IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL W. BROWN 

Petitioner, 

v. 

JEFF PREMO 

Respondent. 

KRISTINA HELLMAN 

Assistant Federal Public Defender 

101 S.W. Main St., Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

ELLEN ROSENBLUM 

Attorney General 

ANDREW M. HALLMAN 

NICK M KALLSTROM 

Assistant Attorneys General 

Department of Justice 

1162 Court Street N.E. 

Salem, Oregon 97301-4096 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case No. 6:14-cv-00980-MA 

OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 1 of 19
MARSH, Judge 

Petitioner, an inmate at the Oregon State Penitentiary, brings 

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

reasons set forth below, petitioner's habeas petition is DENIED. 

FACTS AND PROCEDURAL HISTORY 

Petitioner pleaded guilty to sexually abusing his twelve-yearold stepdaughter. Resp. Ex. 105 at 4. In May 2009, the victim's 

grandmother filed a complaint with the police after discovering a 

sexually explicit online chat conversation between the victim and 

petitioner. Resp. Ex. 112 at 2-3. The victim's grandmother 

previously had observed the victim sitting on petitioner's lap on 

several occasions. Resp. Ex. 105 at 5. 

In the chat conversation, petitioner appears to ask the victim 

to send him nude pictures of herself and to engage her in cyber 

sex. Resp. Exs. 112 at 3 & 133. When the police questioned 

petitioner about the chat conversations, he admitted to having 

several other conversations of a similar nature with the victim. 

Id. at 10. Separately, the victim admitted to having a sexual 

relationship with petitioner when questioned by the police. Id. at 

14. 

In connection with their investigation, the police questioned 

two women at Harvest House, a temporary housing shelter where 

petitioner and the victim's mother lived for a period of time. The 

manager of Harvest House, Laura Dittman and another woman had 

2 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 2 of 19
witnessed the victim straddling petitioner in a sexualized manner. 

Resp. Ex. 105 at 5-6; Resp. Ex. 144. 

Following a grand jury indictment, petitioner pleaded guilty 

to charges of Sexual Abuse in the First Degree (four counts), Rape 

in the Second Degree (three counts), and Sodomy in the Second 

Degree (one count). Resp. Exs. 102, 104 & 105. The trial court 

sentenced petitioner to a 90-month sentence. Resp. Ex. 105 at 14. 

After forgoing a direct appeal, petitioner filed a petition 

for post-conviction relief, which the post-conviction relief (PCR) 

court denied. Resp. Exs. 107 & 151 at 24. The Oregon Court of 

Appeals affirmed without opinion, and the Oregon Supreme Court 

denied review. Brown v. Premo, 306 P.3d 798 (Or. Ct. App. 2013), 

rev. denied, 315 P.3d 420 (Or.). 

DISCUSSION 

I. Procedural Default (Grounds One and Four) 

A state prisoner must exhaust all available state law 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) (1). A federal claim is procedurally defaulted if the 

petitioner does not fairly present his federal claims to the 

appropriate state courts at all appellate stages afforded under 

state law, and state procedural rules would now bar consideration 

of the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 

(1999); Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). Habeas 

3 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 3 of 19
review of procedurally defaulted claims is precluded absent a 

showing of cause and prejudice, or that failure to consider the 

federal claims will result in a fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

A. Ground One 

In petitioner's amended petition, petitioner alleges that 

trial counsel was ineffective for failing to "properly litigate 

pretrial motions regarding use of evidence at trial" of victim's 

past false rape accusations under Oregon evidentiary Rule 608, the 

Oregon Cons ti tut ion, and the Federal Constitution. U.S. CONST. 

amend. VI; OR. CONST. art. I, § 11; OR. R. Evrn. 608 ("Rule 608"); See 

Pet.'s Amended Petition (ECF No. 27), p. 3. Respondent argues that 

this claim is procedurally defaulted because it was not fairly 

presented to the Oregon state courts and cannot now be raised to 

Oregon's highest court. Respondent is correct.' 

A careful review of the record demonstrates that petitioner 

did not argue that trial counsel was ineffective for failing to 

seek admission of the evidence of victim's past false rape 

accusations under OEC 608, the Oregon Constitution or the Federal 

Constitution. See Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 

2013) (noting it is well-settled that discrete claims of 

ineffective assistance of counsel must be exhausted separately); 

see also Poyson v. Ryan, 743 F.3d 1185, 1202 (9th Cir. 2013); 

Petitioner does not challenge respondent's argument. 

4 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 4 of 19
Moorman v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005); see Resp. 

Exs. 106, 154 & 156. 

When seeking post-conviction relief, petitioner presented this 

claim to the state court under Oregon evidentiary Rule 412 only. 

Resp. Exs. 106 & 107. Moreover, on appeal from the denial of postconviction relief, petitioner again presented this claim to the 

Oregon Court of Appeals and the Oregon Supreme Court on state law 

grounds only. Thus, Ground One is not fairly presented because 

petitioner has not provided the state courts with an opportunity to 

consider and resolve his current federal claim. Coleman,501 U.S. at 

732. Because the time for presenting this claim has passed, Ground 

One is procedurally defaulted. See OR. REV. STAT. § 138.550(3); OR. 

REV. STAT. § 138, 650, 

B . Ground Four 

Petitioner alleges in Ground Four that his conviction violates 

the Fourteenth and Eighth Amendments because he is "actually 

innocent." Petitioner fails to sustain his burden on this claim. 

Petitioner did not address ground four in his supporting brief. See 

Pet.'s Brief in Support (ECF No. 31). In an application for habeas 

relief, petitioner carries the burden of proof. Cullen v. 

Pinholster, 131 S.Ct. 1388, 1398 (2011). The court has reviewed 

petitioner's claim of actual innocence and is satisfied that he is 

not entitled to relief on Ground Four, Accordingly, because 

petitioner has failed to sustain his burden of proving habeas 

5 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 5 of 19
relief is warranted on Ground Four, habeas relief is denied on this 

claim. Id.; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). 

II. Relief on the Merits 

In his remaining exhausted claims, petitioner argues that 

trial counsel rendered deficient performance because he did not 

argue a motion for admitting evidence of the victim's past sexual 

history and adequately investigate evidence from Harvest House, 

resulting in prejudice to petitioner by his entering an involuntary 

guilty plea. Respondent moves the court to deny habeas relief on 

the basis that the PCR court's rejection of petitioner's claim is 

neither contrary to, nor an unreasonable application of Strickland. 

Respondent is correct. 

A. Standards 

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 evidence presented." 28 U.S. C. § 2254 (d) ( 1) & 

(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). Petitioner 

bears the burden of proof. Cullen, 131 S.Ct. at 1398. 

A claim of ineffective assistance of counsel requires the 

petitioner to prove that counsel's performance was deficient and 

6 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 6 of 19
that there is a reasonable probability that, but for counsel's 

errors, the result of the proceeding would have been different. 

Bell v. Cone, 535 U.S. 685, 695 (2002); Williams v. Taylor, 529 

U.S. 362, 390-91 (2000); Strickland, 466 U.S. 668, 687, 694 (1984). 

Counsel is "strongly presumed to have rendered adequate assistance 

and made all significant decisions in the exercise of reasonable 

professional judgment." Cullen, 131 S.Ct. at 1403. When reviewing 

a state prisoner's habeas claim of ineffective assistance, federal 

courts must apply a doubly deferential standard of review taking 

into account the strong presumption of competence under Strickland, 

and the deferential standard of review under 28 U.S.C. § 2254 (d). 

Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen, 131 S.Ct. at 1403. 

Strickland applies to ineffective assistance claims arising 

out of the plea process. Hill v. Lockhart, 474 U.S. 52, 58 (1985). 

To show deficient performance, a petitioner must establish that his 

counsel's representation was outside the wide range of 

professionally competent assistance. Strickland, 466 U.S. at 690. 

In order to establish prejudice in the guilty plea context, 

petitioner must show a reasonable probability that, but for 

counsel's errors, he would not have pleaded guilty and would have 

insisted on going to trial. Hibbler v. Benedetti, 693 F.3d 1140, 

1150 (9th Cir. 2012); Doe v. Woodford, 508 F.3d 563, 568 (9th Cir. 

2007); Hill, 474 U.S. at 59. 

7 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 7 of 19
Because "plea bargains are the result of complex negotiations 

suffused with uncertainty, and defense attorneys must make careful 

strategic choices in balancing opportunities and risks," and strict 

adherence to the deferential Strickland standard is "all the more 

essential when reviewing the choices an attorney made at the plea 

bargain stage." Premo v. Moore, 562 U.S. 115, 124-125 (2011). 

B. Relevant Facts 

On April 5, 2010, trial counsel Eric Hansen filed a Motion and 

Order to Admit Evidence Under OEC 412. Resp. Ex. 135. Counsel's 

motion included a written offer of proof detailing the evidence of 

victim's past sexual behavior, including past accusations of rape 

and victim's sexually explicit online chat conversations with other 

individuals. Resp. Ex. 136. The State filed a response brief on 

June 9, 2010. Resp. Ex. 138. At the time scheduled for the motion, 

the trial judge met with counsel and the prosecutor in his chambers 

to discuss the merits of the motion. Resp. Ex. 143 at 3, 'IT 7. 

Counsel advised petitioner that the trial judge strongly indicated 

in the chambers meeting, that he would not grant petitioner's OEC 

412 motion. Id. Upon counsel's advice, petitioner decided to enter 

a guilty plea. Resp. Ex. 104. 

Petitioner pleaded guilty pursuant to a plea petition which 

provided: 

I wish to plead GUILTY to the charge(s) set forth below. 

I told my attorney all the facts and circumstances known 

to me about the charge(s) against me and I believe that 

my attorney is fully informed on all such matters. My 

8 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 8 of 19
attorney has answered, to my satisfaction, all questions 

I have concerning my case and this petition. My attorney 

has counseled and advised me on the nature of each 

charge; on any and all lesser included charges; and on 

all possible defenses that I might have in this case. 

* * * * * 

I believe that my attorney did all that anyone could do 

to counsel and assist me. I AM SATISFIED WITH THE ADVICE 

AND HELP HE OR SHE HAS GIVEN ME. 

* * * * * 

I OFFER MY PLEA(S) VOLUNTARILY AND WITH FULL KNOWLEDGE 

AND UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE 

INDICTMENT AND IN THIS AFFIDAVIT AND IN THE ATTACHED 

CERTIFICATE OF MY ATTORNEY. 

Resp. Ex. 103 at pp. 1-2, ~~ 3, 4, 17 & 20. 

At the June 14, 2010 plea hearing, the trial court engaged in 

a colloquy with petitioner to ensure he understood the terms of the 

plea agreement. Resp. Ex. 104 at 1-3. Specifically, the trial court 

discussed with petitioner his rights and the State's proposed 

sentence of 90 months. Id. at 3. The trial court also confirmed 

that petitioner understood that he could still plead not guilty and 

exercise his constitutional right to a jury trial. Id. Petitioner 

pleaded guilty to all counts, and the trial court accepted his 

guilty plea as knowing and voluntary. Id. at 4-5. 

On July 5, 2010, prior to his sentencing hearing, petitioner 

sent a message to the trial court requesting to withdraw his guilty 

plea because he felt he entered his plea under duress. Resp. Ex. 

137. At the July 12, 2010 sentencing hearing, the trial court 

confirmed that petitioner was not threatened from the State to 

9 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 9 of 19
enter a guilty plea. Resp. Ex. 105 at 2. The trial court engaged in 

another colloquy with petitioner to ensure he understood all of his 

rights. Id. at 2-3. Petitioner reaffirmed his guilty plea as 

knowing and voluntary. Id. at 2. 

However, in an affidavit to the PCR court, petitioner attested 

that his plea was involuntary because counsel was ineffective: 

I am more confident of my case after knowing that in 

light of everything in Petitioner's Exhibits 1 through 38 

that my attorney did not properly include everything in 

the Rule 412 Amended Offer of Proof. The Offer of Proof 

is insufficient and had this been better prepared, I 

should not have entered Guilty Pleas and continued 

through the 412 Hearing, which we never had. 

* * * * * 

My attorney should have had the 412 Hearing and I truly 

believe the Motion would have been granted and my trial 

would have been fair. 

Resp. Ex. 150 at 2, 6-8. 

In an affidavit to the PCR court, trial counsel provided an 

entirely different view of his representation: 

Petitioner alleges that I failed to obtain records from 

Harvest House/YCAP showing dates and times that 

petitioner lived there and showing, supposedly, that such 

dates and times are inconsistent with the dates and times 

of the indictment. I do not recall petitioner stating 

that the dates and times he lived at Harvest House were 

different from the date range alleged in the indictment. 

* * * * * 

Petitioner complains that I did not have my investigator 

talk to a Harvest House employee. As stated above, every 

person that petitioner wanted us to interview I sent an 

investigator to talk to. I cannot remember if every 

person agreed to talk to my investigator. I can say with 

absolute certainty that those whom the investigator did 

10 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 10 of 19
speak with were not helpful and would not have been able 

to provide testimony that would have assisted 

petitioner's defense had he chosen to go to trial. I 

reported this to petitioner. 

* * * * * 

Pe ti ti oner alleges that I failed to argue an OEC 412 

motion. This is wrong. I drafted the motion and sent it 

to the trial court and opposing counsel. When I appeared 

in court to argue the motion, the judge asked counsel to 

meet in his chambers. We discussed the motion and its 

merits. After the meeting, the judge told me that he did 

not think the proposed evidence - came within any of the 

OEC 412 grounds for allowing such evidence to be 

introduced at trial. The judge made clear to me that none 

of the evidence would be allowed if petitioner chose to 

go to trial. Petitioner and I discussed the plea offer 

following the judge's remarks and I made clear to 

petitioner that if I argued the OEC 412 motion, it 

certainly would be denied, based on what the judge said 

to me. 

Resp. Ex. 143, pp. 3-4 at~~ 2, 5, 7. 

In support of his affidavit, counsel submitted numerous 

letters he sent to petitioner and others during the duration of his 

representation of petitioner. Resp. Ex. 144. Among the 

correspondence, counsel confirmed in a letter to petitioner on 

August 7, 2009 that he was investigating Harvest House. Id. In a 

February 18, 2010 letter to the prosecutor, with a copy to 

petitioner, counsel informed the prosecutor that he asked the 

investigator to interview Harvest House personnel. Id. In a March 

10, 2010 letter to the trial judge, counsel requested the court's 

assistance in procuring a copy of "notes taken by the Harvest House 

by Harvest House employees," including the log book from Harvest 

House, "wherein alleged documentation of contact between 

11 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 11 of 19
[petitioner] and [victim] was recorded.u Id. To be sure, counsel 

sent many letters to petitioner updating him on the status and 

progress of his case. 

At the PCR proceeding, the PCR court rejected petitioner's 

claims, found trial counsel credible, and concluded that petitioner 

knowingly and voluntarily entered his guilty plea: 

I don't find that there's anything about this case that 

suggests Trial Counsel performed in an inadequate way. 

* * * * * 

[The] 412 motion, in my estimation, [was] obviously 

doomed, because Judge Stone told [counsel] it was. And 

it's apparent here that the attorney, Mr. Hansen, 

appropriately advised Mr. Brown about his options. 

Mr. Brown here 

span of about a 

which I agree 

circumstances. 

* * * * * 

actually pled guilty twice, in the 

month. So he took the deal to begin with, 

is a pretty good deal under the 

[Petitioner] had an opportunity to discuss with Mr. 

Hansen, experienced counsel, that he was running an 

awfully big risk that he didn't necessarily take to hope 

that a jury might believe him, and not believe her, and 

especially where there may have been some testimony he 

would have had to agree to that would have suggested 

opportunity that he then would have had a hard time 

explaining. 

So I don't find there was any inadequate performance of 

counsel. I think the Court made it very clear to Mr. 

Brown the consequences of this plea. 

* * * * * 

And I certainly don't find any showing from the 412 

motion that the kind of testimony that would [sic] was 

12 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 12 of 19
suggested would have actually been received in trial, had 

it gone forward. 

Resp. Ex. 151 at 22-24. The PCR court also issued similar written 

findings and held that "with regard to any issues not specifically 

addressed above, the Court relies upon and adopts the facts and law 

in Defendant's Trial Memorandum as the Court's findings of facts 

and conclusions of law." Resp. Ex. 152 at 3. Specifically, State's 

trial memorandum concluded that counsel was credible. Resp. Ex. 141 

at 10-11. 

C. Analysis 

1. Failure to Argue OEC 412 Motion (Ground Two) 

To establish that trial counsel was ineffective for failing to 

file a motion, petitioner must first demonstrate that the failure 

to file a particular motion was outside the standard of attorney 

competence. Strickland, 466 U.S. at 690; Hill, 474 U.S. at 58. In 

order to show prejudice, petitioner must show that "had counsel so 

moved, there is reasonable probability that the motion would have 

been granted." Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 

2008) (per curiam). Petitioner's argument fails for multiple 

reasons. 

First, petitioner has failed to demonstrate that the PCR 

court's findings that counsel knew that the trial court would not 

allow evidence of the victim's past sexual behavior and 

appropriately advised petitioner of the trial court's intent were 

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unreasonable in light of the evidence presented. 28 U.S. C. § 2254 ( d) (2) . 

Second, given the PCR court's factual findings, petitioner has 

not established that counsel's decision to cancel the motion 

hearing and advise petitioner to enter a guilty plea fell below an 

objective standard of reasonableness. Indeed, the trial court, 

counsel and the State discussed the merits of the motion in 

chambers after counsel filed his motion and provided an Of fer of 

Proof. Resp. Exs. 135, 136 & 143 at 3. As the PCR court noted, the 

trial court clearly indicated to counsel that the 412 motion was 

"doomed." Resp. Exs. 143 at 3 & 151 at 22. In light of the evidence 

presented and under the "doubly deferential" standard of review of 

ineffective assistance of counsel claims, the PCR court's 

conclusion that counsel was not deficient is not unreasonable. See 

Cullen, 131 S. Ct. at 1403 (the strong presumption of competence 

under Strickland and the deferential standard of review under 28 

u.s.c. § 2254(d)); 28 u.s.c. § 2254(d) (1). 

Third, petitioner cannot establish prejudice because: 1) he 

has not shown the 412 motion would have succeeded, and 2) he has 

not demonstrated that he would not have pleaded guilty and would 

have insisted on going to trial. Although petitioner asserts that 

a hearing would have allowed the trial court to hear from witnesses 

and examine documents, he has failed to specify what evidence would 

have been presented at the hearing that would have persuaded the 

trial court to grant the motion. Hence, petitioner has not shown 

14 - OPINION AND ORDER 

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that the PCR court's conclusion that the offered testimony would 

not have met the requirements of Rule 412 is unreasonable. Styers, 

547 F.3d at 1030. 

Additionally, in light of the strength of the State's case 

against him, petitioner has failed to show that he would not have 

pleaded guilty. As the PCR court indicated, petitioner would have 

a difficult time explaining the State's evidence in the case. Resp. 

Ex. 151 at 23. In addition to the victim's testimony that she and 

petitioner had sexual intercourse several times, the State also had 

the sexual online chat conversation between petitioner and the 

victim. Resp. Exs. 112 at 4 & 133. Moreover, petitioner admitted 

being sexually attracted to the victim and to having several 

similar online conversations with the victim previously. Resp. Ex. 

112 at 10. And, several witnesses were willing to testify to having 

observed petitioner and the victim behaving in an inappropriate 

manner suggestive of a sexual relationship. Resp. Exs. 112 at 4 & 

143 at 2; see Rhoades v. Henry, 638 F.3d 1027, 1049-50 (9th Cir. 

2010) (" [i) n evaluating prejudice ineffective assistance 

claims based on a duty to investigate must be considered in light 

of the strength of the government's case"). In light of a potential 

25-year sentence if he had gone to trial, petitioner has not shown 

that the PCR court's conclusion that petitioner was not prejudiced 

is an unreasonable application of Strickland. Resp. Ex. 152 at 2. 

15 - OPINION AND ORDER 

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Accordingly, the PCR court's rejECction of this claim is 

neither contrary to, nor an unreasonable application of clearly 

established federal law. 28 U.S. C. § 2254 (d) ( 1) . 

2. Harvest House Records and Witnesses (Ground Three) 

Trial counsel has a "duty to make reasonable investigations or 

to make a reasonable decision that makes particular investigations 

unnecessary." Strickland, 4 66 U.S. at 691. Counsel must, "at 

minimum, conduct a reasonable investigation enabling him to make 

informed decisions about how best to represent his client." 

Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995). 

"[W)here the alleged error of counsel is a failure to 

investigate or discover potentially exculpatory evidence, the 

determination whether the error prejudiced the defendant by causing 

him to plead guilty rather than go to trial will depend on the 

likelihood that discovery of the evidence would have led counsel to 

change his recommendation as to the plea." Hill, 474 U.S. at 59. 

"This assessment, in turn, will depend in large part on a 

prediction whether the evidence likely would have changed the 

outcome of a trial." Id.; Lambert v. Blodgett, 393 F.3d 943, 982 

(9th Cir. 2004). 

Petitioner contends that counsel's failure to investigate and 

communicate with him led to an involuntary plea. Primarily, 

petitioner asserts that counsel was deficient for failing to 

investigate petitioner's residence at Harvest House, including 

16 - OPINION AND ORDER 

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obtaining records of dates of residence and interviewing other 

witnesses. Petitioner's argument fails for several reasons. 

First, as the PCR court found, trial counsel conducted a 

reasonable investigation: ( 1) counsel sent his investigator to 

interview every person petitioner asked counsel to interview; (2) 

counsel's correspondence indicated that he asked his investigator 

to interview Harvest House employees and requested copies of 

records from Harvest House, including a log book; and (3) 

petitioner did not alert counsel to the fact that the dates and 

times of his residence in the indictment were wrong. The PCR court 

was not unreasonable in concluding that counsel was not deficient. 

28 U.S.C. § 2254(d) (1); see Crittendon v. Ayers, 624 F.3d 943, 967 

(9th Cir. 2010) (defense lawyer's duty to investigate and prepare 

a defense does not require that every conceivable witness be 

interviewed) . 

Second, as the PCR court concluded, petitioner failed to 

identify any evidence demonstrating that the Harvest House records 

or witness testimony would have changed the outcome of his trial. 

Although petitioner offered the statement of Harvest House Manager 

Laura Dittman, who noted that she liked petitioner and enjoyed 

their conversations, this evidence is not exculpatory. Resp. Ex. 

148 at 3. Petitioner has failed to even speculate as to what an 

investigation of the Harvest House records would have yielded. See 

Weaver v. Palmateer, 455 F. 3d 958, 971 (9th Cir. 2008) ("where a 

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petitioner cannot even make an unsubstantiated suggestion as to 

what the results of further [fingerprint] testing would have been, 

there is no basis on which a reviewing court can find prejudice.") 

Accordingly, 

prejudiced. 

petitioner has failed to demonstrate he was 

Third, petitioner has not established a reasonable probability 

that but for counsel's alleged insufficient investigation, 

petitioner would not have pleaded guilty and would have insisted on 

going to trial. In this case, the trial record reflects that 

petitioner participated in two thorough plea colloquies, during 

which he represented that he understood the plea petition, had not 

been coerced, and had a clear understanding of what he was doing. 

Resp. Exs. 104 at 2-4 & 105 at 2-4; see Blackledge v. Allison, 431 

U.S. 63, 74 (1977) (representations made by a defendant during a 

plea hearing "carry a strong presumption of verity"). And, given 

the overall strength of the State's case against petitioner, and 

the threat of a 25-year sentence, the PCR court's conclusion that 

petitioner entered a guilty plea knowingly and voluntarily is not 

unreasonable. Accordingly, the PCR court's rejection of ground 

three is neither contrary to, nor an unreasonable application of 

clearly established federal law. 28 U.S.C. § 2254 (d) (1). 

CONCLUSION 

Based on the foregoing, petitioner's Amended Petition For Writ 

of Habeas Corpus (ECF No. 27) is DENIED, and this proceeding is 

18 - OPINION AND ORDER 

Case 6:14-cv-00980-MA Document 39 Filed 10/02/15 Page 18 of 19
DISMISSED, with prejudice. 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. 

DATED this _;]..___day of OCTOBER, 2015. 

Malcolm F. Marsh 

United States District Judge 

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