IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RICHARD BERCUME, 

Case No. 6:14-cv-01545-JE 

Petitioner, 

v. 

GUY HALL, 

FINDINGS AND RECOMMENDATION 

Respondent. 

Richard Bercume, #13231193 

Santiam Correctional Institution 

4005 Aumsville Highway SE 

Salem, OR 97317 

Petitioner, Pro Se 

Ellen F. Rosenblum, Attorney General 

Samuel A. Kubernick, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - FINDINGS AND RECOMMENDATION 
JELDERKS, Magistrate Judge. 

Pe ti ti oner brings this habeas corpus case pursuant to 28 

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

convictions. For the reasons that follow, the Amended Petition for 

Writ of Habeas Corpus (#9) should be denied. 

BACKGROUND 

Petitioner was initially charged in August 2010 by information 

in Lane County with two counts of Theft in the First Degree, one 

count of Theft in the Second Degree, and one count of Unlawful 

Possession of Methamphetamine. Respondent's Exhibit 102. After 

the Lane County District Attorney amended the information twice, 

petitioner was charged with six counts of Theft in the first 

Degree, two counts of Unlawful Possession of Methamphetamine, one 

count of Identity Theft, and two counts of Burglary in the Second 

Degree. Respondent's Exhibit 104. Petitioner elected to plead 

guilty to those charges, and the trial court sentenced him to 105 

months in prison. Respondent's Exhibit 110. 

Petitioner did not take a direct appeal, and instead proceeded 

to file for post-conviction relief ("PCR") in Malheur County where 

the PCR trial court denied relief. Respondent's Exhibit 124. The 

Oregon Court of Appeals affirmed the PCR trial court's decision 

without opinion, and the Oregon Supreme Court denied review. 

Bercume v. Nooth, 261 Or. App. 476, 325 P.3d 844, rev. denied, 355 

Or. 380, 328 P.3d 696 (2014). 

2 - FINDINGS AND RECOMMENDATION 
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on 

September 25, 2014 raising five grounds for relief: 

Ground One: Denial of effective assistance of 

counsel. 

Supporting Facts: Attorney did not bring up 

the issue of the current value of golf clubs, 

mountain bike, and electronics. ORS 164.055. 

Items listed above (current value is under 

1,000); 

Ground Two: Conviction obtained by the 

unconstitutional failure of the prosecution to 

disclose to defendant evidence favorable to 

the defendant/Denied of effective assistance 

of counsel. 

Supporting Facts: Inconsistent match of boots 

at crime scene (Lab results from state 

police). DNA results did not match crime 

scene DNA (Lab results from state police) . 

Burglary in the 2nd Degree (Count 10) was 

vacated but still doing time, plea deal same 

and still owe same restitution. 

Ground Three: Denial of effective assistance 

of counsel. 

Supporting Facts: Did not call witnesses 

(Megan Long and Alex Bercume) . Witnesses to 

the fact that defendant bought items and did 

not steal them. 

Ground Four: Denial of effective assistance of 

counsel. 

Supporting Facts: On Count 3, charged as Theft 

I, which was a misdemeanor (same items as in 

Count 4) but was not dropped to a misdemeanor. 

Ground Five: Denial of effective assistance of 

counsel. 

Supporting Facts: Was not granted a fast and 

speedy trial as requested (documented) . 

Respondent asks the court to deny relief on the Petition 

because: (1) petitioner failed to fairly present Grounds Two, 

3 - FINDINGS AND RECOMMENDATION 
Three, and Four to the Oregon state courts, leaving them 

procedurally defaulted; and (2) the PCR trial court's denial of 

Grounds One and Five was not objectively reasonable. Al though 

petitioner's supporting memorandum was due on August 10, 2014, he 

has neither filed such a document, nor has he otherwise challenged 

the State's contentions. 

DISCUSSION 

I. Exhaustion and Procedural Default 

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 

4 - FINDINGS AND RECOMMENDATION 
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), 

A review of the record reveals that after his PCR trial, 

petitioner winnowed his claims down to whether trial counsel was 

constitutionally ineffective when he: ( 1) failed to investigate 

whether the State could prove the value of the items involved on 

each Theft in the First Degree count to be $1,000 or above; and 

(2) failed to preserve petitioner's statutory speedy trial rights. 

Respondent's Exhibits 125 & 127. These claims correspond to 

Grounds One and Five of the Amended Petition for Writ of Habeas 

Corpus, respectively. As petitioner abandoned the claims that 

correspond to Grounds Two, Three, and Four of his Petition during 

his state court appeal, and as he can no longer pursue them, they 

5 - FINDINGS AND RECOMMENDATION 
are procedurally defaulted and ineligible for federal habeas 

review. 

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, 529 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 

6 - FINDINGS AND RECOMMENDATION 
unreasonably applies that principle to the facts of the prisoner's 

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

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

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

law must be objectively unreasonable. Id at 409. 

B. Analysis 

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. 

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. 

In proving prejudice, a petitioner who has pled guilty or no 

contest to an offense must demonstrate that there is a reasonable 

7 - FINDINGS AND RECOMMENDATION 
probability that, but for counsel's errors, he would not have 

entered such a plea and would have insisted on going to trial. 

Hill v. Lockhart, 474 U.S. 52, 59 (1985). 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. 

1. Ground One: Value of Stolen Goods 

Petitioner first alleges that trial counsel was ineffective 

when he failed to challenge the value of the items as insufficient 

to meet the $1,000 threshold necessary to establish guilt for Theft 

in the First Degree. The PCR trial court rejected this claim as 

follows: 

There is no proof that the restitution figure 

was wrong. There is no proof Petitioner 

wouldn't have taken the plea if . he had 

additional information. There is no 

that additional investigation would 

turned up anything helpful. 

proof 

have 

Respondent's Exhibit 123, p. 21. 

Petitioner points to nothing in the record that might tend to 

show the restitution figure was wrong, or that he might have 

insisted on proceeding to trial if counsel had advised him more 

fully. Accordingly, the PCR trial court's decision does not 

involve an unreasonable application of clearly established federal 

law. 

Ill 

Ill 

8 - FINDINGS AND RECOMMENDATION 
2. Ground Two: Failure to Preserve Speedy Trial Rights 

Petitioner also claims that counsel's performance fell below 

an objective standard of reasonableness when he failed to preserve 

petitioner's right to a speedy trial under Oregon law. 1 

Petitioner's trial was initially scheduled for October 1, 2010. 

116, p. 1. Trial counsel could not proceed on that date because 

"the evidence gathering ha[d] not yet been completed," counsel was 

not in possession of the "police reports or any discovery regarding 

the multiple new matters alleged in the Amended Information," and 

he had another trial scheduled with another client for October 5, 

2010 that had already been postponed and counsel did not feel he 

could move it again. Respondent's Exhibit 115, p. 3. 

Petitioner nevertheless refused to waive his right to a speedy 

trial. As a result, counsel moved to withdraw on September 17, 

2010. The trial court denied that motion on September 20. Id at 

7. As a result, and while specifically noting petitioner's refusal 

to waive his speedy trial rights, counsel requested a continuance 

on September 27. Respondent's Exhibit 116. The trial court 

granted the continuance and reset the trial date for November 16, 

2010. Id at 4. Four days before that trial was to commence, 

petitioner elected to plead guilty. 

Under Oregon's speedy trial statute, if the State fails 

to bring a custodial defendant to trial within 60 days of his 

arrest and without his consent, the State must release him from 

custody. ORS 136.290. 

9 - FINDINGS AND RECOMMENDATION 
The PCR trial court addressed this claim briefly, noting that 

"[t)he trial court was satisfied that the set over was necessary 

despite Petitioner's objection." Respondent's Exhibit 123, p. 21. 

A review of the record reveals that the set over was necessary, and 

petitioner has not demonstrated how counsel's performance fell 

below an objective standard of reasonableness given the 

circumstances he faced. In addition, even assuming counsel should 

have attempted to more vigorously pursue petitioner's release 

pending trial, such release would not have resulted in the 

dismissal of the charges against him. Johnson v. Premo, 269 Or. 

App. 686, 700, 346 P. 3d 578, 586 (2015). Where petitioner's 

temporary release would not have impacted the outcome of the legal 

proceedings against him, he cannot demonstrate prejudice. For all 

of these reasons, the PCR trial court's denial of petitioner's 

Ground Five claim does not constitute an unreasonable application 

of clearly established federal law. 

RECOMMENDATION 

For the reasons identified above, the Amended Petition for 

Writ of Habeas Corpus (#9) 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) . 

Ill 

10 - FINDINGS AND RECOMMENDATION 
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 

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

Recommendation will go under advisement. 

DATED this I? day of October, 2015. 

United States Magistrate Judge 

11 - FINDINGS AND RECOMMENDATION