OPINION & ORDER - 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CALEB BREWER, No. 2:14-cv-00925-AC

Petitioner, OPINION & ORDER

v.

JERRI TAYLOR, Superintendent,

Two Rivers Correctional Inst.,

Respondent.

Kristina Hellman

Federal Public Defenders

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

Attorney for Petitioner

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OPINION & ORDER - 2

Ellen F. Rosenblum

Frederick M. Boss

Samuel A. Kubernick

Department of Justice

1162 Court Street NE

Salem, Oregon 97301

Attorneys for Respondent

HERNÁNDEZ, District Judge:

Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus 

action pursuant to 28 U.S.C. § 2254. Magistrate Judge John Acosta issued his Findings and 

Recommendation (“F&R”) on October 20, 2016, recommending that Petitioner’s Amended 

Petition for Writ of Habeas Corpus be denied. ECF 37. Petitioner timely filed his objections to 

the F&R. ECF 42. The Court declines to adopt the F&R and orders that the Amended Petition for 

Writ of Habeas Corpus be GRANTED. 

BACKGROUND

At this point, the parties are well versed in the facts giving rise to Petitioner’s conviction; 

a detailed recitation of the factual background can be found in Judge Acosta’s F&R and the 

Court will not repeat it here.

A jury convicted Petitioner on two charges of Attempted Murder and the trial judge 

sentenced him to 180 months of imprisonment followed by a period of post-prison supervision. 

Petitioner alleges an ineffective assistance of counsel claim on the basis that his “trial attorney 

failed to take exception to the trial court’s refusal to instruct the jury that Menacing constitutes a 

lesser-included offense of Attempted Murder, thereby precluding appellate review of the issue.” 

Pet. Br. at 15, ECF 23. The post-conviction relief (“PCR”) court denied relief stating:

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I’m denying post-conviction relief. I’m finding that the 

[trial] Court made it clear that it wasn’t going to give any [lesserincluded offense instructions] on the Attempted Murder. 

The attorney did not except and decided instead to argue all 

or nothing on Attempted Murder. That was not an unreasonable 

strategy decision based on the facts presented in this case. . . .

The appellate attorney could not raise the [lesser-included 

offense] menacing since the issue was not preserved. Therefore, 

there’s no inadequacy or any prejudice on the part of the appellate 

attorney.

And. Finally, there’s insufficient evidence of any 

inadequacy or any prejudice by trial attorney. 

Resp. Ex. 125 at 14–15, ECF 16. Petitioner argues that his claim is entitled to de novo review as 

opposed to the deferential review under 28 U.S.C. § 2254(d), because his claim was not 

“adjudicated on the merits.” Petitioner asserts that the PCR court misconstrued the link between 

the claimed error and the resulting prejudice. Specifically, that the “PCR judge analyzed the 

claim by asking whether the trial court would have changed its ruling had Petitioner’s attorney 

taken exception, instead of asking whether Petitioner would be precluded from pursuing an issue 

on appeal.” F&R at 7. The F&R found that, notwithstanding the PCR court’s error, Petitioner’s 

claim was “adjudicated on the merits” and he was not entitled to de novo review. F&R at 8. 

Applying deferential review under § 2254, the F&R found that Petitioner’s ineffective assistance 

of counsel claim failed and he was not entitled to habeas relief. Id.at 14–15. Finally, the F&R 

recommended that Petitioner should be denied a certificate of appealability because he failed to 

make a substantial showing of the denial of a constitutional right. Id. at 15.

Petitioner made three objections to the F&R. First, he renewed his argument that the PCR 

court did not adjudicate his claim “on the merits” and he was entitled to de novo review. Obj. to 

F&R at 1–2. Second, Petitioner objected to the F&R’s finding that he would not have prevailed 

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on appeal had he preserved a challenge to the denial of the Menacing instruction. Id. at 3. Third, 

Petitioner objected to the F&R’s recommendation to deny his certificate of appealability.

STANDARD

When a party objects to any portion of the Magistrate Judge’s F&R, the district court 

must make a de novo determination of that portion of the Magistrate Judge’s report. 28 U.S.C. 

§ 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 

DISCUSSION

I. Proper Standard of Review

Pursuant to 28 U.S.C. § 2254(d), habeas corpus relief shall not be granted with respect to 

any claim that was “adjudicated on the merits in State court proceedings unless the 

adjudication . . . 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;” or (2) was 

“based on an unreasonable determination” of the facts. In the Ninth Circuit:

[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on 

the merits’ for purposes of § 2254(d) when it has decided the 

petitioner’s right to post conviction relief on the basis of the 

substance of the constitutional claim advanced, rather than denying 

the claim on the basis of a procedural or other rule precluding state 

court review on the merits.

Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Deferential review is inapplicable where 

the state court does not reach a decision on the merits and courts instead apply de novo review. 

Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).

Ineffective assistance claims are analyzed under the two-part Strickland test: (1) 

petitioner must show that counsel’s performance was constitutionally deficient; and (2) that the 

deficient performance prejudiced the petitioner so “as to deprive the defendant of a fair trial, a 

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trial whose result is unreasonable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Where 

the claimed deficiency involves the failure to preserve an issue for appeal “the appropriate 

prejudice inquiry asks whether there is a reasonable likelihood of a more favorable outcome on 

appeal had the claim been preserved.” Clark v. Ryan, No. CV-09-8006-PCT-JAT(JRI), 2011 WL

7553504, at *53 (D. Ariz. Nov. 18, 2011) (quoting Davis v. Sec’y of Dept. of Corrections., 341 

F.3d 1310, 1316 (11th Cir. 2003)); see also Burdge v. Belleque, No. 07-35685, 2008 WL 

3853445, at *5 (9th Cir. Aug. 15, 2008) (holding that trial counsel’s failure to preserve an 

sentencing issue for appeal under Oregon law prejudiced petitioner because the outcome would 

have been different on appeal). 

Here, the PCR court misapplied the prejudice prong of Petitioner’s ineffective assistance 

of counsel claim. The PCR court incorrectly framed the prejudice inquiry by asking whether 

there was a reasonable likelihood that the trial court would have changed its decision. The 

proper inquiry should have been whether there was a reasonable likelihood that Petitioner would 

have prevailed on appeal. The Court agrees with Petitioner that the PCR court never decided his

case “on the substance of the claim advanced.” Obj. to F&R at 3 (quoting Lambert, 393 F.3d at 

967). In other words, the PCR court adjudicated a different claim from the one Petitioner 

advanced. Accordingly, the Court finds that there was no “adjudication on the merits” for 

§ 2254(d) purposes and Petitioner’s claim is entitled to de novo review.

II. Petitioner’s Ineffective Assistance of Counsel Claim

Once more, to show ineffective assistance of counsel, a petitioner must satisfy both parts 

of the Strickland test. First, the petitioner “must show that counsel’s representation fell below an 

objective standard of reasonableness.” Strickland, 466 U.S. at 687. “Judicial scrutiny of 

counsel’s performance must be highly deferential.” Id. Further, courts “must indulge a strong

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presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance” and the petitioner must overcome the presumption that the “challenged action might 

be considered a sound trial strategy.” Id. at 689 (quotation and citation omitted).

Second, the petitioner must show that counsel’s errors prejudiced the defense “as to 

deprive the defendant of a fair trial, a trial whose result is unreasonable.” Id. at 687. The 

prejudice prong requires showing that “but for counsel’s unprofessional errors, the result would 

have been different.” Id. at 694. “That requires a ‘substantial,’ not just ‘conceivable,’ likelihood 

of a different result.” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Harrington v. 

Richter, 562 U.S. 86, 105 (2011)).

A. Trial Counsel’s Representation

At trial, Petitioner was represented by Charles Wiseman and Dawn McIntosh. During 

opening statements, McIntosh told the jury that “[t]here’s lesser included offenses, and that’s 

what [Petitioner] is guilty of, something less.” Tr. at 54, ECF 17. 1 After the close of the State’s 

case, the jury took a recess and McIntosh moved for jury instructions on three lesser-included 

offenses: Assault in the Third Degree, Reckless Endangering, and Menacing. Tr. at 330–40. The 

trial court refused to give the instructions and the Defense proceeded with its case. Tr.341–43. 

After closing arguments, the trial court gave the jury its instructions and the jury retired for 

deliberations. Tr. 435–454. At that point, the trial court solicited exceptions from the parties and

defense counsel took exception to the court’s rulings as to the Assault in the Third Degree and 

Reckless Endangering instructions. Tr. at 454. Defense counsel did not take exception to the trial 

court’s refusal to give the Menacing instruction. Id.

 

1 Citations to “Tr.” refer to the trial record transcript, filed here as ECF No. 17. 

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During PCR proceedings, the State submitted an affidavit from Wiseman explaining 

defense counsel’s reasoning for failing to except the trial court’s refusal to give the Menacing 

instruction:

On the subject of lesser included offenses, both of the victims were 

injured, albeit one just barely, and so Dawn McIntosh and I argued 

that this should give rise to the lesser included offense of assault. 

The lesser included offense (LIO) of menacing, although we 

offered it, frankly understates the severity of the crime and I did 

not expect we would receive the instruction. I felt that to insist on 

anything less than assault would ignore the seriousness of the 

crime and create a negative credibility factor with the jury with 

regard to both victims. After all, Mr. Brewer could have fired into 

the air, but he shot at the victims. To the best of my recollection, 

he fired and hit one of them in the leg and may have shot the other 

in the back. He did not shoot way over their heads, which would be 

much more in keeping with a menacing LIO. I wanted to be

credible with the jury and wanted a lesser included offense that 

was reasonable.

After the judge ruled that he would not permit any LIOs for the 

attempted murder charges, I realized that strategically, it would be 

wiser to proceed without LIOs and force the jury to make an “all or 

nothing” decision on the attempted murder charges. As I argued to 

the jury, the fact that petitioner could have but did not kill anyone 

based on his sheer proximity to the victims demonstrated that he 

did not intend to kill them. More likely, he was just trying to scare 

them.

Resp. Ex. 117 at 1–2. Petitioner argues that counsel acted objectively unreasonably by not taking 

exception to the trial court’s refusal to give the Menacing instruction. Pet. Br. at 20. Specifically, 

Petitioner asserts that there was no conceivable strategic decision for failing to except. Id.; see 

also Higgins v. Renico, 470 F.3d 624, 632 (6th Cir. 2006) (citing Strickland, 466 U.S. at 689) 

(holding that counsel “cannot be adjudged ineffective for performing in a particular way in a 

case, so long as the approach taken ‘might be considered sound trial strategy’”). 

At issue is defense counsel’s failure to except. Petitioner argues that defense counsel’s 

failure had no conceivable effect on the “all or nothing” strategy because counsel did take 

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exception to two other lesser-included offense instructions and exceptions were taken after 

closing arguments outside of the presence of the jury. Pet. Br. at 22–23. Further, exceptions were 

taken after the jury had already been instructed. Tr. 435–54. The Court finds Petitioner’s 

argument persuasive and Respondent appears to concede the first prong of the Strickland test as 

it presents no argument on this issue in either its response to the habeas petition or in its response 

to Petitioner’s objections. Defense counsel’s failure to preserve the issue for appeal had no 

conceivable effect on its “all or nothing” strategy at that point in the trial and it could not have 

been considered to be a sound trial strategy. See Davis, 341 F.3d at 1315–16 (“Under no readily 

conceivable circumstance will a simple failure to preserve a claim—as opposed to a failure to 

raise that claim in the first instance—have any bearing on a trial’s outcome.”). The issue was 

taken up outside of the presence of the jury and had no bearing on the defense’s credibility with 

the jury. Accordingly, Petitioner has satisfied the first prong of the Strickland test.

B. Prejudice

Next, the Court must ask, but for counsel’s deficient action, was it reasonably likely that 

Petitioner would have prevailed on appeal had the issue been preserved. In Oregon, the courts 

“review the refusal to instruct the jury on a lesser-included crime for errors of law. In doing so, 

[they] review the evidence in the light most favorable to the establishment that would require 

those instructions.” State v. Moses, 165 Or. App. 317, 318, 997 P.2d 251, 253, rev. den., 331 Or. 

334, 23 P.3d 986 (2000) (internal quotations and citations omitted). 

Under Oregon law, a crime is a lesser-included offense of another crime if the “elements 

of the former are subsumed in the latter,” or “the facts alleged in the charging instrument 

expressly include conduct that describes the elements of the lesser-included offense.” State v. 

Cook, 163 Or. App. 578, 581, 989 P.2d 474 (1999). Petitioner does not argue that Menacing is 

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subsumed in Attempted Murder. Instead, Petitioner asserts that the facts alleged in the charging 

instrument and the evidence adduced at trial would have permitted the jury to convict Petitioner 

of Menacing rather than Attempted Murder.

The two charges of Attempted Murder alleged that Petitioner “unlawfully and 

intentionally attempt[ed] to cause the death of another human being.” Resp. Ex. 104 at 1–2; Or. 

Rev. Stat. (“O.R.S.”) § 163.115(1)(a). Under Oregon law, a person commits the crime of 

Menacing “if by word or conduct the person intentionally attempts to place another person in 

fear of imminent serious physical injury.” O.R.S. § 163.190. 

In Trotter, the Oregon Court of Appeals reiterated that “attempted murder with a firearm 

includes . . . menacing as [a] lesser-included offense[].” Trotter v. Santos, 212 Or. App. 473, 476, 

157 P.3d 1233, 1235 (2007). The Trotter court explained that: “If a criminal defendant is charged 

with attempted murder with a firearm, a jury may properly convict the defendant of either 

attempted assault or menacing or both if the evidence establishes that the conduct charged as 

attempted murder also constitutes those lesser included offenses.” Id. at 477, 147 P.3d at 1236. 

The defendant in Trotter pointed a gun directly at a victim, “who grabbed the gun and pushed it 

up as it went off.” Id. 475, 147 P.3d at 1235. The bullet missed the victim “but the shot left 

powder burns on his neck.” Id. The court held that the failure to give the menacing instruction 

was prejudicial to the petitioner because the facts of the case warranted the instruction and the 

jury did not have a complete statement of the law upon which to render a proper verdict. Id. at 

477–78, 147 P.3d at 1236; see also State v. Leckenby, 200 Or. App. 684, 691, 117 P.3d 273, 276 

(2005) (holding that while the jury must consider and reject the offense charged before 

considering the lesser offense, the jury “must still have before it the instruction on the lesser 

offense if the evidence would support it”).

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Similarly, in Moses, the Oregon Court of Appeals held that it was error for the trial court 

to refuse to give defendant’s requested lesser-included offense instruction where the “allegations 

of the indictment include the necessary elements and defendant’s evidence support giving of a 

lesser-included instruction.” 165 Or. App. at 323, 997 P.2d at 255. In Moses, the defendant fired

several shots into a van filled with six people, injuring one passenger. Id. at 319, 997 P.2d at 253.

The defendant was convicted, in relevant part, on one count of attempted aggravated murder and 

first-degree assault. Id. at 252, 997 P.2d at 252. At issue was whether the trial court erred for 

failing to give an instruction on reckless endangerment. The Moses court held that even though 

the jury found that the defendant had acted intentionally, the trial court nonetheless erred in 

failing to give an instruction on reckless endangerment:

[Defendant] asserts that he acted recklessly regarding all of the 

shots fired. Although requested by defendant, the jury was never 

permitted to evaluate whether defendant acted recklessly when he 

fired the shots. The fact that he may have been found to have 

intentionally fired the shots at the driver and in the direction of the 

female passenger does not obviate that problem. Because the court 

did not give the lesser-included instructions, the jury did not have a 

complete statement of the law, and we are unable to determine 

what the verdict would have been had the jury been properly 

instructed.

Id. at 256, 997 P.2d at 326; see also State v. Naylor, 291 Or. 191, 197–98, 629 P.2d 1308, 1311

(1981) (holding that the failure to give the requested instruction “resulted in the case being 

submitted to the jury without a complete statement of the law” and the court was “unable to say 

what the verdict would have been had the theory of the defense been properly presented to the 

jury”).

In this case, the defense’s central theory was that Petitioner intended only to scare the 

victims. During opening statements, defense counsel began by saying “[l]et me tell you right off 

the bat, this is not an Attempted Murder case. This is something less than attempted murder[.]” 

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Tr. 50. Counsel went on to argue that given Petitioner’s proximity to the victims when he fired 

the shots, if he intended to kill them then this would be a homicide case; “[b]ut his intent was to 

scare them, and that’s what he told the police that night . . . I just wanted to scare them because 

they insulted my girlfriend.” Tr. 53–54. Defense concluded by arguing that the “judge is going to 

tell you that there’s more to consider than Attempted Murder and Assault. There’s lesser 

included offenses, and that’s what [Petitioner] is guilty of, something less.” Tr. 54. At closing 

argument, defense counsel reiterated that “[i]f it was intentional, it was intentional to scare.” Tr. 

412.

After reviewing the entire trial record, the Court finds that there is a substantial likelihood 

that the Oregon Court of Appeals would have concluded that the allegations in the indictment 

and Petitioner’s evidence adduced at trial supported giving the lesser-included instruction of 

Menacing. The indictment concerning the Count 1 for Attempted Murder charges: “The 

defendant, on or about August 24, 2005, in Clatsop County, State of Oregon, did unlawfully and 

intentionally attempt to cause the death of another human being, to-wit Vincent Fritzie[.]” Resp. 

Ex. 104 at 1. Multiple witnesses testified that at least one of the shots Petitioner fired was 

directed into the ground. Tr. 116, 226. Further, there was conflicting evidence as to whether the 

bullet that passed through Fritzie’s upper thigh was a direct shot or a ricochet that bounced off of 

the ground. Tr. 106, 109, 115–16, 270–74. No expert testimony was given at trial on the issue of 

ricochets, bullets went missing from the crime scene, and the location of the bullet holes in the 

surrounding area was disputed. Tr. 197–200, 204, 272–73, 300. Similarly, an officer testifying as 

a fact witness, not as an expert witness, stated that he “believed” that the mark on DeJoode’s 

back was consistent with a bullet grazing him. Tr. 194. That same night, DeJoode had previously 

been knocked to the ground by Petitioner’s punch and had jumped into bushes to avoid being 

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shot. Tr. 88, 96, 214. In other words, evidence adduced at trial supported the contention that 

Petitioner may have attempted only to scare the victims and an instruction on the lesser-included 

offense of Menacing was warranted.

The Court finds that Trotter and Moses control here. In both cases the State argued that 

the defendants acted with the intent to kill and the defendants contended that they acted with 

different intents. Similarly, the allegations in the indictment and Petitioner’s evidence adduced at 

trial supported giving the requested lesser-included offense instruction. In both cases the juries 

found that the defendants had acted with the intent to kill, and in both instances the Oregon Court 

of Appeals reversed, in part, because the trial courts failed to put lesser-included offenses before 

the juries. Here too, the jury did not have a “complete statement of the law” and the Court must 

“conclude that failure to request the instruction was prejudicial to petitioner.” Trotter, 212 Or. 

App. at 478, 157 P.3d at 1236. Because the jury did not have a complete statement of the law, the 

appellate courts would likely be “unable to say what the verdict would have been had the theory 

of the defense been properly presented to the jury.” Moses, 165 Or. App. at 236, 997 P.2d at 256 

(Quoting Naylor, 291 Or. at 197–98, 629 P.2d 1308).2 Accordingly, but for counsel’s deficient 

action, it was substantially likely that Petitioner would have prevailed on appeal had the issue 

been preserved.

//

//

//

//

 

2

The predictability of the outcome in this case is further complicated by the facts that the verdict 

was not unanimous, it was ten to two, and evidence came to light at trial that at least some jurors 

considered Petitioner’s silence and a newspaper article during deliberations. Tr. 464, 508–09, 

541–42, 553–54.

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CONCLUSION

The Court declines to adopt the F&R. The Court also GRANTS Petitioner’s Amended 

Writ of Habeas Corpus, VACATES his conviction and sentence as to Count 1 and Count 2 of the 

Amended Indictment for Attempted Murder, and ORDERS Respondent to release him unless the 

State of Oregon retries him within 60 days.

Dated this day of ______________________, 2017. 

MARCO A. HERNÁNDEZ

United States District Judge

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