IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LUIS JAVIER TORRES, 

Petitioner, 

v. 

JOHN MYRICK, Superintendent, 

Two Rivers Correctional Institution, 

Respondent. 

ANTHONY D. BORNSTEIN 

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 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

1 - OPINION AND ORDER -

Civil No. 2:14-cv-01519-PA 

OPINION AND ORDER 

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 1 of 12
PANNER, Judge. 

Petitioner, an inmate at the Two Rivers Correctional 

Institution, brings this habeas corpus action pursuant to 28 

U.S.C. § 2254. For the reasons that follow, the court DENIES the 

Amended Petition for Writ of Habeas Corpus. 

BACKGROUND 

On February 19, 2009, a Wasco County grand jury indicted 

petitioner on one count of Sexual Abuse in the First Degree and 

one count of Coercion. Resp. Exh. 102. The case was initially 

joined with another case against petitioner involving sex offenses 

against two additional victims. Resp. Exhs. 17, 119. Defense 

counsel moved to sever the cases for trial, which the trial judge 

granted. Petitioner waived his right to a jury trial and the 

matter was tried to the court. 1 Resp. Exh. 103. The trial judge 

found petitioner guilty of Sexual Abuse in the First Degree and 

Attempted Coercion, and sentenced petitioner to 81 months of 

imprisonment. Resp. Exh. 103, pp. 80-81, 107. 

Petitioner filed a direct appeal, asserting a single 

assignment of error: the trial court erred in denying 

petitioner's motion for judgment of acquittal on count 1, Sexual 

Abuse in the First Degree. Resp. Exh. 104, p. i. The Oregon 

Court of Appeals affirmed without opinion, and the Oregon Supreme 

1

A jury convicted petitioner in the other case. Resp. Exh. 

103, pp. 86-88, 103. That conviction is not at issue in this case. 

2 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 2 of 12
Court denied review. State v. Torres, 241 Or. App. 573, 250 P.3d 

464, rev. denied, 350 Or. 423, 256 P.3d 1097 (2011). 

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

Resp. Exhs. 109, 110. Following an evidentiary hearing, the PCR 

trial judge denied relief. Resp. Exh. 122. Petitioner appealed, 

again asserting a single assignment of error: the PCR court erred 

in denying relief on petitioner's claim of ineffective assistance 

based on trial counsel's advice to petitioner not to testify. 

Resp. Exh. 123, p. i. The Oregon Court of Appeals affirmed 

without opinion, and the Oregon Supreme Court denied review. 

Torres v. Nooth, 262 Or. App. 666, 328 P.3d 840, rev. denied, 355 

Or. 751, 331 P.3d 1011 (2014). 

On September 22, 2014, petitioner filed his Petition for Writ 

of Habeas Corpus in this court. The court appointed counsel to 

represent petitioner, and on March 4, 2015, petitioner filed an 

Amended Petition for Writ of Habeas Corpus alleging two grounds 

for relief: 

Ground One: Petitioner was denied his right to 

effective assistance of counsel in violation of the 

Sixth and Fourteenth Amendments in the following 

particular: 

A. Trial counsel improperly advised him not to testify 

at his criminal trial. This advice was erroneous 

where counsel effectively locked petitioner into 

this decision weeks before trial and for the 

purpose of obtaining severance of the trial from 

another criminal matter. Petitioner was thus 

denied the opportunity to provide relevant and 

vital testimony at his trial. 

3 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 3 of 12
Ground Two: Petitioner was denied his right to Due 

Process under the Fourteenth Amendment in that his 

conviction for sex abuse in Count One of the underlying 

indictment rests on constitutionally insufficient 

evidence. 

In his Brief in Support of Amended Petition, petitioner 

addresses only the claim alleged in Ground One. Respondent argues 

petitioner is not entitled to relief on either claim because the 

state court decision denying relief on Ground One is entitled to 

deference, because petitioner failed to meet his burden of proof 

on the Claim alleged in Ground Two, and in any event, because the 

claim alleged in Ground Two is procedurally defaulted. 

DISCUSSION 

I. Ground One - Ineffective Assistance of Trial Counsel 

A. Legal Standards 

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) was 

"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). The state court's findings of fact are presumed 

correct, and a petitioner bears the burden of rebutting the 

4 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 4 of 12
presumption of correctness by clear and convincing evidence. 28 

U.S.C. § 2254 (e) (1). 

Section 2254(d) is a "'guard against extreme malfunctions in 

the state criminal justice systems, not a substitute for ordinary 

error correction through appeal. '" Hibbler v. Benedetti, 693 F. 3d 

1140, 1148 (9th Cir. 2012) (quoting Harrington v. Richter, 562 

U.S. 86, 101 (2011)) (additional internal quotation omitted). 

"' [T] he question under AEDPA is not whether a federal court 

believes the state court's determination was incorrect but whether 

that determination was unreasonable a substantially higher 

threshold.'" Id. at 1146 (quoting Schriro v. Landrigan, 550 U.S. 

465, 473 (2007)). 

A state court acts "contrary to" clearly-established federal 

law if it arrives at a conclusion opposite to that reached by the 

Supreme Court on a question of law or if it decides a case 

differently than the Supreme Court on a set of materially 

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 

(2000) . 

A state court decision is an "unreasonable application" of 

clearly-established federal law if the court: (1) identifies the 

correct governing legal principle from Supreme Court decisions, 

but unreasonably applies that principle to the facts of the 

prisoner's case; or (2) either unreasonably refuses to extend the 

governing legal principle or unreasonably extends it to a new 

5 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 5 of 12
context where it should not apply. Id. at 407, 413. Under this 

standard of review, a federal court may not issue a writ of habeas 

corpus because it concludes the state court applied 

clearly-established federal law erroneously or incorrectly. The 

state court decision must be "objectively unreasonable." Lockyer 

v. Andrade, 538 U .S. 63, 75 (2003). 

To prevail on a claim of ineffective assistance of counsel, 

petitioner must show both (1) that the attorney's performance fell 

below an objective standard of reasonableness; and (2) that the 

performance prejudiced the defense. Strickland v. Washington, 466 

u.s. 668, 687 (1984). A defendant is prejudiced by counsel's 

deficient performance if "there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the 

proceeding would have been different." Clark v. Arnold, 769 F.3d 

711, 725 (9th Cir. 2014) (quoting Strickland, 466 U.S. at 694). 

There is a strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance, or 

what "might be considered sound trial strategy." Strickland, 466 

U.S. at 689. Reasonableness is judged as of the time of counsel's 

conduct, not in hindsight. Id. at 689-90. The petitioner must 

identify the acts or omissions of counsel that are alleged not to 

have been the result of reasonable professional judgment. The 

court must then determine whether, in light of all the 

6 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 6 of 12
circumstances, the identified acts or omissions were outside the 

wide range of professionally competent assistance. Id. at 690. 

"Judicial scrutiny of counsel's performance must be highly 

deferential." Id. at 689. 

Establishing that a state court's application of Strickland 

was unreasonable under§ 2254(d) is all the more difficult. "The 

standards created by Strickland and§ 2254(d) are both 'highly 

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

so. When§ 2254(d) applies, the question is not whether 

counsel's actions were reasonable. The question is whether there 

is any reasonable argument that counsel satisfied Strickland's 

deferential standard." Harrington, 562 U.S. at 105 (citations 

omitted). 

B. Analysis 

Petitioner contends his trial counsel provided ineffective 

assistance of counsel when he improperly advised petitioner not to 

testify at trial. The PCR trial judge rejected this claim, 

finding as follows: 

Petitioner had two cases. They were consolidated 

for trial. [Attorney] moved to sever on grounds that 

[petitioner] wanted to testify in other case and not in 

this one. Other case tried to jury, this one to the 

court. [Attorney] did not believe [the district 

attorney] could prove forcible compulsion in this case 

so better tried to judge. 

No proof of any exculpatory witnesses or evidence. 

Reasonable strategy decision to sever cases. 

7 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 7 of 12
[Attorney] discussed severance/not testifying weeks 

before trial and told him decision up to him. 

[Petitioner] decided several weeks before trial. 

[Court] believes [petitioner] knew his choices, and made 

decision, now he regrets it. 

No inadequacy, no prejudice. 

Resp. Exh. 122, pp. 1-2. 

The PCR trial judge's decision was not objectively 

unreasonable. A tactical decision exercised by counsel deserves 

deference when counsel makes an informed decision based on 

strategic trial considerations and the decision appears reasonable 

under the circumstances. Sanders v. Ratelle, 21 F.3d 1446, 1456 

(9th Cir. 1994). On the other hand, "it cannot be permissible 

trial strategy, regardless of the merits or otherwise, for counsel 

to override the ultimate decision of a defendant to testify 

contrary to his advice." United States v. Mullins, 315 F.3d 449, 

453 (9th Cir. 2002). This is so because "a defendant in a 

criminal case has the right to take the witness stand and testify 

in his own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). 

The defendant may, however, waive this right, either 

explicitly or implicitly. United States v. Pino-Noriega, 189 F.3d 

1089, 1094 (9th Cir.), cert. denied, 528 U.S. 989 (1999). Such 

waiver may be inferred from a defendant's failure to testify at 

trial or to notify the court of his desire to testify. Id. at 

10 94-95. "Although the ultimate decision whether to testify rests 

with the defendant, he is presumed to assent to his attorney's 

8 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 8 of 12
tactical decision not to testify," but he "can reject his 

attorney's tactical decision by insisting on testifying, speaking 

to the court, or discharging his lawyer." United States v. 

Joelson, 7 F.3d 174, 177 (9th Cir.), cert. denied, 510 U.S. 1019 

( 1993) . 

Petitioner did not voice any objection to his attorney's 

strategy at trial and instead stood silent when his attorney 

informed the trial judge that he would call no witnesses. Resp. 

Exh. 103, p. 70. In the PCR proceeding, petitioner did not assert 

that he told his attorney he wanted to testify but his attorney 

refused to allow him. Resp. Exh. 121. In fact, petitioner's 

attorney stated that he "told [petitioner] he had a constitutional 

right to testify. I advised him not to testify, but that the 

decision was ultimately his to make. At least six weeks prior to 

the trials [petitioner] decided he would testify in [the other 

case] and would not testify [in this case]." Resp. Exh. 116, p. 

2. 

Petitioner has not established that his attorney prevented 

him from testifying. Petitioner was aware of his right to 

testify, and he waived that right by his silence. See U.S. v. 

Gillenwater, 717 F.3d 1070, 1080 (9th Cir. 2013) (court can infer 

that a defendant has personally waived the right to testify when 

defense counsel elects not to call the defendant and, despite 

9 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 9 of 12
being present, the defendant takes no affirmative action to 

demonstrate his disagreement with counsel). 

Moreover, petitioner has not established prejudice. 

Petitioner stated in the PCR hearing that, if given the 

opportunity, he would have testified that the victim1 s allegations 

were false, 11 that it was all consensual,, that the victim would 

11 flirt 11 with him, and that the victim gave him her phone number 

and his co-workers saw that. Resp. Exh. 121, pp. 7-8. Even if 

petitioner had testified as such at trial, in light of the 

evidence against him there is not a reasonable probability that 

the result of the proceeding would have been different. 

The PCR court 1 s decision denying relief on petitioner 1 s 

ineffective assistance of counsel was not contrary to or an 

unreasonable application of Strickland, and is entitled to 

deference. Accordingly, petitioner is not entitled to habeas 

corpus relief on the claim alleged in ground one. 

II. Ground Two - Insufficient Evidence 

As noted, though he alleges in his amended petition a claim 

of insufficient evidence supporting the conviction for Sex Abuse 

in the First Degree, petitioner does not address this claim in his 

brief. A petitioner seeking federal habeas relief bears the 

burden of showing the court he is entitled to relief. Woodford v. 

Visciotti, 537 U.S. 19, 24 (2002); Davis v. Woodford, 384 F.3d 

628, 638 (9th Cir. 2004), cert. dismissed, 545 U.S. 1165 (2005). 

10 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 10 of 12
Pursuant to 28 U.S.C. § 2248, "[t]he allegations of a return to 

the writ of habeas corpus or of an answer to an order to show 

cause in a habeas corpus proceeding, if not traversed, shall be 

accepted as true except to the extent that the judge finds from 

the evidence that they are not true." 

The court has reviewed the record and finds petitioner has 

not met his burden of showing he is entitled to relief on the 

insufficient evidence claim not argued in his memorandum. The 

court's review of the state direct appeal proceedings confirms 

that the state court decisions on the claim alleged in Ground Two 

was not contrary to or an unreasonable application of clearly 

established federal law as determined by the Supreme Court. 2 

Accordingly, petitioner is not entitled to habeas corpus relief on 

the claim alleged in Ground Two. 

2Respondent argues petitioner procedurally defaulted this 

claim because he did not raise it as a federal claim in his direct 

appeal. Under 28 U.S.C. § 2254 (b) (2), the court may directly 

address the merits of a habeas petition, without considering 

whether a petitioner's claims were properly exhausted in the state 

courts, "when it is perfectly clear that the applicant does not 

raise even a colorable federal claim." Cassett v. Stewart, 406 

F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 

(2006). Because petitioner's insufficiency of the evidence claim 

is not colorable, the issues of exhaustion and procedural default 

need not be addressed. 

11 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 11 of 12
CONCLUSION 

For these reasons, the court DENIES the Amended Petition for 

Writ of Habeas Corpus 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. See 28 U.S.C. § 2253(c) (2). 

IT IS SO ORDERED. 

DATED this v day of s~Cr, 2015. 

o~~U-- Owen M. nner 

United States District Judge 

i2 - OPINION AND ORDER -

Case 2:14-cv-01519-PA Document 31 Filed 10/02/15 Page 12 of 12