IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ALFREDO HYLTON, 

Petitioner, 

v. 

JERI TAYLOR, 

Respondent. 

KRISTINA HELLMAN 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

FREDERICK M. BOSS 

Deputy Attorney General 

KRISTEN E. BOYD 

Senior Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

Civil No. 2:14-cv-01530-BR 

OPINION AND ORDER 
BROWN, Judge. 

Pe ti ti oner, an inmate at the Eastern Oregon Correctional 

Institution, brings this habeas corpus action pursuant to 28 U.S.C. 

§ 2254. For the reasons that follow, the Court DENIES the Petition 

for Writ of Habeas Corpus (ECF No. 2). 

BACKGROUND 

On November 1, 2004, a Marion County grand jury indicted 

Petitioner on one count of Attempted Murder, two counts of 

Kidnaping in the First Degree, and one count each of Assault in the 

Second Degree, Assault in the Third Degree, and Assault in the 

Fourth Degree. Resp. Exh. 102. The charges were based upon 

allegations that Petitioner and his co-defendant, Pete Quismundo, 

assaulted Petitioner's girlfriend Michelle Simpson, threatened to 

kill her, and tried to force her into a car. 

Pe ti ti oner and Ms. Simpson lived together in an apartment 

which Billie Baller managed. On October 20, 2004, Ms. Baller was 

awakened by screams and banging on her window at about 3:00 a.m .. 

She went outside and saw Petitioner and Quismundo assaulting Ms. 

Simpson. They were on either side of Ms. Simpson and were 

"smashing" her head into the top part of Petitioner's car and 

punching her. Ms. Baller heard both men threaten to kill Ms. 

Simpson, "telling her they were going to cut her up and float her 

down the river and that nobody would ever miss her." Resp. Exh. 

2 - OPINION AND ORDER - -----------------
104, pp. 40-41. Ms. Baller screamed for them to stop, and when 

they did not, she told her daughter-in-law to call 911. 

Ms. Simpson got away from Petitioner and Quismundo and ran 

into Ms. Baller's house. Petitioner and Quismundo got into 

Petitioner's car and drove away. Once back inside, Ms. Baller saw 

that Ms. Simpson was "bloody all over" and was holding her ribs. 

Police Officer Richard Beal responded to the 911 call. 

Officer Beal found Ms. Simpson standing in the doorway of Ms. 

Baller's house with a towel over her left eye. She was crying, was 

"visibly shaking," and had blood "from the top of her hair running 

down the side of her head." Res. Exh. 104, p 140. Ms. Simpson 

told Officer Beal that Petitioner ''had beat her and was trying to 

kill her." Resp. Exh. 104, p. 141. She told Officer Beal that the 

assault began in her apartment, that she ran from the apartment, 

and that Petitioner and Quismundo tried to force her into the car 

"to take her out and kill her." Resp. Exh. 104, pp. 141-42. An 

ambulance arrived and transported Ms. Simpson to the hospital. 

A short time later, another officer stopped Petitioner and 

Quismundo, and Officer Beal went to the stop location. Beal found 

a ''large kitchen knife'' on the front passenger side floorboard of 

the car. Both Petitioner and Quismundo were arrested and taken to 

the police station. 

Officer Beal went to the hospital to speak to Ms. Simpson 

again. Ms. Simpson suffered injuries including "two broken ribs, 

3 - OPINION AND 
two fractured ribs, two shattered discs in her vertebra, and she 

required five stitches." Resp. Exh. 104, p. 77. Ms. Simpson 

provided Officer Beal additional details about the attack. She 

told Officer Beal that Petitioner had become angry and assaulted 

her because she had cheated on him. Petitioner initially hit her 

with an open hand, but then he became more violent, and he hit her 

with his fist on the back of her head and her face. Petitioner 

also stood in front of her and kicked her legs as he questioned 

her, and kicked her in the shins and in the torso as she lay on the 

floor. Ms. Simpson told Officer Beal she became "more and more 

scared'' as Petitioner was getting ''out of control.'' Resp. Exh. 

104, pp. 146-47. 

Ms. Simpson told Officer Beal that Quismundo initially sat on 

the couch and watched Petitioner assault her, but then he started 

"egging (Petitioner] on," telling him "You ought to cut her throat" 

and "let's kill this bitch, man. Come on. Let's make her 

disappear." Resp. Exh. 104, pp. 148-491. Ms. Simpson reported 

that Petitioner told her ''I am going to kill you and you'll never 

see your kids again.'' Resp. Exh. 104, p 149. Because she was 

afraid for her life, Ms. Simpson looked for a way to escape. When 

Petitioner and Quismundo went into the kitchen, Ms. Simpson heard 

a drawer open and heard what she believed to be the sound of a 

knife pulled out. She told Officer Beal that she bolted for the 

4 - OPINION AND ORDER -
door and ran to Ms. Baller's house, where she screamed and pounded 

on the house to get someone's attention. 

Ms. Simpson told Officer Beal that Petitioner was right behind 

her and grabbed her by the hair and pulled her to his car. 

Petitioner said ''Bitch. Where do you think you're going.'' Resp. 

Exh. 104, p. 150. Ms. Simpson pleaded for her life, but Petitioner 

told her, "You're going for a ride and nobody is going to give a 

fuck. Come on man. Let's cut this bitch." Resp. Ex. 104, p. 151. 

Ms. Simpson told Officer Beal she remembered Petitioner holding 

her, Quismundo hitting her, and her head "bouncing off the top of 

the car." Resp. Exh. 104, p. 151. When someone screamed, 

Petitioner and Quismundo released her and she ran into Ms. Baller's 

house. 

Later that same day, Officer Beal contacted Ms. Simpson again 

at Ms. Baller's house. Ms. Simpson again said Petitioner was upset 

because she had cheated on him. She told Officer Beal that there 

was no question in her mind that if Baller had not intervened, "she 

would have been killed.'' Resp. Exh. 121, p. 13. Officer Beal also 

talked to Ms. Baller, who told him she saw Petitioner and Quismundo 

banging Ms. Simpson's head off the top of the car, and reported 

hearing Petitioner and Quismundo make statements like: "Come on. 

Let's cut this bitch. Let's go man.'' Resp. Exh. 104, p. 163. 

Officer Beal interviewed Quismundo twice. The first time, 

immediately after the incident, Quismundo told Beal he was actually 
present to see Petitioner assault Ms. Simpson and that he tried to 

stop him from injuring her, but then Quismundo said something like 

"if I would have tried to stop him . well you see how big he is 

I wouldn't be able to help her.'' Resp. Exh. 121, pp. 9-10. 

The second time Officer Beal spoke to Quismundo, he told Officer 

Beal Petitioner had been fighting with Ms. Simpson for about an 

hour before the police arrived, and he described the events inside 

the apartment as Petitioner asking questions of Ms. Simpson and 

then he would hit or kick her. Quismundo mentioned numerous times 

that he would have stopped Petitioner from assaulting Ms. Simpson, 

but because of Petitioner's size, he did not. 

Before trial, Ms. Simpson did not appear for a grand jury 

proceeding. The prosecution asked the court to declare her a 

material witness, and a hearing was held. At the hearing, Ms. 

Simpson testified that she would appear at trial and wanted to 

testify against Pe ti ti oner. She denied that she had spoken to 

Petitioner after the incident, even though the state had recordings 

of her calls to Petitioner, and Ms. Simpson was convicted of 

perjury for lying under oath at the hearing. 

Also before trial, Petitioner's attorney had a private 

investigator interview Ms. Simpson. Ms. Simpson denied to the 

private investigator that Petitioner had hit her, and she placed 

the blame on Quismundo instead. 
Petitioner's case was joined with Quismundo's case for trial. 

At the joint trial, the state presented testimony from three 

witnesses: Ms. Baller, Ms. Simpson, and Officer Beal. 

Ms. Baller testified consistently with what she had reported 

to Officer Beal, that is, she heard screaming and someone knocking 

on her window on the night of the altercation, and she saw 

Petitioner and Quismundo holding Ms. Simpson and heard them 

"telling her that they were going to cut her up and float her down 

the river." Resp. Exh. 104, pp. 32-33. Ms. Baller saw both 

Quismundo and Petitioner holding and hitting Ms. Simpson. 

Ms. Simpson's testimony differed dramatically from what she 

told Officer Beal. She testified she either did not remember 

making inculpatory statements to Officer Beal about the attack and, 

if she had made them, they were false. Ms. Simpson blamed the 

attack entirely on Quismundo and portrayed Petitioner as a 

bystander. She testified that Quismundo, not Petitioner, beat her 

and kicked her while they were in the apartment because he was 

angry at her for cheating on Petitioner. Ms. Simpson testified 

that Petitioner was asleep, and that after about five minutes she 

awakened him and he got her a towel and tried to help her to the 

car. She testified that she did not go to Ms. Baller's house and 

bang on her window or yell for help, and that she told Ms. Baller 

to make up the incriminating statements she gave to Officer Beal. 
Officer Beal testified about the three conversations he had 

with Ms. Simpson and relayed the statements she made about the 

attack as described above. On cross-examination, Quismundo's 

attorney asked Officer Beal about statements Quismundo had made to 

him. Officer Beal testified that Quismundo told Beal that he would 

have intervened but he was scared of Petitioner because of his 

size, that Quismundo heard Petitioner tell Ms. Simpson he wanted to 

kill her and she would never see her children again, and that had 

Quismundo not been there to intervene, he believed Petitioner would 

have killed Ms. Simpson. Officer Beal also testified that 

Quismundo told him that Petitioner was the one who actually struck 

Ms. Simpson when they were in the apartment. 

At the close of the state's evidence, both Petitioner and 

Quismundo moved for judgments of acquittal, which the trial judge 

denied. Petitioner's attorney then raised another matter with the 

Court: 

DEFENSE COUNSEL: There is one other matter. It is a pro 

se matter that I have discussed. [Petitioner] previously 

-- and I don't think that he agrees with my analysis of 

the law on it. I think [ Petitioner's J belief has 

historically been that this should not have been a joint 

trial. I think he feels that the testimony of the codefendant puts him at a disadvantage or, at least, the 

purported testimony could. It's kind of a two-on-one 

situation for him. 

I previously, months ago, talked to what his 

interpretation of the statute and case law was; that I 

didn't think he had any chance in having severed trials. 

But, again, even this morning he's written me a note that 

he wanted me to bring that up to the Court. He still 

believes that it was inappropriate to have these matters 
together, and I just thought I would better do that since 

he has asked me to do so. 

* * * 

PROSECUTOR: It is a little late now, I guess. If he is 

just making his record, he's made his record. 

THE COURT: Well, certainly, it is late at this time to 

file a motion to sever, but I can also indicate that a 

motion to sever would not have been granted given that 

these cases clearly arise out of the same incident. 

Resp. Exh. 105, pp. 20-21. 

Neither Petitioner nor Quismundo testified or put on any 

evidence in defense. The jury found Petitioner guilty on all 

charges. After the jury verdict, the case proceeded to a 

sentencing hearing at which witnesses testified in support of 

aggravating factors alleged in the indictment. The jury found all 

of the aggravating factors should be applied to the charges against 

Petitioner. Based upon the jury's findings, the trial judge 

imposed upward durational departures from the applicable sentencing 

guidelines and ordered four of the sentences to be served 

consecutively for a total of 438 months of imprisonment. 

Petitioner directly appealed his convictions, asserting only 

errors pertaining to his sentence. The Oregon Court of Appeals 

affirmed in part on the first appeal, and affirmed in a written 

opinion on appeal after remand, and the Oregon Supreme Court denied 

review both times. State v. Hylton, 210 Or. App. 104, 150 P.3d 47 

(2006), rev. denied, 342 Or. 473, 155 P.3d 51 (2007); State v. 

___ ···--·····--9.::-_.Q_PINION AND ORDl2.B_ -
Hylton, 230 Or. App. 525, 216 P.3d 899, rev. denied, 347 Or. 349, 

222 P.3d 30 (2009). 

Petitioner then sought state post-conviction relief (''PCR''). 

Following an evidentiary hearing, the PCR trial judge denied 

relief. Petitioner appealed, but the Oregon Court of Appeals 

affirmed without opinion and the Oregon Supreme Court denied 

review. Hylton v. Coursey, 260 Or. App. 767, 320 P.3d 675, rev. 

denied, 355 Or. 879, 333 P.3d 333 (2014). 

On September 25, 2014, Petitioner filed his Petition for Writ 

of Habeas Corpus Pursuant to 28 U.S. C. § 2254 with this Court. 

Petitioner alleges three claims for relief: 

Ground One: Petitioner was denied his 6th and 14th 

Amendment rights under the U.S. Constitution to a jury 

trial. 

Supporting Facts: Petitioner was denied his 

Constitutional right to a jury trial when the sentencing 

court made factual findings to support the imposition of 

consecutive sentences rather than have a jury make those 

findings. 

Ground Two: Petitioner was denied his right to the 

adequate assistance of trial counsel under the 5th, 6th, 

and 14th Amendments to the U.S. Constitution. 

Supporting Facts: 

( 1) Counsel failed to move to sever the Defendant's 

trial from that of the co-defendant to avoid the 

possible admission of co-defendant's hearsay 

statements; 

(2) Counsel failed to object to the admission of 

hearsay statements of the co-defendant, which 

denied Defendant his right to confront his accuser 

in violation of the 6th and 14th Amendments to the 

U.S. Constitution. 

Ground Three: Petitioner was denied his right of 

confrontation in violation of the 6th and 14th Amendments 

to the U.S. Constitution. 
Supporting Facts: A co-defendant's hearsay statements 

were allowed to be presented before the jury-- without 

Petitioner being given an opportunity to confront his 

accuser. 

In his Brief in Support of his Petition, Petitioner addresses 

only the ineffective assistance of counsel claims alleged in Ground 

Two; Petitioner ''submits the remaining claims for this Court's 

consideration on the existing record." Respondent argues 

Petitioner is not entitled to relief on the claims alleged in 

Grounds One and Three because he failed to meet his burden on those 

claims. Respondent also argues that relief should be denied on 

both sub-claims alleged in Ground Two because the state PCR court's 

denial of relief was not contrary to or an unreasonable application 

of clearly established federal law. 1 

1 In his Brief in Support, Petitioner argues he procedurally 

defaulted sub-claim (2), but that the procedural default is excused 

by the ineffective assistance of his PCR trial counsel under 

Martinez v. Ryan, 566 U.S. 1, 132 s. Ct. 1309 (2012). Respondent 

does not agree that the claim was procedurally defaulted, in any 

event, contends Petitioner is not entitled to relief on the merits 

of the claim. Because the Court finds Petitioner is not entitled 

to relief on the merits of this claim, the issue of procedural 

default need not be addressed. See 28 U.S.C. § 2254(b) (2) ("[a]n 

application for writ of habeas corpus may be denied on the merits, 

notwithstanding the failure of the applicant to exhaust the 

remedies available in the courts of the State") ; Runningeagle v. 

Ryan, 686 F. 3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion 

afforded under § 2254 (b) (2) to decline to address procedural 

default issue where relief denied on the merits), cert. denied, 133 

S. Ct. 2766 (2013) . 

____________ 1_1__:-_Q]o>INIQN _ANp _ _QRDER__~-------------------------- ------ -----------------------------
DISCUSSION 

I. Ground Two - Ineffective Assistance of Counsel 

A. Legal Standards 

A petition for writ of habeas corpus filed by a state prisoner 

may 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). A habeas 

petitioner seeking relief under § 2254 bears the burden of proof. 

Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398 (2011). 

"Under § 2254 (d) (1), a state prisoner must show that the state 

court's ruling on the claim being presented in federal court was so 

lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for 

fairminded disagreement," White v. Wheeler, 

(2015) (citing White v. Woodall, 134 S. Ct. 

(internal quotations omitted). In White, 

136 S. Ct. 456, 460 

1697, 1702 (2014)) 

the Supreme Court 

reiterated the high standard of deference required by§ 2254(d): 

"[t]his Court, time and again, has instructed that the AEDPA, by 

setting forth necessary predicates before state-court judgments may 

be set aside, 'erects a formidable barrier to federal habeas relief 

12 - OPINION AND QBDJ;:R -: .. ~ .. ~~ .. 
for prisoners whose claims have been adjudicated in state court.'" 

White, 134 S. Ct. at 460 (quoting Burt v. Titlow, 134 S. Ct. 10, 16 

(2013)). 

Claims of ineffective assistance of counsel are examined under 

Strickland v. Washington, 466 U.S. 668 (1984). "The benchmark for 

judging any claim of ineffectiveness must be whether counsel's 

conduct so undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having produced a 

just result." Id. at 686. In order to prevail on a claim of 

ineffectiveness of counsel, a petitioner must establish two 

factors. 

First, the petitioner must establish that counsel's 

performance was deficient, i.e., that it fell below an ''objective 

standard of reasonableness" under prevailing professional norms, 

"not whether it deviated from best practices or most common 

custom." Harrington, 562 U.S. at 105 (citing Strickland, 466 U.S. 

at 690) . ''A court considering a claim of ineffective assistance 

must apply a 'strong presumption' that counsel's representation was 

within the 'wide range' of reasonable professional assistance." 

Id. at 104 (quoting Strickland, 466 U.S. at 689). 

Second, the petitioner must establish that he was prejudiced 

by counsel's deficient performance, i.e., that "there is a 

reasonable probability that, but for counsel's unprofessional 

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

13 - OPINION AND OR[)]<;R -
Strickland, 4 66 U.S. at 694. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. Id. 

"The likelihood of a different result must be substantial, not just 

conceivable." Harrington, 562 U.S. at 112 (citing Strickland, 466 

U.S.at693). 

The standards of both 28 U.S.C. § 2254(d) and Strickland are 

''highly deferential, and when the two apply in tandem, review is 

doubly so." Harrington, 562 U.S. at 105 (quotation marks omitted). 

"[T)he question [under§ 2254(d)] is not whether counsel's actions 

were reasonable. The question is whether there is any reasonable 

argument that counsel satisfied Strickland's deferential standard." 

Id. 

B. Failure to Move to Sever Petitioner's Trial 

In subpart (1) of Ground Two Petitioner alleges trial counsel 

provided ineffective assistance of counsel when he failed to move 

to sever Petitioner's trial from that of his co-defendant. The PCR 

trial judge denied relief on this claim, noting that the trial 

court ruled that a "motion to sever was late, but would have been 

denied anyway." Resp. Exh. 125, p. 1. The PCR trial judge 

concluded Petitioner did not show prejudice. 

In an affidavit filed with the PCR trial court, Petitioner's 

trial attorney responded to Petitioner's claim of ineffective 

assistance of counsel: 

9. Turning to Mr. Hylton' s claims, I did consider 

filing a motion to sever the trials of Mr. Hylton 

... ~lA - OEINlON~AND~ORDER -.~ .... ~~~~ .. 
and Mr. Quismundo. I was aware of Mr. Quismundo's 

statement to the police. I did some research into 

both hearsay objections and severance of the trial. 

I was aware that ORS 136.060(1) required that 

jointly charged defendants be tried jointly unless 

the court concluded before trial that [it) is 

clearly inappropriate to do so. My research found 

authority that severance was not required per se 

when codefendants assert mutually exclusive 

defenses. State v. Turner, 153 Or App 66 (1998); 

State v. Coleman, 130 Or App 656 (1994). I found 

case law which appeared to support the admission of 

Mr. Quismundo' s statements at trial. State v. 

Wilson, 323 Or 498 (1996); State v. Nielsen, 316 Or 

611 (1993). 

10. I was also aware of Crawford v. Washington, 541 US 

36 (2004) and issues related to Sixth Amendment 

Confrontation. I felt that if Mr. Quismundo was an 

unavailable witness, his statement to the police 

would not be admissible against Mr. Hylton and 

severance would be appropriate. I contacted Mr. 

Quismundo's attorney, Robert Botta, and requested 

permission to interview Mr. Quismundo. The request 

was denied. Mr. Botta did advise me that his 

client's position remained the same, that is, that 

he had seen Mr. Hylton assault Ms. Simpson but had 

not intervened out of fear. I specifically asked 

Mr. Botta if his client was going to testify. I 

was advised that the decision had not yet been made 

and probably would not be made until they saw what 

evidence and testimony was actually presented at 

trial. It was my impression that they wanted to 

know what Ms. Simpson was going to say when she 

testified. 

11. Given those circumstances, I did not file a motion 

to sever the trials because I did not believe it 

would be successful without the ability to 

establish Mr. Quismundo as an unavailable witness. 

As it turned out, Mr. Quismundo decided not to 

testify and I was advised of this during the trial. 

In hindsight, I think filing that motion might have 

been appropriate. I believe my decision at that 

time was influenced by my analysis of the case 

itself. In my opinion, there was no doubt that Ms. 

Simpson had been severely beaten and received 

significant injuries. There was also no question 

15 - OPINION AND ORDER-: 
that Mr. Hylton had been present when it happened. 

The statements made by Ms. Simpson and Ms. Baller 

directly implicated Mr. Hylton. At a minimum, the 

evidence supported criminal liability on an aid or 

abet theory. Mr. Hylton's position that he did not 

know that Mr. Quismundo was assaulting Ms. Simpson 

over an extended period of time was not believable. 

I felt strongly that a jury would want to hold 

someone responsible for the beating and related 

crimes. In light of Ms. Simpson's interview with 

my investigator and the change in her description 

of the events, I felt strategically Mr. Hylton's 

only chance for acquittal was if the jury had the 

option of convicting Mr. Quismundo instead. 

Resp. Exh. 122, pp. 2-4. 

The PCR trial court's decision denying relief on this claim is 

supported by the record. Petitioner has not established that his 

attorney should have argued Quismundo would choose to invoke his 

Fifth Amendment and render himself unavailable to testify or that 

counsel knew before trial that Quismundo would not be testifying. 

As noted, counsel contacted Quismundo's attorney before trial, who 

indicated they had not decided whether Quismundo would take the 

stand. Moreover, in his opening statement to the jury, Quismundo's 

attorney said Quismundo would testify and described in some detail 

what that testimony would say. 

In addition, the strategy of Petitioner's counsel regarding 

the motion to sever was reasonable in light of the facts at the 

time. As counsel attested, Ms. Simpson's and Ms. Baller's 

statements to Officer Beal directly implicated Petitioner. In 

light of the evidence, including the knowledge that Ms. Simpson's 

testimony at trial would likely diverge from her statements to 
Officer Beal, counsel reasonably determined a jury would ''want to 

hold someone responsible,'' and Petitioner's only chance for an 

acquittal was if the jury also had the option of convicting 

Quismundo instead of Petitioner. 

Finally, the trial judge ruled that a motion to sever would 

not have been successful even if it had been timely filed. Under 

Oregon law, joinder of trial for co-defendants is generally 

mandated: 

(1) Jointly charged defendants shall be tried jointly 

unless the court concludes before trial that it is 

clearly inappropriate to do so and orders that a 

defendant shall be tried separately. In reaching its 

conclusion the court shall strongly consider the victim's 

interest in a joint trial. 

Or. Rev. Stat. § 136.060. Review of a court's decision on a motion 

to sever is to be considered based upon the circumstances as they 

appear prior to trial, at the time of the motion, and not in light 

of all of the facts adduced at trial. State v. Turner, 153 Or. 

App. 66, 74 (1998). The trial court's decision here that a motion 

to sever the trial would not have been granted is a determination 

of Oregon law which is not subject to habeas corpus relief. See 

Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) (state courts 

have the last word on the interpretation of state law) . Because 

Petitioner cannot establish that a motion to sever would have been 

granted, he has not established prejudice resulting from the 

failure to do so. Accordingly, Petitioner is not entitled to 

habeas corpus relief on this claim. 
C. Failure to Object to Admission of Hearsay Statements 

In subpart (2) of Ground Two, Petitioner alleges trial counsel 

was ineffective in failing to object to the admission of the 

hearsay statements made by Quismundo in violation of Petitioner's 

right to confrontation of his accuser. Petitioner argues that 

Quismundo's statements directly implicated Petitioner as the 

primary, and most culpable, actor in this criminal episode. 

According to Petitioner, had the statements been excluded, there is 

a reasonable probability the jury would not have found Petitioner 

guilty of Attempted Murder. 

The Sixth Amendment guarantees a criminal defendant the right 

"to confront the witness against him." Bruton v. United States, 

391 U.S. 123, 137 (1968). In Crawford v. Washington, 541 U.S. 36 

(2004), the Supreme Court held that when the declarant is 

unavailable, a testimonial statement is inadmissible unless the 

defendant had a prior opportunity to cross-examine the declarant. 

Here, Quismundo did not testify at trial, so he was ''unavailable.'' 

Quismundo made the statements in question to Officer Beal, so they 

were testimonial in nature. See Crawford, 541 U.S. at 52 

("testimonial" applies at a minimum to police interrogations); 

Ocampo v. Vail, 649 F.3d 1098, 1007-08 (9th Cir. 2011) (there is 

"no question" but that a witness's statements to investigating 

detectives were testimonial) . Thus, Quismundo' s hearsay statements 

were subject to challenge as a Crawford violation. 

18 - OPINIQN AND QRDE; 
The fact that Quismundo's hearsay statements were subject to 

challenge by Petitioner's trial attorney, however, does not end the 

inquiry. Petitioner still must establish that, had counsel 

objected and successfully excluded the statements, the outcome of 

Petitioner's trial would have been different. See Mata v. Sherman, 

Case No. 1:13-cv-01040 DAD MJS (HC), 2016 WL 1642642, at *15 (E.D. 

Cal. Apr. 25, 2016) (rejecting ineffective assistance of counsel 

claim based on failure to object to hearsay testimony on 

Confrontation Clause grounds under Crawford because habeas 

petitioner failed to establish prejudice) . Specifically, 

Petitioner must establish a reasonable probability that, but for 

the failure to exclude the hearsay statements, the jury would not 

have found Petitioner guilty. 

As explained above, the evidence against Petitioner at trial 

was substantial. Ms. Baller testified that she saw Petitioner and 

Quismundo assaulting Ms. Simpson, smashing her head into the top of 

the car and punching her while they threatened to ''cut her up and 

float her down the river and that nobody would ever miss her. And 

they just kept doing it.'' Resp. Exh. 104, pp. 40. She testified 

that only after she approached the car did Quismundo stop hitting 

Ms. Simpson and that Quismundo told Petitioner to "just let loose 

of her, Man. It's not worth it. You are going to jail if you 

don't quit. And they stopped.'' Resp. Exh. 104, p. 41. 
Officer Beal testified that when he questioned Ms. Simpson the 

first time, she told him Petitioner "had beat her and was trying to 

kill her." Resp. Exh. 104, pp. 134-36. He testified that Ms. 

Simpson repeated this the second time he interviewed her, and 

provided detail about Petitioner's attack, how she fled when she 

hear Petitioner getting a knife in the kitchen, and how they 

followed her out of the house and Petitioner grabbed her by the 

hair and hit her against the car. Ms. Simpson repeated 

Petitioner's statement that he was going to kill her and she would 

"never see [her] kids again." Resp. Exh. 104, pp. 145-151. 

Officer Beal testified he interviewed Ms. Simpson a third 

time, approximately 18 hours after the incident. Ms. Simpson again 

told Officer Beal that Petitioner was upset because she had cheated 

on him, and that when she was pleading for her life both Petitioner 

and Quismundo were telling her that she would never see her 

children again and that no one was going to care if she was 

missing. Resp. Exh. 104, pp. 161-162. 

Finally, Officer Beal testified that he questioned Ms. Baller 

upon his arrival at the scene of the incident, and that she told 

him that she could see Petitioner and Quismundo "banging Ms. 

Simpson's head off the top of the car, and she heard -- she 

described both Mr. Hylton and Mr. Quismundo making statements like: 

Come on. Let's cut this bitch. Let's go man." Resp. Exh. 104, p. 

163. Ms. Baller told Officer Beal she also heard Ms. Simpson 

20 - OPINION AND ORDER::: 
pleading for her life, saying ''You're not going to put me in the 

river. I want to see my kids.'' Resp. Exh. 104, p. 163. 

The hearsay statements Quismundo made to Officer Beal were, at 

best, cumulative of the evidence previously discussed. Quismundo 

said that Petitioner wanted to kill Ms. Simpson, that he believed 

Petitioner would have killed her if he had not been there to 

intervene, that Petitioner told Ms. Simpson "I'm going to kill you" 

and "You'll never see your kids again," and that Petitioner struck 

Ms. Simpson when they were sitting on the couch in the apartment. 

Resp. Exh. 104, pp. 158-60. Considering all of the evidence, the 

Court finds no reasonable probability of a different outcome had 

Petitioner's attorney objected to and succeeded in excluding 

Quismundo's hearsay statements on Confrontation Clause grounds. 

II. Grounds One and Three - Claims Not Addressed by Petitioner 

As noted, Petitioner does not provide argument to support the 

claims alleged in Grounds One and Three. Additionally, Petitioner 

does not attempt to refute Respondent's argument that these claims 

do not entitle Petitioner to habeas corpus relief. Accordingly, 

Petitioner has failed to sustain his burden of demonstrating why he 

is entitled to relief on his unargued claims. See Lampert v. 

Blodgett, 393 F. 3d 943, 970 n. 16 (9th Cir. 2004) (petitioner bears 

burden of proving his case); Davis v. Woodford, 384 F.3d 628, 638 

(9th Cir. 2003) (same). 
The court, nevertheless, has reviewed Petitioner's unargued 

claims and is satisfied that they do not entitle Petitioner to 

relief. The Oregon appellate court decisions on the claim alleged 

in Ground One are not contrary to or an unreasonable application of 

clearly established federal law, and, in any event, Petitioner 

procedurally defaulted the claim alleged in Ground Three. 

Accordingly, the Court denies habeas corpus relief on the claims 

alleged in Grounds One and Three. 

CONCLUSION 

For these reasons, the Court DENIES the Petition for Writ of 

Habeas Corpus (ECF No. 2) and DISMISSES this action. 

The Court DENIES a certificate of appealability as Petitioner 

has not made a substantial showing of the denial of a 

constitutional right. 

IT IS SO ORDERED. 

DATED this 12fr'-

See 28 U.S.C. § 2253{c) (2). 

day of September, 2017. 

22 -: QPINION AND Ql\DE