which addressed the 

issue as follows: 

I did not fail to conduct adequate 

investigation of the case prior to trial. I 

requested that our office investigator, Peter 

DeMuniz, contact and interview Mr. MariscalFausto' s neighbors, Aurelio Camacho and Carlos 

Mercado. It is my information and belief that 

Mr. DeMuniz complied with my request and also 

took several photographs and a video of the 

location. He and I discussed the results of 

his contacts and I thereafter concluded that 

the neighbors would not be helpful to our 

defense. 

[FG] in fact did testify at trial: she was the 

State's primary witness against Mr. MariscalFausto. I recall the essence of her testimony 

to have been that she saw the purported events 

involving the alleged victim. It is my 

10 - FINDINGS AND RECOMMENDATION 

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recollection that, when confronted on crossexamination, she admitted her vantage point 

was (I believe) over 75 feet away and her view 

was blocked by a fence, a line of trees, and 

several cars in a parking lot. It is my 

recollection that Ms. Garcia further claimed 

to have stood on her family's couch in order 

to see the things to which she testified. 

I can find no mention of Aracelia Ambrocio or 

"Alejandro" in the police reports, nor are 

these persons named in any file notes as 

having been suggested as potential witnesses 

by Mr. Mariscal-Fausto. I have no basis upon 

which to speculate as to what helpful 

information, if any, these individuals might 

have provided on his behalf. 

Respondent's Exhibit 134, p. 2. 

The PCR trial court concluded: 

The investigator did speak to witness Camacho, 

but the attorney didn't call that person since 

there was no testimony that would be helpful 

to the actual issue of guilt or innocence. 

There is no proof that the attorney knew of 

Alejandro or the Ambrocio witness, or that 

they would have had evidence concerning guilt 

or innocence, and that their testimony could 

have affected the outcome. 

Respondent's Exhibit 135, p. 14. 

The record reveals that petitioner failed to provide the PCR 

trial court with any independent evidence from which it could 

conclude that the individuals he names could have presented 

information helpful to his defense. Indeed, the affidavits 

petitioner presented spoke only of his general character and thus 

had no bearing on the facts of the case. Accordingly, counsel's 

performance did not fall below an objective standard of 

11 - FINDINGS AND RECOMMENDATION 

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reasonableness and, even assuming it did, petitioner failed to 

prove he was prejudiced by any such failing. See Horn v. Hill, 180 

Or. App. 139, 148-49, 41 P. 3d 1127 (2002) ("Where evidence omitted 

from a criminal trial is not produced in a post-conviction 

proceeding . its omission cannot be prejudicial"); see also 

Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (petitioner's 

self-serving affidavit regarding potential testimony of another is 

insufficient to prove ineffective assistance of counsel), For all 

of these reasons, the PCR trial court did not unreasonably apply 

Strickland to the facts of petitioner's case when it denied relief 

on this claim. 

3. Ground Three: Defense of Actual Innocence 

As his final claim, petitioner contends trial counsel was 

constitutionally ineffective when he failed to present a defense of 

actual innocence. Because the PCR trial court did not make any 

findings as on this issue, the court conducts an independent review 

of the record as to this claim. 

During his PCR trial, petitioner argued that his trial 

attorney only argued reasonable doubt and never actually asserted 

that petitioner was actually innocent of his charges. 3 His trial 

attorney's affidavit addressed this claim as follows: 

3 In his own PCR affidavit, petitioner merely claimed "I 

never should have been convicted because I was innocent of these 

crimes." Respondent's Exhibit 116, p. 3. 

12 - FINDINGS AND RECOMMENDATION 

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The trial transcript should speak for itself 

as to the defense strategy and theory of the 

case. We made what I believe to have been 

strong challenges to the State's evidence; and 

it is my recollection that Mr. Mariscal-Fausto 

took the stand and testified that he did not 

commit the crimes alleged. 

Respondent's Exhibit 134, p. 3. 

A review of the trial transcript reveals that petitioner did, 

in fact, take the stand in his own defense and counsel specifically 

asked him whether he had sexually abused the victim: 

Counsel: When . . do you recall being asked if you 

Pet'r: 

had ever touched [A.G.] between her legs? 

Yeah, I mean I remember 

never touched any . 

other girl. 

saying no that I had 

not just her but any 

Counsel: And do you remember being asked if it could 

have been by accident? 

Pet'r: Yeah he said could that have could you 

have accidentally touched her and I said no. 

Counsel: Did you ever touch [A.G.] in her genital area? 

Pet'r: Never. 

Respondent's Exhibit 105, p. 67. 

Not only did counsel give petitioner an opportunity to claim 

he had never touched the victim inappropriately, but also argued to 

the court that "it just doesn't make sense why someone would engage 

in some sort of blatant molestation of a little girl in broad 

daylight in front of all of these windows that could have 

potential[] witnesses and by the way, witnesses that we don't have 

here today." Id at 84. He also argued that the State had not 

13 - FINDINGS AND RECOMMENDATION 

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established that "anything even actually happened[.)" Id. Although 

counsel stressed that the State had not succeeded in meeting its 

burden of proof, this was a sound strategic decision where the 

State's failure to meet its burden was a lower threshold to satisfy 

than an affirmative showing of actual innocence. It is also 

difficult to see what other evidence of innocence counsel could 

have proffered aside from petitioner's own testimony. For all of 

these reasons, upon an independent review of the record, the PCR 

trial court's decision is neither contrary to, nor an unreasonable 

application of, clearly established federal law. 

RECOMMENDATION 

For the reasons identified above, the Petition for Writ of 

Habeas Corpus (#1) should be DENIED and a judgment should be 

entered dismissing this case with prejudice. The court should 

decline to issue a Certificate of Appealability on the basis that 

petitioner has not made a substantial showing of the denial of a 

constitutional right pursuant to 28 U.S.C. § 2253(c) (2). 

SCHEDULING ORDER 

This Findings and Recommendation will be referred to a 

district judge. Objections, if any, are due within 17 days. If no 

objections are filed, then the Findings and Recommendation will go 

under advisement on that date. 

If objections are filed, then a response is due within 14 days 

after being served with a copy of the objections. When the response 

14 - FINDINGS AND RECOMMENDATION 

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is due or filed, whichever date is earlier, the Findings and 

Recommendation will J5! under 

DATED this ls l day of 

advisement. 

June, 2015. 

United 

J~e~ States Magistrate Judge 

15 - FINDINGS AND RECOMMENDATION 

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