IN THE UNITED STATES DISTRJCT COURT 

FOR THE DISTRJCT OF OREGON 

BENJAMIN J. ACOSTA, 

Petitioner, 

v. 

J. PREMO, Superintendent, Oregon State 

Penitentiary, 

Respondent. 

KING, Judge. 

Case No. 6: 14-cv-01458-Kl 

OPINION AND ORDER 

Petitioner brings this habeas corpus proceeding pursuant to 28 U.S. C. § 2254. For the reasons 

set forth below, this Court denies Petitioner's Amended Petition for Writ of Habeas Corpus (ECF 

N9. 19). 

BACKGROUND 

On August 18, 2008, Petitioner was indicted on charges of Sodomy in the First Degree, 

Assault in the Fourth Degree, and Burglary in the First Degree. Petitioner waived his right to a jury 

trial and proceeded to a bench trial. Resp't Ex. 117. At trial, the prosecution presented the testimony 

of Robert Pettitt (the victim), Jessica Harrison (the on-site manager at the victim's apartment 

1 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 1 of 19
complex), 1 and two Portland police officers. Pettitt testified that Petitioner came to his apartment on 

the evening of July 4, 2008, and demanded to be let in. Tr. at 75, 77-78, 83-85, 119-20. According 

to Pettitt, when he opened the door, Petitioner struck him in the chin and pushed his way into the 

apartment. Id. 86-87. Pettitt testified that after being in the apartment for a period of time; Petitioner 

unzipped his pants, grabbed Pettitt by the "nape of the neck," pushed his head down, and forced him 

to put Petitioner's penis in his mouth. Id. at 93, 95-97, 100, 112. The defense presented no witnesses. 

The judge convicted Petitioner of Sodomy in the First Degree and Burglary in the First 

Degree, but acquitted Petitioner on the assault charge. Resp't Ex. 101. The Court sentenced 

Petitioner to a Measure 11 mandatory minimum sentence of 100 months for Sodomy, a concurrent 

66-month term for Burglary, and three years post-prison supervision. Id. 

Petitioner filed a direct appeal assigning error to the trial court's denial of his Motion for 

Acquittal on the sodomy charge. Resp't Ex. 104 at 4. Petitioner reasoned that although he used force 

to enter the victim's apartment, he did not compel Pettitt to perform oral sex by using physical force 

or the threat of physical injury or death. Id. at 5-6; Resp 't Ex. I 06 at 5. The Oregon Court of Appeals 

affirmed without opinion, and the Oregon Supreme Court denied review. State v. Acosta, 253 P.3d 

1081 (Or. App.), rev. denied, 258 P.3d 527 (Or. 2011). 

Petitioner sought state post-conviction relief (PCR), alleging five instances of ineffective 

assistance of counsel. Resp 't Ex. 109. The PCR court denied relief, holding that Petitioner's 

testimony was not credible, and that trial comisel did not render ineffective assistance of counsel. 

1 Pettitt's apartment complex is operated by Cascadia Behavioral Health Care and its 

residents have "some sort of mental health diagnosis."Tr. at 32-33. Petitioner was formerly a 

tenant ofthe complex and Pettitt's neighbor. Id. at 35, 76, 78. 

2 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 2 of 19
Resp't Ex. 124 at 20-21, Ex. 125. Petitioner's appellate counsel filed a direct appeal and submitted 

a Balfour brief. Resp't Ex. 126.2 Petitioner filed a section B to the Balfour brie{raising the same 

claims presented to the PCR court. Id. The Oregon Court of Appeals affirmed the PCR court without 

opinion, and the Oregon Supreme Court denied review. Acosta v. Franke, 329 P.3d 814 (Or. App.), 

rev. denied, 333 P.3d 333 (Or. 2014). 

In the instant proceeding, Petitioner raises three grounds for relief with several subparts: (1) 

insufficiency of the evidence; (2) ineffective assistance of trial counsel (seven particulars); and (3) 

ineffective assistance of appellate counsel. In his supporting brief, Petitioner addresses his 

insufficiency of the evidence claim, and four claims ofineffective assistance of counsel. Respondent 

moves the Court to deny habeas relief on the basis that Petitioner has failed to sustain his burden to 

demonstrate habeas relief is warranted on the unargued grounds; he procedurally defaulted Ground 

One and Ground Two, subpart F; and the remaining portions of Ground Two lack merit. 

STANDARDS 

Pursuant to 28 U.S.C. § 2254( d), a petition for writ of habeas corpus filed by a state prisoner 

shall not be granted, with respect to any claim that was adjudicated on the merits in state court, 

unless the adjudication resulted in a decision that was "contrary to, or involved an unreasonable 

application of, clearly established Federal law;" or "resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(l) 

& (2); Harrington v. Richter, 562 U.S. 86, 100 (2011); White v. Woodall, 134 S.Ct. 1697, 1702 

(2014). 

2 See State v. Balfour, 814 P.2d 1069, 1080 (Or. 1991) (setting forth procedure to be 

followed when appellate counsel believes appeal has no merit). 

3 - OPINION AND ORDER 

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A state court umeasonably applies clearly established federal law, if its decision is "so 

lacking in justification that there was an error well understood arid comprehended in existing law 

beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103; Woodall, 134 S.Ct. 

at 1702. A state court's factual determination is not umeasonable merely because the federal habeas ~. 

court would reach a different conclusion in the first instance. Brumfield v. Cain, 135 S.Ct. 2269, 

2277 (2015); Burt v. Titlow, 134 S.Ct. 10, 15(2013). "Instead,§ 2254( d)(2) requires that [this Court] 

accord the state trial court substantial deference." Brumfield, 135 S.Ct..at 2277. Ifreasonable minds 

reviewing the record might disagree about the finding in question, habeas relief is not warranted. Id. 

DISCUSSION 

I. Ground One - Insufficiency of the Evidence 

In his first ground for relief, Petitioner contends that there was insufficient evidence to 

establish the necessary elements of Sodomy in the First Degree and Burglary in the First Degree. 

Am. Pet. at 3; Pet'r's Br. in Supp. at 17-19. For the reasons set forth below, this Co:irt concludes that 

Petitioner procedurally defaulted this claim with respect to his burglary conviction, and that the state 

court's rejection of this claim as it relates to his sodomy conviction is neither .contrary to nor an 

umeasonable application of clearly established federal law. 

A. . Procedural Default 

Generally, a state prisoner must exhaust all available state court remedies either on direct 

appeal or through collateral proceedings before a federal court may consider granting habeas corpus 

relief. 28 U.S.C. § 2254(b)(l). A state prisoner satisfies the exhaustion requirement by "fairly 

presenting" his-claim to the appropriate state courts at all appellate stages afforded under state law. 

Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin v. Reese, 541U.S.27, 29 (2004); Carrillo4 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 4 of 19
Carrillo v. Coursey, 823 F.3d 1217, l220 (9th Cir. 2016); Casey v. Moore, 386 F.3d 896, 915-16 

(9th Cir. 2004). If the petitioner procedurally defaults his available state remedies, habeas relief is 

precluded absent a showing of cause and prejudice, or that the failure to consider the defaultedclaims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 

(1991). 

Petitioner procedurally defaulted his claim that there wa:s insufficient evidence to support his 

conviction for Burglary in the First Degree because he did not fairly present the claim to the Oregon 

Courtof Appeals and Supreme Court. On the contrary, on direct appeal Petitioner limited his 

challenge to his conviction for Sodomy in the First Degree, arguing that there was insufficient 

evidence of forcible compulsion under Or. Rev. Stat.§ 163.405(1)(a). Resp't Ex. 104 at 5; Ex. 106 

at 5. Because Petitioner can no longer raise this claim in state court, the claim is procedurally 

defaulted. See Or. Rev. Stat.§ 138.071(1) (thirty-day limitation period for direct appeal); Or. Rev. 

Stat.§ 138.510(3) (two-year limitation period for PCR petition); see also Or. Rev. Stat.§ 138.550( 4) 

(requiring petitioner to raise all available claims in first PCR petition). Petitioner has made no 

showi_ng to excuse his procedural default. Accordingly, habeas relief is precluded on Petitioner's 

claim that there was insufficient evidence to convict him of Burglary in the First Degree. 

With respect to Petitioner's assertion that there was insufficient evidence to support his 

conviction for Sodomy in the First Degree, this Court assumes without deciding that Petitioner 

exhausted this claim, by raising it on direct appeal under state law, because the state and federal 

standards for insufficiency of the evidence are identical. See Gillespie v. Taylor, No. 2: 14-cv-00062-

JE, 2015 WL 10713687, at *4-5 (D. Or. 2015) (holding that although petitioner "failed to explicitly 

refer to federal law in his state court proceedings," petitioner fairly presented federal insufficiency 

5 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 5 of 19
of the evidence claim because state and federal standards are identical); Wieland v. Thompson, No. 

I 

3:10-cv-00059-MA, 2013 WL 550504, *2-3 (D.Or. 2013), ajf'd on o!her grds., 583 F. App'x 792 

(9th Cir. 2014) (same). However, as set forth below, this Court concludes that Petitioner's 

insufficiency of the evidence claim lacks merits. 

B. Evidence of Forcible Compulsion 

"[E]vidence is sufficient to support a conviction whenever, 'after viewing the evidence in 

light mostfavorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt."' Parker v. Matthews, 132 S.Ct. 2148, 2152 

(2012}(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Cavazos v. Smith, 132 S.Ct. 2, 6 

(2011 ). "[A] state-court decision rejecting a sufficiency challenge may not be overturned on federal 

habeas [review] unless the decision was objectively unreasonable." Parker, 132 S.Ct. at 2152; 

Cavazos, 132 S.Ct. at 4. Although the sufficiency of the evidence inquiry is grounded in the 

Fourteenth Amendment, the standard must be applied with explicit reference to the substantive 

elements of the criminal offense as defined by state law. Creech v. Frauenheim, 800 F .3d 1005, 1012 

(9th Cir. 2015); Jackson, 443 U.S. at 324, n.16. 

Under Oregon law, a person "who engages in deviate sexual intercourse with another person" 

commits the crime of Sodomy in the First Degree if"[t]he victim is subjected to forcible compulsion 

by the actor." Or. Rev. ~tat. § 163.405(1)(a). "Deviate sexual intercourse" is defined as "sexual 

conduct between persons consisting of contact between the sex organs of one person and the mouth .· 

or anus of another." Or. Rev. Stat.§ 163.305(1). "'Forcible compulsion' means to compel by: (a) 

Physical force; or (b) A threat, express or implied, that places a person in fear of immediate or future 

death or physical injury to self or another person .... " Or. Rev. Stat. § 163 .305(2). 

6 - OPINION AND ORDER · 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 6 of 19
To prove forcible compulsion by "physical force," there must be evidence that the force "was 

greater iri degree or different in kind from the simple movement and contact that is inherent in the 

act of touching the intimate part of another and that the force was sufficient to compel the victim to 

submit to or engage in the sexual contact, against the victim's will." State v. 1\;farshall, 253 P.3d 

1017, 1028 (Or. 2011). To prove forcible compulsion by a "threat, express or impli~d," there must 

be evidence of some kind of communication by the defendant to the victim of intent to inflict harm." 

State v. Kawamoto, 359 P.3d 305, 313 (Or. App. 2015) (internal quotation omitted). "[A] 

defendant's 'extended episode of violence directed at [a] victim' may communicate 'an intent to 

inflict harm on the victim that was sufficient to compel [him or] her to submit to the sexual contact 

at issue."' Id. (quoting State v. Jimenez, 270 P.3d 405, 409 (Or. App. 2012)). 

Petitioner argues that there was insufficient evidence of forcible compulsion because "any 

force associated with Acosta's entry into the apartment was too remote in time to prove forcible 

compulsion six hours later when the alleged sodomy occurred." Pet'r's Br. in Supp. at 18-19. 

Petitioner further argues that any threats he allegedly made to Pettitt had no nexus or connection to 

the alleged deviate sexual act: 

The only evidence that Acosta used physical force in relation to the alleged sodomy 

is Pettitt' s testimonythat six hours after Acosta arrived, he unzipped his pants, took 

Pettitt by the nape of the neck with one hand, said "suck my dick," and "forced" 

Pettitt's head down. Pettitt testified that he said: "Ben, don't do this ... I don't want 

to do this," but Acosta "put [his] head down on [Acosta's] dick," and that he did not 

resist because he was concerned Acosta would break his beer bottle and cut his 

throat. ... Evidence that a purported victim imagined a threat is insufficient as a 

matter of law to prove forcible compulsion. Even though there was evidence that 

Acosta threatened Pettitt, the threats had no connection to any alleged deviate sexual 

act, but, rather, related to $50 that Acosta was asking Pettitt to give him. There was 

no nexus or connection between the threat and the sodomy. For these reasons, the 

State failed to produce sufficient evidence to satisfy the elements of the sodomy 

charge. 

7 - OPINION AND. ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 7 of 19
Id. at 19. 

At trial, Pettitt testified that Petitioner hit him in the chin and pushed his way into Pettitt' s 

apartment. Once inside, Petitioner made threatening and irrational comments over the course of six 

hours, and ultimately grabbed Pettitt by the back of the neck and forced him to perform oral sex: 

Q I want to talk to you about July 4th. Did Mr. Acosta come to the back and yell 

for you at some point on that day? 

A Yes, he did .... It was about 10:00, 9:30, quarter to 10:00, and he yelled up. 

He said, "I know you are fucking in that apartment." He says, "I can hear your 

TV." He said "I am going to give you five minutes to answer your door or I'm going 

to break your fucking door down." 

Q Okay. So ... you open the door and, you know, cursed at him saying; "What 

do you want?" And what happened then? 

A He had a 40-ounce bottle of Camas beer in one hand and he punched me in 

the jaw with one hand and I staggered back into my kitchen; 

A ... [H]e locked the lock. He grabbed me by the elbow and he said, "You can 

make this easy on yourself or you can make it hard on yourself." 

A And I said to hirri, "I can't believe you fucking hit rrie." He said, "I didn't hit 

you, Robert. That was a tap." He said, "Ifl hit you, I would knock you out or I would 

kill you." 

A I told him that to calm down. He sat there drinking his beer telling-me what 

a warrior he is .... He said, "Only weak people need apartments and food in the 

refrigerator. I'm a warrior. I'm military trained." 

8 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 8 of 19
He said, "I see you and you don't see me." He said, "It's not just me you got 

to worry about." He said, "It's like an octopus." He said, "I got tentacles all over the 

neighborhood." And I knew what he meant. He nieant with the drug dealers he was 

dealing with .. · .. 

Q Okay. Take us through what happened next. 

A We sat there, watched TV, he talked, drank his. beer. 

Q What types of things was he talking about? 

A He was talking about being in the military. How he was military trained and 

he kept saying, "You know, Robert, don't fuck with me." I said, "Ben, I know you, 

I've known you." He said, "No, you don't know me." 

He said, "You really don't know me." He said, "I will fucking kill you. If you 

don't give that $50 tomorrow," he said, "I will chop you up and put you in a plastic 

bag and toss you into a dumpster." And when I looked him in the eye, he meant what 

he said. 

Q Okay. Then what happened? 

A .... So we sat there and watched TV a little longer, probably around 

probably 4:00, 4:30, 4: 15, out of the comer of my-- I tum, I look, he is unzipping his 

pants and he grabbed me by the nape of the neck and he said, "Sue~ my dick." 

Q So ... that's about six hours. What's going on during that time? 

A He kept on talking about how I needed to be spiritual, how spiritual ... he 

was, how he was a warrior. He kept repeating the stuff over and over and over, again, 

like a drunk. 

A How much disrespect I had thrown on him and, you know, how everybody 

elSe in the building had treated him like shit and thrown him out and I was the only 

one left in the building and you better not disrespect me and this and that. I mean, it 

was just nonsense. 

9 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 9 of 19
Q Okay. All right. You mentioned thathe grabbed you by the back of your neck. 

Was that with one hand or two hands or do you know? 

A He grabbed me with one hand. He said, "Suck my dick." 

A I said, "Ben, don't do this." I said, "I don't want to do this~" He said, "Suck 

it just a little while; suck my dick." And he put my head down on his dick. 

Q When you state put your head down, are you meaning he used pressure? 

A Yeah, he forced me on it. 

Q Okay. Did·you try to fight or struggle back at that? 

A · Nope, I did exactly what he told me to do .... And all I can think to myself 

is, "If I don't do what he says to do, he could break that beer bottle and cut my 

throat." 

Tr. at 83-84, 86-88, 93-96, see also Tr. at 117. 

Jessica Harrison, the apartment complex manager, testified that the morning after the 

incident, Pettitt reported to her that Petitioner sexually assaulted him. Id. at 36. She advised Pettitt 

to contact the police. Id. Portland Police Officer Joseph Cook responded to Pettitt's call and 

interviewed him at his apartment. Id. at 46-4 7. According to Cook, Pettitt stated that on the evening 

of July 4, 2008, Petitioner banged on his door and when Pettitt opened it, Petitioner hit him in the 

chin and pushed his way into his apartment. Id. at 48, 67. Pettitt told Cook that Petitioner grabbed 

him by the back of the neck and "forced [him] to suck his dick." Id. at 72. Cook observed no marks 

or swelling on Pettitt' s face or neck. Id. at 54, 56, 68-69, 72. Cook testified that although he did not 

write in his report the time period between Petitioner's entry into the apartment and the sodomy, it 

was his understanding that once on the couch, the sodomy occurred within approximately twenty 

10 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 10 of 19
minutes. Id. at 57-59. Cook could not recall whether Pettitt told him that Petitioner made threats of 

violence,, but he conceded that there was no reference to threats in his incident report. Id. at 56. 

Portland Police Detective Jeff Sharp alsointerviewed Pettitt and testified that he stated that 

Petitioner threatened to kill him and "gut him," and that he was in the apartment for several hours 

before the sodomy occurred. Id. at 150-52, 157-59. Officer Sharp testified that he subsequently 

interviewed Petitioner and believed that he was feigning a mental illness. Id. at 131, 139-40, 

Although there were some arguable inconsistencies or omissions in Pettitt' s statements to 

police,, a rational trier of fact could find beyond a reasonable doubt that Pettitt' s testimony was 

credible, that Petitioner used physical force against Pettitt by grabbing his neck and pushing his head 

down, and that the force was sufficient to compel Pettitt to engage in oral sex against his will. See 

Marshall, 253 P .3d at 1028 (reasonable jury could conclude that defendant used forcible compulsion 

by forcing the victim's hand down his pants and against his penis). This is particularly true given the 

· fact that Pettitt is legally blind, suffers from an anxiety disorder, his cell phone was not working, and 

he was isolated in his apartment with Petitioner in the early morning hours. See Tr.. at 76, 89; 

Marshall, 253 P .3d at 1027-28 (considering victim's age, circumstances, and physical setting when 

determining whether physical force compelled the sexual act). 

Further, a rational trier of fact could find beyond a reasonable doubt that Petitioner's violent 

behavior when entering Pettitt' s apartment, and his threatening and irrational comments throughout 

the evening constituted an implied or express threat of harm which compelled Pettitt to engage in 

the sodomy. This is true regardless of the fact that the episode lasted approximately six hours, and 

Petitioner's violent act of hitting Pettitt in the face occurred at the beginning of the episode. See 

Jimenez, 270 P.3d at 409 (holding that jury could conclude that defendant's violent behavior during 

11 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 11 of 19
first encounter constituted an implied threat of violence in the second encounter on the same day). 

Accordingly, the state courts' rejection of Petitioner's insufficiency of the evidence claim is neither 

contrary to, nor an unreasonable application of, clearly established federal law. 3 See 28 U.S.C. § 

2254( d)(l ). 

II. Ground Two - Ineffective Assistance ofTrial Counsel 

The Supreme Court has established a two-part test to determine. whether a petitioner has 

received ineffective assistance of counsel. First, the petitioner must show that his lawyer's 

performance fell below an objective standard ofreasonableness. Stricklandv. Washington, 466 U.S. 

668, 686-687 ( 1984). This Court's review of counsel's assistance is "doubly deferential" in that this 

Court takes a highly deferential look at counsel's performance under the deferential lens of § 

2254( d). Cullen v. Pinholster, 563 U.S. 170, 196 (2011 ). When applying this deferential standard, 

it is not for this Court to second guess counsel's strategic decisions. Strickland, 466 U.S. at 689; 

Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015), cert. denied (2016). 

Second, a petitioner must show that his lawyer's performance prejudiced the defense. The 

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." 

Strickland, 466 U.S. at 694. A reasonable probability is one which is sufficient to undermine 

3 To the extent that Petitioner is also asserting a due process violation or freestanding 

claim of actual innocence (see Pet'r's Br. in Supp. at 19-20), this Court denies habeas relief 

because the claim was not pled in his Amended Petition, the claim was procedurally defaulted in 

state court, the Supreme Court has yet to recognize a freestanding claim of actual innocence and, 

in any event, Petitioner has not affirmatively proven that he is probably innocent. See Moon v. 

Coursey, No. 3:10-cv-00616-BR, 2016 WL 4059659, at *11-12 (D. Or. 2016) (addressing 

cognizability and standards governing due process and freestanding claims of actual innocence). 

12 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 12 of 19
confidence in the outeome of the trial. Id. at 696. In evaluating proof of prejudice, this Court 

considers the totality of the evidence. Id. "[A] verdict or conclusion only weakly supported by the 

record is more likely to have been affected by errors than one with overwhelming record support." 

Id. 

A. "Failing to Articulate Available Meritorious Arguments for Acquittal" 

(Grounds 2(E) and (F)) 

In Ground Two of his Amended Petition, Petitioner alleges seven instances of ineffective 

assistance of counsel. Am. Pet. at 3-4. In Ground 2(E), Petitioner alleges that trial counsel was 

deficient in moving for a judgment of acquittal. In Ground 2(F), Petitioner alleges a multitude of 

deficiencies in counsel's performance at trial, including opening statements, cross-examination, and 

closing argument. Id. at 4. In his supporting brief, under the heading "Counsel Was Ineffective for 

Failing to Articulate Available Meritorious Argumerits for Acquittal" (see Pet'r' s Br. in Supp. at 21 ), 

Petitioner conflates Grounds 2(E) and (F), arguing that defense counsel: 

(1) raised only a general motion for judgment of acquittal and never articulated the 

elements the State was obligated to prove to establish burglary and sodomy, did not 

tell the court why the State's evidence was insufficient, and did not counter the 

State's central argument that Pettitt was credible; 

(2) twice failed to object to improper vouching and failed to effectively develop 

evidence, through cross-examination or defense witnesses, to counter the 

prosecution's position that Pettitt was credible; 

(3) failed to develop any alternative narrative of what occurred or supply reasons why 

Pettitt would have fabricated his story; 

(4) failed to establish through cross examination of Pettitt or the interviewing 

detective that Pettitt had told inconsistent stories; 

(5) in his opening statement, motion for judgment as a matter of law, and closing 

arguments, did not address the elements of the offenses, made inappropriate 

13- OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 13 of 19
arguments, and failed to identify the ten major discrepancies he iritended to prove at 

trial; and 

(6) failed to articulate effective arguments (relative to the elements of the offenses) 

in support of his motion for acquittal and during closing argument. · 

Pet'r's Br. in Supp. at 21-25. Petitioner concludes that "(b]ut for counsel's failure, the trial court 

would have been required to grant acquittal." Id. at 25. 

Respondent correctly notes that Petitioner procedurally defaulted Ground 2(F) by failing to 

include it in his Amended Petition for Post-Conviction Relief (Resp't Ex. 109) or an appeal from 

the denial of post-conviction relief (see Resp't Exs. 127, 128). Petitioner has not demonstrated cause 

and prejudice to excuse his default, or demonstrate that a fundamental miscarriage of justice will 

ensue if this Court fails to consider the claim. Accordingly, habeas relief is precluded as to the · 

allegations contained in Ground 2(F). 

In Ground 2(E), Petitioner alleges that trial counsel failed "to perform effectively with regard 

to the motion for judgment of acquittal, including failing to make viable legal arguments. Am. Pet. 

at 4. At the state PCR proceeding, Petitioner argued that "(t]he evidence introduced by the state at 

trial was not sufficient to establish the element of forcible compulsion as defined in ORS i63.305." 

Resp't Exs. 109, 110, 126, 128. In the instant proceeding, in contrast, Petitioner focuses on different 

deficiencies, arguing that trial counsel rendered ineffective assistance when he moved for a judgment 

of acquittal without "articulat[ing] the elements that the State was obliged to prove to establish 

burglary and sodomy, nor told the court why the State's evidence was insufficient, nor countered the 

State's central argument, which was that Pettitt' s story was credible and that he had.no reason to lie." 

Pet'r's Br. in Supp. at 21 (emphasis added). 

14 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 14 of 19
To the extent that Petitioner is arguing that trial counsel was ineffective when he moved for 

a judgment of acquittal on the burglary charge, the claim is procedurally defaulted because 

Petitioner did not raise the claim in his Amended PCR Petition or on appeal from the denial of postconviction relief. Petitioner has not demonstrated cause and prejudice to excuse his default or that 

a fundamental miscarriage of justice will ensue if this Court refused to consider the claim. 

To the extent that Petitioner is arguing that trial counsel was ineffective when he moved for 

a judgment of acquittal on the sodomy charge, this Court will consider Petitioner's arguably new 

contentions in support of the claim because they do not fundamentally alter it. See Dickens v. Ryan, 

740 F.3d 1302, 1318-19 (9th Cir. 2014) (claim is fairly presented to state courts for purposes of 

exhaustion provided new factual allegations do not fundamentally alter the claim considered by the 

state courts). 

Nevertheless, as discussed above, there was sufficient evidence for a rational trier of fact to 

conclude all elements of Sodomy in the First Degree were satisfied beyond a reasonable doubt. For 

the same reason, this Court concludes that Petitioner has. failed to demonstrate a reasonable 

probability that, but for trial counsel's failure to (1) articulate the elements of the offense, (2) tell the 

court why the State's evidence was insufficient, (3) counter the State's argument that Pettitt was 

credible, or ( 4) challenge the evidence of forcible compulsion when moving for a judgment of 

acquittal, the trial court would have granted an acquittal. See State v. White, 154 P.3d 124, 129 (Or. 

App. 2007) (setting for standard for acquittal). Accordingly, the state PCR court's rejection of this 

claim is neither contrary to, nor an unreasonable application of, clearly established federal law. See 

28 U.S.C. §' 2254(d)(l). 

Ill 

15 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 15 of 19
B. Waiver of Jury Trial and Right to Testify 

In Grounds 2(A) and (B), Petitioner alleges that trial counsel failed to (1) "ensure that 

Petitioner's waivers ofhis right to trial by jury and to testify was knowing, intelligent and voluntary;" 

and (2) advise Petitioner of "the benefits and consequences of ... waiving his right to trial by jury 

versus' having a bench trial, and waiving his right to testify versus testifying on his own behalf." Am. ' I j I • 

Pet. at 3. In support of these grounds, Petitioner argues: 

Acosta waived his right to trial by jury because his attorney told him that his 

testimony was essential to his defense and the trial judge would be able to disregard 

his criminal history while a jury would be negatively affected by it. In the midst of 

trial, counsel changed course and advised petitioner not to testify. Acosta followed 

his attorney's advice, and elected not to testify, but felt he had insufficient time to 

carefully discuss this important issue with his counsel and understand the inipact of 

his decision, An attorney exercising reasonable professional skill and judgment 

would not have instructed his client to waive a jury trial as a tactical decision made 

to facilitate the client's testimony and thereafter advise the client not to testify. But 

for counsel's advice, Acosta would not have waived his right to a jury trial and would 

have testified in his own defense. Petitioner's testimony would have been persuasive 

and would have contradicted Pettitt's unopposed testimony. Acosta's testimony 

would have provided the jury a necessary alternative to Pettitt's account, andevidence to support the argument that Pettitt had fabricated his account. 

Pet'r's Br. in Supp. at 26. 

Prior to trial, the court discussed Petitioner's desire to waive his right to a jury. Petitioner 

stated that he read and understood the waiver form, that his attorney went over the form with him, 

that he understood his right to a jury trial, and that he wished to waive that right. Tr. 16-17. 

Additionally, Petitioner signed a Waiver of Jury Trial form in which Petitioner affirmed that his 

attorney explained to him his right to a jury trial. Resp't Ex. 117. At the PCR proceeding, defense 

counsel submitted a Declaration confirming that he explained tff Petitioner his constitutional rights 

I 

to a jury and to testify, and outlined the reasons he advised Petitioner to waive those rights: 

16 - OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 16 of 19
My general practice is to tell all new clients that they and they alone get to make 

three important decisions in their case: (1) whether to go to trial or work out a plea 

bargain; (2) if they decide to go to trial, decide whether it should be jury or bench 

trial and (3) if they decide to. go to trial, whether to testify at trial. I followed my 

general practice in this case. I also told Mr. Acosta that he had an absolute 

constitutional right to a jury trial, and that he alone could make that decision . 

. . . . Mr. Acosta's case was assigned-to· a judge whom I knew from 

experience to be a very fair adjudicator of criminal cases. I advised Mr. Acosta to 

choose a bench trial over a jury trial; however, I made sure to advise Mr. Acosta that 

he could reject my advice and that he alone could decide whether to have a bench 

trial or jury trial. I so advised Mr. Acosta because he had an extensive criminal record 

and ifhe wanted to testify, a jury would be more swayed by his criminal record than 

a judge would. I also felt that I had a better chance of prevailing on a "reasonable 

doubt" argument with a bench trial than I would have had with a jury trial. I also told 

Mr. Acosta that some jurors would be biased just by the seriousness of the charges. 

Given the type of charges, and leaving open the possibility of testifying, I believed 

he would have a better chance of winning with a bench trial than a jury trial. 

Petitioner alleges "In the middle ofpetitioner' s trial, after he had waived his 

right to a jury trial, counsel reversed course and repeatedly told petitioner that he 

would lose the case if he testified in his own behalf." I never made that statement 

once, let alone "repeatedly," and I can't imagine telling a client he would lose by 

testifying. I always tell clients that it is their decision to testify or not. Mr. Acosta told 

me at some point that he did not want to testify, and I cannot remember when he told 

me that. I had all the evidence I needed to make a strong "reasonable doubt" 

argument without his testimony. My opponent, Chris Rarnras, was a very experienced 

DDA and, based on my previous experiences with DDA Rarnras, I believed he would 

have subjected Mr: Acosta to a withering cross-examination. I believe that Mr. 

Acosta's testimony would not have changed the outcome because the factfinder made 

clear while announcing his verdict that he believed the victim. 

3. Mr. Acosta alleges that his waiver of his right to testify was not 

knowing, voluntary and intelligent. In my professional opinion, and based on my 

interactions with Mr. Acosta, and after advising him of his right to testify, I believe 

his waiver was knowing, intelligently, and voluntarily made. 

Resp't Ex. 116 at 2-3. 

Petitioner, in contrast, testified at the PCR proceeding that he waived his right to a jury trial 

because, he intended to testify and his attorney told him that a judge would be less ·swayed by his 

17 -.OPINION AND ORDER 

Case 6:14-cv-01458-KI Document 46 Filed 03/30/17 Page 17 of 19
prior convictions than a jury. Resp't Ex. 124 at 8. Petitioner testified.that had he known his attorney 

would subsequently advise him not to take the stand, he would not have waived his right to a jury 

trial. Id. at 8-9. 

The PCR Court denied relief, holding that (1) it was reasonable for defense counsel to 

suggest that Petitioner waive a jury trial given his "extensive criminal history and ... [the] 

vulnerability of the victim;" (2) Petitioner "clearly understood that he had a right to a jury trial and 

he knowingly waived that tight;" (3) defense counsel "did not commit errors;" (4) Petitioner failed 

to demonstrate that ifhe testified the result of the trial would have been different; and (5) Petitioner's 

testimony at the PCR proceeding "on the important issues" was not credible. Id. at 20-21. 

In the instant proceeding, Petitioner has failed to demonstrate that the PCR Court's finding 

that his testimony was not credible is an unreasonable determination of the facts in light of the 

evidence presented. See 28 U.S.C. § 2254(d)(l). 4 Further, in light of defense counsel's Declaration 

that ( 1) he advised Petitioner of his constitutional rights and that he alone must decide whether to 

waive those rights; (2) he conveyed the reasons why he believed Petitioner had a better chance of 

prevailing with a bench trial; (3) Petitioner decided not to testify; ( 4) he never told Petitioner he 

would lose if he testified; and (5) he believed the district attorney would subject Petitioner to a 

"withering cross-examination," Petitioner has failed to demonstrate that defense counsel's advice 

was deficient, or that there is a reasonable probability that, but for counsel's performance, the result 

4 Because the Court concludes that the state court decision is not based on an 

unreasonable determination of the facts, it need not address the relationship between 2254( d)(2), 

and the more deferential standard set forth in 2254(e)(l) (giving a presumption of correctness to 

state court factual determinations). See Brumfield v. Cain, 135 S.Ct. 2269, 2282 (2015) 

(declining to resolve the "apparent conflict"); Murray v. Schriro, 745 F .3d 984, 1000-01 (9th Cir. 

2014) (recognizing inconsistency in Ninth Circuit decisions applying these standards). 

18 - OPINION AND ORDER 

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of the trial would have been different. Accordingly, the PCR court's rejection of this claim is neither 

contrary to, nor an umeasonable application of clearly established federal law. See 28 U.S.C. § 

2254( d)(2). 

C. Unargued Claims 

As to the remaining portions of Ground Two not argued by Petitioner or addressed by the 

Court above, Petitioner has failed to sustain his burden to demonstrate that habeas relief is warranted. 

See Lambert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004) (petitioner bears burden of proving 

habeas relief warranted). Accordingly, habeas relief is denied. 

III. Ground Three - Ineffective Assistance of Appellate Counsel 

In his Third Ground for Relief, Petitioner alleges that appellate counsel was deficient in 

failing to raise and preserve "meritorious issues on appeal, including but not limited to failing to 

pursue on appeal the imposition of a Measure 11 presumptive sentence." Am. Pet. at 4. Petitioner 

did not address this claim in his supporting brief and has failed to demonstrate that habeas relief is 

warranted. See id. 

CONCLUSION 

Based on the foregoing, this Court denies f etitioner' s Amended Petition for a Writ of Habeas 

Corpus (ECF No. 19). Because Petitioner has not made a substantial showing of the denial of a 

constitutional right, a Certificate of Appealability is DENIED. See 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED. 

7_ ·fl._ 

DATED this zQ__ day of March, 2017. 

19 - OPINION AND ORDER 

/Jq;~L n r::._0

· 

Garr1M. King 

United States District Judge . 

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