IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CHRISTOPHER TERRELL LAMBERT, 

Case No. 2:15-cv-00847-SI 

Petitioner, 

OPINION AND ORDER 

v. 

GUY HALL, 

Respondent. 

Kristina S. Hellman 

Assistant Federal Public Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum, Attorney General 

Nicholas M. Kallstrom, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 
SIMON, District Judge. 

Petitioner brings this habeas corpus 

U.S.C. § 2254 challenging the legality 

case pursuant to 28 

of his state-court 

convictions for Attempted Murder, Assault, and Unlawful Use of a 

Firearm. For the following reasons, the Amended Petition for 

Writ of Habeas Corpus (#27) is denied. 

BACKGROUND 

On July 28, 2002, Petitioner visited the Quest nightclub 

in Portland where he became involved in a dispute with Hollis 

McClure. Bystanders separated the two men but, shortly 

thereafter, Petitioner fired a handgun in McClure's direction. 

Petitioner missed McClure, but struck Shontae Bell in the 

stomach, Y'isha Rosbrough in the arm, and Michael Newman in the 

leg. All three survived, and McClure and two other witnesses to 

the event identified Petitioner as the shooter. 

Police arrested Petitioner on August 11, 2002 and, eight 

days later, the Multnomah County Grand Jury indicted him on four 

counts of Attempted Murder, three counts of Assault in the 

Second Degree, one count of Attempted Assault in the First 

Degree, and eight counts of Unlawful Use of a Weapon with a 

Firearm. Respondent's Exhibit 102. The trial court appointed 

Richard Vogt to represent Petitioner. 

Petitioner began to construct a false alibi, prompting him 

to recruit witnesses to provide perjured testimony. He contacted 

Quadree Bradley, Jennifer Napolitano, and Brandon Jenkins to 

help him establish a misleading version of events. Bradley and 

Napolitano agreed to help him in this endeavor. 

2 - OPINION AND ORDER 
Petitioner next proceeded to secure different lawyer. In 

November 2002, he relieved Vogt of further representation, and 

hired Randy Richardson for a flat fee of $20,000. Represented by 

new counsel, Petitioner's case proceeded to a settlement 

conference on January 30, 2003 with Multnomah County Circuit 

Court Judge Julie Frantz. During that settlement conference, the 

prosecutor offered to settle the case if Petitioner would plead 

guilty to various charges that resulted in a sentence of 140 

months, but the case did not settle. 

Petitioner proceeded to a jury trial where he claimed that 

he was not at the Quest nightclub at the time of the shooting, 

and that the State's eyewitnesses were mistaken in their 

respective identifications. The defense called Bradley and 

Napolitano, both of whom testified that Petitioner was at the 

Lush nightclub at the time of the shooting at Quest and, 

contrary to the State's evidence, Petitioner was wearing blue 

jeans, a white shirt, a white visor, and white shoes. 1 

In what became a turning point at trial, Napolitano 

testified that she had seen a friend of hers, Samoyya Morrison, 

on the night of the shooting outside the Quest nightclub, and 

spoken to her for a period of 10-15 minutes. Napolitano denied 

having regular contact with Morrison before that evening, and 

further denied that she had spoken with Morrison since the night 

of the shooting. The State called Morrison as a rebuttal witness 

who testified that, contrary to Napolitano's testimony, she had 

1 The State's eyewitnesses testified that the shooter had been wearing a 

light-colored shirt with dark stripes and black pants. Trial Transcript 

( 2 / 2 5 / 0 3 ) , pp . 2 4 9 , 3 5 5 - 5 6 . 

3 - OPINION AND ORDER 
been with her boyfriend at Moses Lake on the night of the 

shooting, nowhere near Quest, and had never seen Napolitano 

outside of the club. She also testified that she frequently 

spoke with Napolitano and had last seen her less than three 

weeks before the trial. 

The jury found Petitioner guilty of all charges. Sentencing 

was postponed, however, as the police investigated why 

Napolitano' s trial testimony was so contradictory to that of 

Morrison. Napolitano told officers she wanted to talk with 

Richardson, because he "told me to call him if anything like 

this happened." 2 Respondent's Exhibit 117, p. 2. She ultimately 

admitted to police that her testimony was not truthful. She 

claimed that after the shooting, Petitioner called her from jail 

and sent her letters telling her what to say, including a false 

description of clothing he was wearing the night of the 

shooting. Richardson told Napolitano to destroy the letters 

because they might incriminate Petitioner. 

According to Napolitano, she attended a meeting held by 

Richardson at which Bradley and Petitioner's girlfriend, Rashida 

Peterson, were present. Richardson went over the story they were 

supposed to relate and showed them the clothes they were to 

describe Petitioner as wearing on the night of the shooting. Id 

at 17-19. Napolitano later told Richardson that she was hesitant 

to testify falsely on Petitioner's behalf but was also fearful 

of retaliation if she did not lie because Petitioner's family 

2 Evidence would show 152 telephone calls between Richardson and Napolitano. 

CR 20-5, p. 65. 

4 - OPINION AND ORDER 
knew where she lived. Richardson encouraged Napolitano to adhere 

to the fabricated story and even began to see her socially, 

resulting in a brief sexual relationship. When Napolitano 

subsequently called Richardson to advise him that she did not 

intend to testify falsely on Petitioner's behalf, Richardson 

became agitated. He showed up at Napolitano's apartment fifteen 

minutes later, and offered her money if she would testify 

consistently with the story he and Lambert had established. 

Napolitano accepted $300 from Richardson in exchange for her 

false testimony. 

According to Napolitano, in the aftermath of her testimony, 

Richardson had been particularly concerned about the portion of 

her testimony involving Samoyya Morrison because she was not 

part of the false alibi. Richardson instructed Napolitano to get 

in touch with Morrison and advise her not to answer her door so 

that the State would be unable to serve her with a subpoena to 

compel her appearance at trial. Morrison initially ignored 

authorities when they showed up at her home and knocked on her 

door, but later answered the door and was served with a 

subpoena. As noted above, Morrison appeared at trial and cast 

significant doubt on Petitioner's alibi. 

Authorities also interviewed Bradley after the trial, who 

also admitted to providing false testimony provided to him by 

Petitioner in the form of a letter sent through Rashida 

Peterson. Peterson was able to confirm Bradley's statements. 

Police also interviewed Brandon Jenkins, whose car had been 

hit by a bullet during the shooting. He claimed Petitioner had 

5 - OPINION AND ORDER 
sent a letter to him, also by way of a third party, asking that 

he identify someone else as the shooter. Jenkins did not do as 

Petitioner asked, and instead kept the letter and provided it to 

the authorities during the post-trial investigation. 

Petitioner appeared for sentencing on April 17, 2003, but 

the trial judge informed the parties that sentencing would not 

take place. Richardson was not present in the courtroom at the 

beginning of the hearing because he was being served elsewhere 

in the courthouse with search warrants for his home, office, and 

person related to Petitioner's case. As a result, the State 

moved to disqualify Richardson as counsel because the new 

criminal investigation put Richardson and Petitioner in the 

conflicted position of co-conspirators. The prosecutor felt that 

Petitioner needed to be represented by independent counsel, but 

Richardson disagreed. He advised the trial court that Petitioner 

could waive any conflict that might exist, and that it was 

Petitioner's option whether to proceed with Richardson as 

counsel. 

Over the State's objection, the trial court asked 

Petitioner if he wished to have new counsel appointed to which 

Petitioner replied, "No, I'm comfortable with Mr. Richardson." 

CR 20-4, p. 241. The trial judge appointed independent counsel 

to consult with Petitioner, but allowed Richardson to remain as 

counsel of record until she could more thoroughly study the 

applicable rules. Four days later, however, the trial judge 

removed Richardson from the case and ultimately appointed Lisa 

Ludwig to represent Petitioner at sentencing. 

6 - OPINION AND ORDER 
On December 12, 2003, the Multnomah County Grand Jury 

indicted Richardson and Petitioner with various charges 

pertaining to bribery, perjury, and witness tampering. While 

those charges were pending, sentencing regarding the Attempted 

Murder took place on April 4, 2005. The judge, when imposing 

sentence on the charges arising from the shooting at Quest, 

expressly stated that she would not consider Petitioner's 

misconduct with respect to the falsified evidence. She did, 

however, state: 

I find that the testimony and the exhibits 

regarding defendant's role and conduct in 

soliciting false testimony is reliable. This 

is clearly reprehensible behavior that 

cannot be tolerated by the Court, but the 

justice system, or by the public. It demeans 

our entire system. And it shows incredible 

disrespect and arrogance, and perhaps 

stupidity, as well, on the part of the 

defendant, and anyone involved with him, in 

attempting to subvert justice. 

Sentencing Transcript (4/5/2005), p. 181. She then proceeded to 

sentence Petitioner to a sentence totaling 250 months. 

Lisa Ludwig filed a Motion for New Trial shortly after 

Petitioner's sentencing, claiming that a new trial was in order 

based upon: (1) "irregularity in the proceedings,n and (2) 

insufficiency of the evidence. Ludwig argued that not only was 

Richardson's conduct reprehensible, but he failed to convey the 

State's plea offer to Petitioner such that he was the victim of 

ineffective assistance of counsel. Respondent's Exhibit 166. The 

trial court did not rule on the Motion which was deemed denied 

7 - OPINION AND ORDER 
55 days after its filing under Oregon's procedural rules. See 

ORCP 64 ( F) ( 1) . 

In May 2005, Petitioner entered a guilty plea to Conspiracy 

to Bribe a Witness, Bribing a Witness, 

Commit Perjury, Solicitation to Commit 

Criminal Conspiracy to 

Perjury, Perjury and 

Tampering with Witnesses. As a result, the court sentenced him 

to 22 months in prison, 18 of which it imposed consecutively to 

the sentence stemming from the Attempted Murder trial. 

Richardson proceeded to trial where he was acquitted of all 

charges. 

Petitioner took a direct appeal in which he alleged that 

certain treatment records of his victims should not have been 

admitted during his trial. The Oregon Court of Appeals affirmed 

the trial court's decision without opinion, and the Oregon 

Supreme Court denied review. State v. Lambert, 228 Or. App. 756, 

210 P.3d 945 (2009), rev. denied, 347 Or. 533, 225 P.3d 43 

(2010). 

Petitioner next filed for post-conviction relief in 

Umatilla County where, relevant to this case, he alleged that 

Richardson failed to relay the State's plea offer to him. The 

PCR Court denied relief, finding that Petitioner was not 

credible, and that Judge Frantz communicated the State's plea 

of fer directly to him during 

Respondent's Exhibit 159, p. 

decision, but the Oregon Court 

the settlement conference. 

2. Petitioner appealed this 

of Appeals affirmed the lower 

court's decision without issuing a written opinion, 

Oregon Supreme Court denied review. Lambert v. Coursey, 

and the 

2 65 Or. 

8 - OPINION AND ORDER 
App. 759, 337 P.3d 204 (2014), rev. denied, 356 Or. 689, 344 

P.3d 1111 (2015). 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case 

on May 18, 2015, and amended his Petition with the assistance of 

appointed counsel on April 22, 2016 to state the following 

claims: 

1. Richardson rendered ineffective 

failed to inform Petitioner of the 

plea bargain, and failed to counsel 

possibility of resolution of his 

negotiations; 

assistance when he 

State's offer of a 

Petitioner about the 

case through plea 

2. Petitioner was deprived of his right to conflict-free 

representation where Richardson was motivated by his own 

personal and financial self-interest; 

3. Petitioner was denied the effective assistance of 

counsel when he was represented by a trial attorney who 

had an unwaivable conflict of interest, and was motivated 

solely by his own personal and financial self-interest; 

and 

4. Appellate counsel was ineffective for failing to raise 

on appeal the denial of Petitioner's Motion for New 

Trial. 

Amended Petition (#27). 

Respondent asks the Court to deny relief on these claims 

because: ( 1) the PCR Court reasonably denied relief on Ground 

One; (2) Grounds Two and Three are procedurally defaulted, 

Petitioner is unable to excuse his default, and the claims 

nevertheless lack merit; and (3) Petitioner fails to sustain is 

burden of proof as to Ground Four. 

Ill 

9 - OPINION AND ORDER 
DISCUSSION 

I. Standard of Review 

An application for a writ of habeas corpus shall not be 

granted unless adjudication of the claim in state court resulted 

in a decision that was: (1) "contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States;" or 

(2) "based on an unreasonable determination of the facts in 

light of the evidence presented in the State court proceeding." 

28 U.S.C. § 2254(d). A state court 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 of 

§ 2254 ( d) ( 1) , a federal habeas court may grant relief "if the 

state court identifies the correct governing 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. 

10 - OPINION AND ORDER 
Twenty-eight U.S.C. § 2254 (d) "preserves authority to issue the 

writ in cases where there is no possibility fairminded jurists 

could disagree that the state court's decision conflicts with 

[the Supreme] Court's precedents. It goes no farther." 

Harrington v. Richter, 562 U.S. 86, 102 (2011). 

Twenty-eight U.S. C. § 2254 ( d) ( 2) also allows a petitioner 

to "challenge the substance of the state court's findings and 

attempt to show that those findings were not supported by 

substantial evidence in the state court record." Hibbler v. 

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas 

court cannot overturn a state court decision on factual grounds 

"unless objectively unreasonable in light of the evidence 

presented in the state-court proceeding." Miller-El v. Cockrell, 

537 U.S. 322, 340 (2003). This is a "'daunting standard-one that 

will be satisfied in relatively few cases,' especially because 

we must be 'particularly deferential to our state-court 

colleagues.'" 

2014) (quoting 

2004)). 

Hernandez v. Holland, 750 F.3d 843, 857 

Taylor v. Maddox, 366 F. 3d 992, 1000 

( 9th Cir. 

( 9th Cir. 

II . Ground One 

Petitioner first claims that Richardson was 

constitutionally ineffective when he failed to convey the 

State's plea offer, or otherwise counsel him on plea 

negotiations. As an initial matter, the Court notes that 

11 - OPINION AND ORDER 
Petitioner attempts to rely on a variety of new evidence to 

support his claim which he never presented to the PCR Court. 

Such evidence is not properly considered here. 28 u.s.c. 

§ 2254 (d) (1); Cullen v. Pinholster, 563 U.S. 170, 182-83 (2011). 

Accordingly, this Court considers only the evidence that was 

properly at issue in Petitioner's PCR proceeding. 

Because no Supreme Court precedent is directly on point 

that corresponds to the facts of this case, the court uses the 

general two-part test established by the Supreme Court to 

determine whether Petitioner received ineffective assistance of 

counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). 

First, Petitioner must show that his counsel's performance fell 

below an objective standard of reasonableness. Strickland v. 

Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties 

in evaluating counsel's performance, courts must indulge a 

strong presumption that the conduct falls within the "wide range 

of reasonable professional assistance." Id at 689. 

Second, Petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

whether Petitioner can show "that there is a reasonable 

probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id at 694. 

A reasonable probability is one which is sufficient to undermine 

confidence in the outcome of the trial. Id at 696. When 

12 - OPINION AND ORDER 
Strickland's general standard is combined with the standard of 

review governing 28 U.S.C. § 2254 habeas corpus cases, the 

result is a "doubly deferential judicial review." Mirzayance, 

556 U.S. at 122. 

During the PCR proceeding, Petitioner submitted two pieces 

of evidence relevant to his Ground One claim. First, Petitioner 

offered his own Affidavit previously filed in support of his 

Motion for New Trial in which he claimed that "Mr. Richardson 

never asked [during the settlement conference] or at any other 

time if I was willing to make a plea bargain, nor was I told 

what the sentence would be if I was interested in a plea 

bargain." Respondent's Exhibit 166, p. 14. In addition, he 

offered Lisa Ludwig's Affidavit which he had also used to 

support his Motion for New Trial. In her Affidavit, Ludwig 

stated that her review of Richardson's file failed to show any 

indication that he conveyed the State's plea offer to 

Petitioner. Id at 11. 

The State countered by offering the Affidavit of the 

prosecutor in which she stated that, "based upon my experience 

with these types of settlement hearings, it seems highly 

improbable that petitioner would have been unaware of the 

possibility of settlement and its terms." Respondent's Exhibit 

120, pp. 1-2. Consistent with this Affidavit, the State also 

offered a letter from Judge Frantz wherein she stated that 

13 - OPINION AND ORDER 
although she did not recall the particulars of Petitioner's 

settlement conference, she could outline her standard approach 

to settling criminal cases that she had "followed for two 

decades." Respondent's Exhibit 174, p. 1. Part of that approach 

involved Judge Frantz reviewing with a defendant the possible 

sentence if convicted at trial, and then proceeding to "discuss 

the plea proposal that is being contemplated, so the 

defendant can weigh the risk of going to trial versus the 

certainty of a plea proposal if approved by the senior DDA' s." 

Id at 3. 

Judge Frantz did state, however, that "[v]ery, very seldom, 

but perhaps a couple of times in cases which I do not 

specifically recall," settlement conferences ended abruptly 

before she had an opportunity to speak directly with a 

defendant. Id at 4. Given the remainder of the record, however, 

the remote instances mentioned by Judge Frantz would not have 

included Petitioner. Specifically, although he stated in his 

Affidavit seeking a new trial that Judge Frantz never conveyed 

the particulars of the State's plea offer to him, he did agree 

that Judge Frantz had met personally with him and told him what 

his maximum sentence would be if convicted at trial, and that a 

plea deal would reduce his sentence. Respondent's Exhibit 166, 

p. 14. 

14 - OPINION AND ORDER 
The PCR Court rejected Petitioner's Ground One claim, 

finding that Petitioner "refused to accept any plea offer." 

Respondent's Exhibit 159, p. 2. The PCR Court also made the 

following findings: 

3. Based on [Petitioner's] behavior in 

this case and his subsequent convictions, it 

is clear that he has no respect for the 

truth and is totally without credibility. 

* * * * * 

7. This court also does not believe that 

during the course of the judicial settlement 

conferment, the judge didn't explain any 

plea off er or the process of an offer to 

[Petitioner] . [Petitioner] raised this issue 

in [his] motion for a new trial and the 

motion was denied and could have been 

appealed. 

8. R. Richardson's trial performance 

(disregarding the use of perjury for a 

moment) was more than adequate. 

9. Lambert comes to this court as a coconspirator of Richardson. Before retaining 

Richardson, Lambert had already arranged for 

three witnesses to lie. Richardson clearly 

had an ethical and legal obligation to 

refuse to use the defense, but Lambert 

didn't care about any of that. He cannot now 

complain about the course of conduct he 

initiated, paid for and participated in. 

There is no evidence or even claim that he 

would have abandoned the defense or that he 

regrets the conspiracy--only that he regrets 

losing. 

Respondent's Exhibit 159, pp. 2-3. 

Petitioner states that he was not with Richardson at the 

time that the State made its plea offer, and the evidence showed 

15 - OPINION AND ORDER 
that nothing in Richardson's file notes indicated that 

Richardson communicated the plea offer to his client. Petitioner 

argues that there was no evidence in the record to support the 

PCR Court's factual determination that Judge Frantz actually 

communicated the State's plea offer to him, 3 thus he believes the 

PCR Court's factual finding on this point amounts to mere 

speculation. 

Petitioner presented the plea offer issue to the PCR Court 

for a determination, thus placing that court in the position of 

having to render a decision based upon a rather scant record of 

something that might, or might not have, been orally conveyed. 

The PCR Court found that Petitioner was completely lacking 

credibility, thereby negating Petitioner's Affidavit. It was 

therefore left only with the fact that Ludgwig was unable to 

find any specific notation in Richardson's files that he 

communicated the plea of fer to Petitioner. The absence of that 

information did establish that Richardson never discussed the 

plea of fer with Petitioner, nor did it not speak directly to 

whether Judge Frantz conveyed the plea offer to Petitioner when 

3 Petitioner also asserts that the PCR Court erroneously stated that 

Petitioner could have appealed the issue on direct review because the issue 

pertained to ineffective assistance of counsel, something that can only be 

raised during a PCR proceeding in Oregon's courts. It is not appropriate for 

this Court to second-guess the PCR Court's ruling on this state-law 

procedural issue. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e 

reemphasize that it is not the province of a federal habeas court to 

reexamine state-court determinations on state-law questions."). In any event, 

the resolution of Petitioner's Ground One claim does not depend on whether 

the PCR Court correctly interpreted Oregon law concerning the appealability 

of the denial of Petitioner's Motion for New Trial. 

16 - OPINION AND ORDER 
she met with him personally. Indeed, given Judge Frantz's letter 

and the prosecutor's Affidavit, there was evidence in the record 

from which the PCR Court could make a reasonable factual finding 

that Judge Frantz conveyed the State's plea offer of 140 months 

directly to Petitioner. Certainly, Petitioner has not presented 

clear and convincing evidence to the contrary to overcome this 

factual finding. See 28 U.S.C. § 2254 (e) (1). Consequently, even 

if Richardson failed to communicate the plea deal to his client, 

such an omission did not result in prejudice to Petitioner. 

Petitioner fails to establish prejudice for another reason, 

as well. Assuming he could overcome the PCR Court's factual 

findings regarding his lack of credibility and Judge Frantz' s 

communication of the plea offer, he has not overcome the finding 

that he was not prepared to accept a plea deal (let alone a 140-

month plea deal) . Even after the jury had convicted him (but 

prior to sentencing), the State offered Petitioner a 120-month 

sentence but only if he was willing to off er his cooperation 

regarding the events surrounding the Attempted Murder. 

Respondent's Exhibits 175 & 176, p. 2. Petitioner, however, 

flatly refused to offer his cooperation as to the incident. Id. 

Respondent's Exhibit 176, p. 2. Even in his Motion for New Trial 

predicated upon the alleged failure to communicate a plea offer, 

Petitioner stated only that he would have "considered" the 

State's plea offer had it been conveyed, not that he would have 

17 - OPINION AND ORDER 
accepted it. Respondent's Exhibit 166, p. 14. For all of these 

reasons, the PCR Court's denial of this claim is neither 

contrary to, nor an unreasonable application of clearly 

established federal law. The decision also did not involve an 

unreasonable determination of the facts in light of the evidence 

presented. 

III. Grounds Two and Three 

As Grounds Two and Three, Petitioner argues that he was 

denied his right to conflict-free representation. The Court must 

first resolve whether Petitioner can overcome his failure to 

adequately preserve Grounds Two and Three in the state courts 

through a showing of cause and prejudice. In doing so, the 

parties agree that the Court is not limited to the record 

developed in the PCR proceeding, thus the Court also considers 

all of Petitioner's Exhibits, most of which are newly developed. 

A. Exhaustion and Martinez 

A petitioner seeking habeas relief must exhaust his claims 

by fairly presenting them to the state's highest court, either 

through a direct appeal or collateral proceedings, before a 

federal court will consider the merits of habeas corpus claims 

pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 

( 1982) . A petitioner is deemed to have "procedurally defaulted" 

his claim if he failed to comply with a state procedural rule, 

or failed to raise the claim at the state level at all. Edwards 

18 - OPINION AND ORDER 
v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 

U.S. 722, 750 (1991). 

Petitioner concedes that Grounds Two and Three are 

procedurally defaulted because he failed to fairly present them 

to Oregon's state courts during his PCR proceedings. He argues, 

however, that his PCR attorney was ineffective for not raising 

the claims such that he can excuse his default by way of a 

showing of cause and prejudice pursuant to Martinez v. Ryan, 566 

U.S. 1, 4 (2012). 

1 . Standards 

Traditionally, the performance of PCR counsel could not be 

used to establish cause and prejudice to excuse a procedural 

default. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991) (only 

the constitutionally ineffective assistance of counsel 

constitutes cause); Pennsylvania v. Finley, 481 U.S. 551, 556 

( 1987) (there is no constitutional right to counsel in a PCR 

proceeding). However, in Martinez v. Ryan, 566 U.S. 1, 4 (2012), 

the Supreme Court found "it . necessary to modify the 

unqualified statement in Coleman that an attorney's ignorance or 

inadvertence in a postconviction proceeding does not qualify as 

cause to excuse a procedural default." Id at 8. It concluded, 

"Inadequate assistance of counsel at initial-review collateral 

proceedings may establish cause for a prisoner's procedural 

default of a claim of ineffective assistance at trial." Id. 

19 - OPINION AND ORDER 
In order to establish cause to excuse his default pursuant 

to Martinez, Petitioner must show that his underlying claim of 

ineffective assistance of trial counsel is substantial insofar 

as it has "some merit." He must also demonstrate that his PCR 

attorney was ineffective under the standards of Strickland v. 

Washington, 4 66 U.S. 668 ( 1984) for failing to raise the claim. 

"[T]o fulfill this requirement, a petitioner must not only show 

that PCR counsel performed deficiently, but also that this 

prejudiced petitioner, i.e., that there was a reasonable 

probability that, absent the deficient performance, the result 

of the post-conviction proceedings would have been different." 

Runningeagle v. Ryan, 825 F.3d 970, 982 ( 9th Cir. 2017) 

(quotation omitted). Such a finding, of course, would 

necessarily require the Court to conclude that there is a 

reasonable probability that the trial-level ineffective 

assistance claim would have succeeded had it been raised. Id. 

2. Analysis 

To evaluate Petitioner's cause and prejudice argument, the 

Court looks to the viability of the attorney conflict claims 

raised in Grounds Two and Three of the Amended Petition. The 

Sixth Amendment carries with it a right to conflict-free 

representation. Wheat v. United States, 486 U.S. 153 (1988). In 

order to establish a Sixth Amendment violation, a petitioner who 

raised no objection at trial must show that "an actual conflict 

20 - OPINION AND ORDER 
of interest adversely affected his lawyer's performance." Cuyler 

v. Sullivan, 446 U.S. 335, 348 (1980). "[A] defendant who shows 

that a conflict of interest actually affected the adequacy of 

his representation need not demonstrate prejudice in order to 

obtain relief." Id at 349-50. 

Petitioner contends that Richardson held a grudge against 

his former employer, the Multnomah County District Attorney's 

Office, from which he had resigned while suspended pending an 

investigation into questionable practices and tactics. 

Petitioner's Exhibit 62. Petitioner asserts that Richardson, who 

was disbarred by the time PCR counsel filed his Amended 

Petition, was absolutely fixated on besting his former employer 

at trial, leaving him motivated solely by his own self-interest 

and causing him to hide the State's plea offer from Petitioner. 

Petitioner reasons that where an actual, unwaivable conflict of 

interest existed between Richardson and him, PCR counsel was 

obliged to present the issue to the PCR Court. 

The first problem with Petitioner's argument is that 

Sullivan's presumed prejudice in the presence of an actual 

conflict between an attorney and his client is limited to 

instances involving multiple representation, a situation not 

present in Petitioner's case. In Mickens v. Taylor, 535 U.S. 

162, 168 (2002), the Supreme Court determined that Sullivan's 

presumption of prejudice "is justified because joint 

21 - OPINION AND ORDER 
representation of conflicting interests is inherently suspect, 

and because counsel's conflicting obligation is to multiple 

defendants . . make it difficult to measure the precise harm 

arising from counsel's errors." 535 U.S. at 168. 

The Ninth Circuit recognized that "[t]he Mickens Court 

emphasized that Sullivan required a showing that counsel 

actively represented conflicting interests, which did not 

support the expansive application to other sorts of conflicts or 

ethical violations, such as conflicts between a client's welfare 

and counsel's financial interests." United States v. Wal ter-Eze, 

869 F.3d 891 (2017) (internal quotation omitted). It further 

stated that the "Mickens Court specifically and explicitly 

concluded that Sullivan was limited to joint representation" and 

that anything else amounted to an open question. Earp v. 

Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005). 

Similarly, Oregon law has not extended Sullivan beyond the 

scope of joint representation. See Datta v. Keeney, 90 Or. App. 

327, 330 (1988); Clark v. Oregon, 267 Or. App. 544, 550 (2014). 

Al though Petitioner directs this Court to cases that predate 

Mickens, do not directly discuss Sullivan, or are from judicial 

districts that are not binding on this court or Oregon's state 

courts, they are not persuasive to show that this area of the 

law was so well established in Plaintiff's favor that PCR 

counsel was obligated to raise a Sullivan claim in state court. 

22 - OPINION AND ORDER 
See Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 

2004) ("Strickland does not mandate prescience, only objectively 

reasonable advice under prevailing professional norms."). 

Putting aside the limited scope of Sullivan, Petitioner's 

claim that Richardson was motivated by a blinding desire to 

prevail against his former employer at trial no matter the cost 

is belied by the record. Respondent identifies seven cases, 

including three involving serious felonies, that Richardson 

settled with the Multnomah County District Attorney's Office 

prior to Petitioner's trial. Respondent's Exhibit 178. These 

dispositions suggest Petitioner's decision to forego a plea was 

not based upon any obstinate refusal to enter a guilty plea on 

Richardson's part. While Petitioner correctly asserts that the 

record does not contain all of the particulars of these cases, 

the fact that Richardson settled all of them with the Multnomah 

County District Attorney's Office belies Petitioner's assertion 

that Richardson was motivated only by his own desire to prevail 

in cases involving his former employer by refusing to settle, 

taking the cases to trial irrespective of his client's interest, 

and using any means necessary to prevail. 

Even if Petitioner could prove that Richardson's own 

personal and overriding interest was to proceed to trial without 

advising Petitioner of the State's 140-month plea offer, this 

approach does not appear to conflict with Petitioner's own 

23 - OPINION AND ORDER 
desires. As the PCR Court found in this case, Petitioner "had 

already decided his defense and had arranged the witnesses 11 by 

the time he retained Richardson, "Richardson knew that the 

[Petitioner's] witnesses were going to lie at [Petitioner's] 

request, 11 Petitioner "clearly never attempted to change the plan 

he and his attorney had agreed to[,] 11 and Petitioner never 

indicated a willingness to admit his participation in his 

crimes. Respondent's Exhibit 159, p. 2. Where Petitioner 

fabricated his own alibi before he ever retained Richardson, 

Richardson's purported desire to prevail at trial by any means 

necessary was consistent with Petitioner's own approach to the 

case. 

There is further evidence of Petitioner's unwillingness to 

accept a plea offer from the State. After he was convicted at 

trial, Petitioner: (1) rebuffed the State's 120-month plea offer 

because he was unwilling to cooperate with the its investigation 

pertaining to the Quest shooting; and (2) expressed that he 

would not be willing to settle for any sentence exceeding 90 

months for all convictions, including those associated with 

witness tampering. Respondent's Exhibits 175 & 176. Given that 

Petitioner was unwilling to settle for a 120-month sentence in 

the wake of his conviction, he cannot establish that he would 

have accepted a 140-month offer prior to trial that did not 

include a resolution of the witness tampering charges. 

24 - OPINION AND ORDER 
PCR counsel had a variety of strategically sound reasons 

not to raise an ineffective assistance of trial counsel claim 

predicated on a conflict of interest between Petitioner and 

Richardson. As a result, PCR counsel's performance did not fall 

below an objective standard of reasonableness, thus Petitioner 

fails to establish cause and prejudice to excuse his default. 

IV. Ground Four 

Finally, Petitioner alleges that appellate counsel was 

ineffective for failing to appeal the denial of Petitioner's 

Motion for New Trial. Petitioner has not argued this claim in 

his briefing and, therefore, has not sustained his burden of 

proof. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) 

(Petitioner bears the burden of proving his claims) . Even if 

Petitioner had briefed the merits of this claim, the court has 

examined it based upon the existing record and determined that 

it does not entitle him to relief. 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

25 - OPINION AND ORDER 
CONCLUSION 

For the reasons identified above, the Amended Petition for 

Writ of Habeas Corpus (#27) is denied. The Court does, however, 

issue a Certificate of Appealabili ty as to Petitioner's argued 

claims identified as Grounds One, Two, and Three of his Amended 

Petition. 

IT IS SO ORDERED. 

DATED this 1 r't--- day of November, 2018. 

Mic ael H. Simon 

United States District Judge 

26 - OPINION AND ORDER