UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

JOHN McKNIGHT WADE, 

Petitioner, 

v. 

MARK NOOTH, Superintendent, 

Snake River Correctional 

Institution, 

Respondent. 

Kristina Hellman 

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2: 13-cv-00755-PK 

FINDINGS AND RECOMMENDATION 

Assistant Federal Public Defender 

101 SW Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum 

Attorney General 

Samuel A. Kubernick 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97301 

Attorneys for Respondent 

1 - FINDINGS AND RECOMMENDATION 

Case 2:13-cv-00755-PK Document 41 Filed 02/01/16 Page 1 of 18
PAPAK, Magistrate Judge. 

Petitioner John McKnight Wade brings this habeas corpus action 

pursuant to 28 U.S.C. § 2254 and challenges his convictions and 

sentence for attempted aggravated murder, attempted assault, 

assault, unlawful use of a weapon, burglary and robbery. For the 

reasons set forth below, the Amended Petition for Writ of Habeas 

Corpus [19] should be denied, and Judgment should be entered 

dismissing this action with prejudice. 

PROCEDURAL BACKGROUND 

On February 11, 2003, the Multnomah County Grand Jury returned 

a re-indictment charging Wade with four counts of Attempted 

Aggravated Murder with a Firearm, one count of Attempted Assault in 

the First Degree with a Firearm, one count of Assault in the Second 

Degree with a Firearm, one count of Assault in the Third Degree 

with a Firearm, one count of Unlawful Use of a Weapon with a 

Firearm, two counts of Burglary in the First Degree with a Firearm, 

two counts of Robbery in the First Degree with a Firearm, two 

counts of Robbery in the Second Degree with a Firearm, and one 

count of Felon in Possession of a Firearm. Respondent's Exhibit 

103. A jury found him guilty on all counts, and, through a 

combination of consecutive, concurrent, and merged sentences, the 

sentencing court ultimately imposed a sentence totaling 310 months. 

Respondent's Exhibit 101. 

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Wade directly appealed his convictions and sentence. The 

Oregon Court of Appeals affirmed the trial court without a written 

opinion, and the Oregon Supreme Court denied review. State v. 

Wade, 213 Or. App. 241, 160 P.3d 1039 (2007), rev. denied 343 Or. 

224, 168 P.3d 1155 (2007); Respondent's Exhibits 104-109. 

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

court. The PCR trial court denied relief on his PCR Petition. 

Wade v. Belleque, Marion County circuit Court Case No. 07C-22300. 

On appeal, the Oregon Court of Appeals affirmed without opinion, 

and the Oregon supreme Court denied review. Wade v. Premo, 250 Or. 

App. 145, 281 P.3d 685 (2012), rev. denied 352 Or. 565, 291 P.3d 

737 (2012); Respondent's Exhibits 142-146. 

On May 3, 2013, Wade filed this action. His claims for relief 

as set forth in his Amended Petition [19] are as follows: 

Ground One. 

Ground Two. 

The state trial court violated the petitioner's 

right to confrontation as guaranteed by the Sixth 

Amendment to the United States Constitution by 

admitting the co-defendant's statements made to 

detectives, even though petitioner did not have an 

opportunity to cross examine the co-defendant about 

those statements. 

Mr. Wade was denied effective assistance of counsel 

in violation of his Sixth and Fourteenth Amendment 

rights because his attorney failed to: 

1. Present expert opinion testimony from a 

criminalist from which the jury could 

reasonably infer that petitioner had not fired 

a gun a Korick Sleeper; 

2. Object to particular 

Christensen on the 

irrelevant under OEC 

testimony of 

basis that 

401 and 403; 

Anthony 

it was 

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3. Object under OEC 401 and 403, then move to 

strike testimony of prosecution witness Micah 

Griggs, that he believed petitioner intended 

to commit a robbery when he heard that 

petitioner intended to "commit" or "hit a 

lick11 i 

4. Move to sever petitioner's trial from that of 

co-defendant Handy; 

5. Object to the introduction of out-of-court 

statements purportedly made by co-defendant 

Handy on the grounds that they were hearsay 

and that their introduction violated 

petitioner's confrontation rights; 

6. Object to the introduction of co-defendant 

Handy's out-of-court testimonial statements to 

Detective Andrews in violation of petitioner's 

confrontation rights. 

Respondent asks the Court to deny relief on the Amended 

Pe ti ti on because: (1) Wade does not provide argument for the 

claims set forth at Ground Two, Subparts 2 through 6, and, 

therefore, he has not sustained his burden of proof on these 

claims; (2) to the extent the Oregon Court of Appeals reached the 

merits of Wade's Ground One claim, it was denied in a state court 

decision entitled to deference--otherwise the claim is defaulted 

and the default is not excused; and (3) Ground Two, Subpart 1 was 

denied in a state court decision entitled to deference. 

DISCUSSION 

I. Unargued Claims 

With the exception of Ground One and Ground Two, Subpart 1, 

Wade does not provide argument to support the merits of his 

remaining claims. Instead he "submits the remainder of his claims 

4 - FINDINGS AND RECOMMENDATION 

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for this Court's consideration on the existing record." Brief in 

Support [38], p. 8. 

On federal habeas review, Wade must show that the state court 

determination denying his claims was contrary to or involved an 

unreasonable application of federal law as established by Supreme 

Court precedent. 28 u.s.c. § 2254 (d). The Court has reviewed 

Wade's unargued claims on the existing record and determined that 

they do not entitle him to relief. Accordingly, by not advancing 

these claims in his supporting memorandum, Wade has failed to meet 

the burden of proof for habeas relief under§ 2254(d) and relief on 

these claims must be denied. 

II. Merits 

A. Standards 

An application for 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 1 s findings of fact are presumed correct and Wade 

bears the burden of rebutting the presumption of correctness by 

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

5 - FINDINGS AND RECOMMENDATION 

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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 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 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. 

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 of reasonableness. 

Strickland v. Washington, 466 U.S. 668, 686-687 (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. 

6 - FINDINGS AND RECOMMENDATION 

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Second, the petitioner must show that his lawyer's performance 

prejudiced the defense. The appropriate test for prejudice is 

whether the defendant 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. 

Under the Anti-Terrorism and Effective Death Penalty Act of 

1996's ("AEDPA") deferential standard of review, the key question 

in analyzing an ineffective assistance of counsel claim brought by 

a state prisoner is whether the state court's application of 

Strickland was unreasonable. Harrington v. Richter, 131 S. Ct. 770, 

785 (2011) . "This is different from asking whether defense 

counsel's performance fell below Strickland's standard A state 

court must be granted a deference and latitude that are not in 

operation when the case involves review under the Strickland 

standard itself. 11 Id. AEDPA requires a "doubly deferential" 

review of a state prisoner's ineffective assistance of counsel 

claim. Cullen v. Pinholster, 131 S.Ct. 1388, 1410-11 

(2011) (citation omitted) . The federal habeas court must show 

deference both to the state court which previously reviewed the 

claim, and also to trial counsel him or herself. 

Ill 

Ill 

7 - FINDINGS AND RECOMMENDATION 

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B. Analysis 

1. Trial Court Violated Wade• s Right to Confrontation as 

Guaranteed by the Sixth Amendment when it Admitted CoDefendant 1 s Statements made to Detectives, even though 

Wade did not have an Opportunity to Cross Examine CoDefendant about those Statements (Ground One) 

Wade contends his co-defendant's statements were testimonial, 

and, therefore, their admission at his trial through a detective 

violated Wade's confrontation rights under the Sixth Amendment. 

He further argues the violation was not harmless because codefendant's statements were important to the prosecution's case in 

that they: (1) supported the prosecution's theory of the case; 

(2) corroborated important portions of two witnesses' (the 

victims') version of events--witnesses whose credibility was 

otherwise suspect; and (3) directly countered Wade's version of 

events. Accordingly, Wade argues admission of co-defendant's 

statements through the detective had a substantial and injurious 

effect on the jury's verdict and the Oregon Court of Appeals' 

denial of this claim was contrary to and an unreasonable 

application of both Crawford v. Washington, 541 U.S. 36 (2004) and 

Brecht v. Abrahamson, 507 U.S. 619 (1993). 

Recognizing that in light of Smith v. Oregon Bd. of Parole and 

Post-Prison Supervision, 736 F.3d 857 (9th Cir. 2013) the Oregon 

Court of Appeals' decision here could be considered a denial on the 

merits, respondent argues that even assuming that court denied the 

claim on the basis any Sixth Amendment violation was harmless, such 

8 - FINDINGS AND RECOMMENDATION 

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finding was not objectively unreasonable and is entitled to 

deference by this Court. 

Specifically, respondent maintains the following relevant 

factors support the conclusion that any Confrontation Clause 

violation was harmless. First, with regard to importance of the 

testimony, the State argues: (1) the testimony at issue was a 

small part of the detective's testimony, taking up less than one 

page of transcript in a multi-day trial; (2) the jury heard about 

the co-defendant's involvement in the crime and it was evident the 

statement attributed to him contained self-serving assertions; and 

(3) the prosecution did not emphasize the statement in either its 

closing or rebuttal closing. In addition, the State argues the 

statements were merely cumulative of other properly admitted 

evidence, including testimony from other witnesses as to Wade's 

role in the crimes and the fact that he possessed and shot the gun. 

Similarly, the State argues the co-defendant's statements were 

corroborated by that same testimony. Finally, with regard to the 

overall strength of the prosecution's case, respondent points to: 

(1) the testimony of other witnesses who testified in detail about 

Wade's role in the crimes and the facts that he possessed and shot 

the gun; (2) the testimony of other witnesses who confirmed Wade 

possessed a gun matching the description of the one used in the 

crime; and (3) the fact Wade's explanation that the gun accidently 

discharged was not credible. 

9 - FINDINGS AND RECOMMENDATION 

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Assuming as the State does that the Oregon Court of Appeals 

found constitutional error based on a Confrontation Clause 

violation but deemed it harmless, this Court reviews that 

determination under Brecht v. Abrahamson, 507 U.S. 619 (1993). 

The right to confront witnesses, guaranteed by the Sixth and 

Fourteenth Amendments, includes the right to cross-examine adverse 

witnesses to attack their general credibility or show possible bias 

or self interest. 

Delaware v. Van 

Olden v. Kentucky, 488 U.S. 227, 231 (1988); 

Arsdall, 475 U.S. 673, 678-79 (1986). 

A Confrontation Clause violation occurs where the defendant is 

prevented from investigating "a prototypical form of bias" and "[a] 

reasonable jury might have received a significantly different 

impression of [the witness's] credibility had [defendant's) counsel 

been permitted to pursue his proposed line of cross-examination." 

Van Arsdall, 475 U.S. at 680. 

Even where constitutional error is found, however, "in § 2254 

proceedings a court must [also] assess the prejudicial impact of 

constitutional error" under the Brecht standard. Fry v. Pliler, 

551 U.S. 112, 121-22 (2007) (citing Brecht, 507 U.S. 619). This 

Court is instructed to "apply the Brecht test without regard for 

the state court's harmlessness determination." Ayala v. Wong, 

F.3d 2014 WL 707162, *13 

Chrones, 629 F.3d 1007, 1012 

(9th Cir. 2014) (citing Pulido v. 

(9th Cir. 2010)). Thus, a federal 

habeas court assesses harmlessness under the Brecht standard and 

10 - FINDINGS AND RECOMMENDATION 

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"need not conduct an analysis under AEDPA of whether the state 

court's harmlessness determination on direct review was 

contrary to or an unreasonable application of clearly established 

federal law." See Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 

2011), cert. denied, 133 S.Ct. 102 (2012). Accordingly, habeas 

relief is not warranted unless the constitutional error had a 

"substantial and injurious effect or influence in determining the 

jury's verdict." 

F.3d at 455. 

Brecht, 507 U.S. 623; see also Merolillo, 663 

To guide an analysis of "substantial and injurious effect," 

the Court applies the five non-exclusive factors set out in Van 

Arsdall. Ultimately, the question is whether "assuming that the 

damaging potential of the cross-examination were fully realized, a 

reviewing court might nonetheless say that the error was harmless 

beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684. 

Relevant factors include: "the importance of the witness' 

testimony in the prosecution's case, whether the testimony was 

cumulative, the presence or absence of evidence corroborating or 

contradicting the testimony of the witness on material points, the 

extent cross examination was otherwise permitted, and, of course, 

the overall strength of the prosecution's case." Id. 

Having carefully reviewed relevant portions of the transcript, 

the Court finds as a preliminary matter that the prosecution 

introduced co-defendant's statements primarily to support its case 

11 - FINDINGS AND RECOMMENDATION 

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against co-defendant, not Wade. To the extent co-defendant's 

statements favored the prosecution's case against Wade, the facts 

revealed in co-defendant's assertions were well established from 

other witness testimony. For example, while co-defendant's 

statements placed Wade at the scene with a gun, other witnesses, 

able to describe Wade's very distinctive appearance, identified him 

as having been at the scene with a gun. Moreover, with regard to 

the Van Arsdall factors, respondent's arguments are well taken. 

The Court concludes: co-defendant's statements were not a 

significantly important part of its case against Wade; they were 

cumulative; to the extent they were contradicted by other 

testimony, it is apparent co-defendant was giving a self-serving 

account of events such as denying knowing that Wade had a gun when 

they entered the apartment and denying that co-defendant took any 

property1 ; to the extent they were corroborated by the victims' 

testimony, Wade's counsel had ample opportunity to challenge the 

credibility of the victims' statements and did; and the 

prosecution's overall case against Wade was strong. 

Therefore, based on the foregoing, the Court concludes that 

any violation of Wade's Confrontation Clause rights did not have a 

substantial and injurious effect or influence on the jury's verdict 

1 Moreover, co-defendant's statements contained facts helpful 

to Wade, including co-defendant's assertion that he only heard one 

gun shot. 

12 - FINDINGS AND RECOMMENDATION 

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and any error was harmless beyond a reasonable doubt. Accordingly, 

Wade is not entitled to relief on this claim. 

2. Wade's Sixth Amendment Right to Effective Assistance of 

Counsel was Violated when Trial Counsel Failed to Utilize 

a Criminalist at Trial (Ground Two, Subpart 1) 

According to Wade, there was no physical evidence supporting 

the attempted aggravated murder charge pertaining to Korick Sleeper 

and the prosecution's case on this count relied solely on Ms. 

Sleeper's testimony that Wade fired his gun at her and she felt the 

bullet fly past her and Charles Carrera's testimony that he had 

heard two shots- -the second one after Wade left the apartment. 

Wade maintains that his counsel could have hired a criminalist to 

give expert testify at trial that had Wade shot at Ms. Sleeper as 

she described, investigators would have recovered physical evidence 

of the shot. Wade insists that with such testimony the outcome of 

his trial as to this attempted aggravated murder charge would have 

been different. Wade also asserts that he asked his attorney to 

retain an expert to testify about the alleged second shot at Ms. 

Sleeper, but counsel declined to do so. 

In denying Wade's claim, the PCR trial court made the 

following pertinent findings of fact: 

1. One issue concerns the Affidavit of Bart Reid and 

his proposed testimony if he had been called as a 

witness by Petitioner's counsel. After reviewing 

the testimony of all the witnesses, the Court finds 

the Petitioner has failed to prove by a 

preponderance of the evidence that the proposed 

testimony of Bart Reid would have assisted 

Petitioner's trial evidence in any significant 

13 - FINDINGS AND RECOMMENDATION 

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manner or would have impacted or changed the 

verdict at trial. 

2. Trial counsel made a deliberate, strategic decision 

in consultation with petitioner to not use a 

criminalist expert. Petitioner agreed on trial 

counsel's strategy. That tactical decision was 

reasonable under the facts and circumstances, and 

did not rise to the level of ineffective assistance 

of counsel. The victim could not testify to the 

exact angle at which the shot was fired, and the 

jury knew that the detectives did not locate the 

fired bullet or any fragments. 

Respondent's Exhibit 140, p. 4. 

During his PCR trial, Wade's counsel argued that based on 

evidence introduced at trial concerning the positions of Wade and 

Ms. Sleeper and the angles of the shot, the trajectory of the 

bullet had been established. Based on this trajectory, an expert 

could have testified that had the second shot been fired there 

would have been physical evidence of it. In support of this 

argument, Wade introduced an affidavit by Forensic Scientist Bart 

E. Reid wherein Reid averred that had a bullet been fired at Ms. 

Sleeper "in a manner consistent with her testimony and descriptions 

of that event to investigating officers, it is very likely that 

such bullet would have struck the ground in the [gravel] parking 

lot directly behind her." Moreover, Reid stated had the bullet 

struck the parking lot, it would have left a "distinctive furrow" 

in the gravel and that in his opinion the lack of any evidence of 

gunshot under these circumstances leads him to conclude a bullet 

was not fired at Ms. Sleeper as described in her testimony. 

Respondent's Exhibit 121, p. 5. 

14 - FINDINGS AND RECOMMENDATION 

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In response, however, the State argued: (1) an expert witness 

by the defense at trial would not have been able to rebut the 

testimony of the two officers who testified about their 

expectations about being able to recover evidence of the second 

shot and that they performed a search, but were unable to find 

anything; (2) "it was clear that the victim could not give an exact 

angle that Mr. Wade was holding the firearm when he fired the shot 

at her"; (3) the officers testified that the angles were not exact 

enough to involve the Oregon State Police or to justify use of 

their advanced technologies and specialists to locate evidence of 

the shot; (4) at least two witnesses heard the second shot; and 

(5) the jury knew that no evidence of a second bullet was ever 

recovered, but that law enforcement testified that they would not 

expect it to be recovered. Respondent's Exhibit 138, pp. 19-20. 

In addition to the parties' briefs and arguments as summarized 

above and the Reid affidavit, the PCR court had before it an 

affidavit from Wade's trial counsel wherein counsel specifically 

addressed his reasons for not hiring a criminalist: 

2. I did not retain a criminalist in this matter 

because I did not believe strategically or 

tactically that an "expert criminalist" could be of 

much benefit or help to our case; I discussed this 

issue specifically with Mr. Wade who agreed an 

expert was not likely to assist the defense in any 

meaningful way. Mr. Wade and I had multiple 

conversations about our trial strategies and he was 

always involved in the process of my thinking and 

trial preparation. 

At the time of trial, the evidence presented and 

witness testimony indicated the fired bullet likely 

15 - FINDINGS AND RECOMMENDATION 

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hit a gravel area, shattered, and then ricocheted 

away into an unknown direction. My past 

experience, and common sense, indicated that I 

would not be able to find a respected, persuasive 

criminalist to testify a bullet definitely should 

have been recovered under those circumstances. In 

fact, trying to locate such a bullet would have 

been very difficult and our own "expert" could have 

been used against our ultimate defense. 

Strategically, I believed it was smarter and better 

to "argue" the issue as a failure of the state to 

produce the evidence. 

Without absolute, unequivocal testimony as to the 

origin, direction, and distance of flight, the 

criminalist's testimony would have provided little 

strength or support to our defense. The jury knew 

from the testimony no bullet was recovered, and the 

bullet trajectory was not clear enough for the 

Oregon State Police Crime Lab to even assist 

finding the bullet. 

Moreover, the evidence was clear as to the 

identification of the alleged shooter, the general 

position of his body as to the involved doorway, 

porch and potential victim. This was not a 

situation where I was arguing the identity of the 

shooter was unknown and therefore someone else, in 

another physical location, could and did fire the 

shot. 

In this case, the issue would have had to be to 

argue the exact direction of the bullet, if that 

could in fact be determined, somehow showed Mr. 

Wade fired the gun not directly at the potential 

victim but mere inches from her as if to scare her; 

the evidence was unequivocal from the potential 

witness that the bullet came extremely close to her 

and that she could feel the bullet pass her; in 

these circumstances I did not believe a criminalist 

could and would substantially assist our defense. 

Respondent's Exhibit 137, p. 2. 

In examining counsel's performance, "strategic choices made 

after thorough investigation of law and facts relevant to plausible 

options are virtually unchallengeable." Strickland, 466 U.S. at 

16 - FINDINGS AND RECOMMENDATION 

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690. Here, the record supports a conclusion that counsel's 

strategic decision not to call a criminalist at trial and to 

instead argue the issue as a failure of the State to produce 

evidence (a strategy made with Wade's consent), was within the 

bounds of reasonable professional assistance. Moreover, Wade 

cannot demonstrate that the PCR court's determination, that even 

had counsel hired an expert willing to testify in the vein of 

Reid's affidavit it would not have impacted or changed the verdict 

at trial, i.e., that any failure on counsel's part to hire a 

criminalist did not prejudice Wade's defense, was contrary to or 

involved an objectively unreasonable application of Strickland. 

Based on the foregoing, the Court concludes that Wade has 

failed to meet his heavy burden under AEDPA of demonstrating that 

the PCR court's denial of this claim, based on its conclusions that 

trial counsel rendered constitutionally adequate assistance and 

that Wade was not prejudiced by any failure of counsel to hire a 

criminalist, was contrary to or involved an unreasonable 

application of Strickland v. Washington. 

RECOMMENDATION 

Based on the foregoing, the Amended Pe ti ti on for Writ of 

Habeas Corpus [19] should be DENIED, and judgment should enter 

DISMISSING this case with prejudice. 

In addition, the district judge should certify that Wade has 

not made a substantial showing of the denial of a constitutional 

17 - FINDINGS AND RECOMMENDATION 

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right pursuant to 28 u.s.c. § 2253(c)(2). 

appropriate for appellate review. 

SCHEDULING ORDER 

This case is not 

The Findings and Recommendations will be referred to a 

district judge. Objections, if any, are due fourteen (14) days 

from service of the Findings and Recommendation. 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 fourteen (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. 

NOTICE 

A party's failure to timely file objections to any of these 

findings will be considered a waiver of that party's right to 

de nova consideration of the factual issues addressed herein and 

will constitute a waiver of the party's right to review of the 

findings of fact in any order or judgment entered by a district 

judge. These Findings and Recommendation are not immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4 (a) (1) of the Federal Rules of 

Appellate Procedure should not be filed until entry of judgment. 

DATED this 1st day 

Magistrate Judge 

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