IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

FILEMON ARREOLA, 

Petitioner, 

v. 

JEFF PREMO, 

Supt. Oregon State Penitentiary, 

Respondent. 

MOSMAN,J., 

No. 6:15-cv-01013-YY 

OPINION AND ORDER 

On February 12, 2019, Magistrate Judge Youlee Yim You issued her Findings and 

Recommendation (F&R) [73], recommending that I deny the Petition for Writ of Habeas Corpus 

[2] and enter a judgment of dismissal. Petitioner filed Objections to the F&R [75] and 

Respondent filed a Response [76]. For the reasons below, I adopt Judge You's F&R, DENY the 

Petition for Writ of Habeas Corpus [2], and DENY a certificate of appealability. 

DISCUSSION 

The magistrate judge makes only recommendations to the court, to which any pa1iy may 

file written objections. The comi is not bound by the recommendations of the magistrate judge 

but retains responsibility for making the final determination. The court is generally required to 

make a de nova determination regarding those portions of the rep01i or specified :findings or 

recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the 

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court is not required to review, de novo or under any other standard, the factual or legal 

conclusions of the magistrate judge as to those portions of the F&R to which no objections are 

addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 

F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to 

review the F&R depends on whether or not objections have been filed, in either case, I am free to 

accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C). 

Petitioner was convicted on criminal charges and sentenced by a trial comi in Marion 

County Circuit Court. Between the verdict and sentencing, Petitioner retained a new attorney. 

The trial comi found that the State had met its burden of establishing seven of the eight sentence 

enhancement factors it moved for. The State asked the trial comi to apply the seven 

enhancement factors to three of Petitioner's convictions. Petitioner's attorney argued that 

Petitioner was remorseful and had no prior record of criminal activity, urging the trial comi to 

impose a sentence that would allow Petitioner to seek treatment or counseling. The trial comi 

declined. In imposing the sentence departures, the trial comi stated that it felt each of the factors 

would suffice for a depaiiure, together or separately, so he did not need to specify which 

depaiiure went with which offense. Petitioner appealed his conviction on other issues and lost. 

Petitioner then filed for post-conviction relief (PCR) with the State. Petitioner alleged 

that his sentencing counsel was constitutionally ineffective for not arguing against the trial 

comi's application of upward departures. The PCR comi held an evidentiary hearing but 

ultimately rejected Petitioner's claims. The PCR comi admitted that sentencing counsel's 

presentation was minimal but held that Petitioner had not demonstrated constitutionally 

ineffective performance. Petitioner appealed the PCR comi' s ruling and was denied. Petitioner 

then filed the instant Petition for Writ of Habeas Corpus, arguing that his sentencing counsel 

2 - OPINION AND ORDER 
provided constitutionally ineffective assistance by failing to sufficiently argue against the 

imposition of sentence departures. 

Judge You gave deference to the PCR court's holding and conducted a de novo review of 

Petitioner's sentencing counsel's performance. In his briefing, Petitioner argued that the trial 

comi improperly relied upon four of the seven listed enhancement factors but did not dispute the 

remaining three factors. At sentencing, the trial comi declared each of the seven factors 

sufficient grounds to depart from the mandatory sentence for any of Petitioner's convictions, not 

just the four discussed by Petitioner. Judge You therefore found that Petitioner failed to 

demonstrate that the PCR comi' s holding was unreasonable or that Petitioner had been 

prejudiced by his sentencing counsel's representation. Petitioner objected to Judge You's 

holding that the PCR court is entitled to deference and that Petitioner was not prejudiced by his 

counsel's performance. 

I agree with Judge You's finding that Petitioner has failed to demonstrate that sentencing 

counsel's performance caused him prejudice. To succeed on a claim of ineffective assistance, 

Petitioner must demonstrate that his counsel's performance fell below an objective standard of 

reasonableness and that this perfmmance prejudiced his defense. Strickland v. Washington, 466 

U.S. 668, 688 (1984). To show prejudice by ineffective assistance at sentencing, Petitioner 

"must show that but for his counsel's deficiency, there is a reasonable probability he would have 

received a different sentence." Porter v. }vfcCollum, 558 U.S. 30, 41 (2009). 

Judge You is cmTect in her analysis that because Petitioner has not contested three of the 

sentence enhancement factors found by the trial court, he has not demonstrated prejudice. 

Petitioner has not shown that had his counsel made the arguments he offers in his brief, there is a 

likelihood he would have received a different sentence because the trial court found that each 

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sentence enhancement could apply to each sentence departure. Because Petitioner has failed to 

contest at least three of the sentence enhancements that the trial court applied to the sentence 

departures, Petitioner cannot meet his burden of demonstrating prejudice under Strickland. I also 

agree with Judge You that petitioner has not made a substantial showing of the denial of a 

constitutional right, and I therefore deny a certificate of appealability. 

CONCLUSION 

For the reasons described above, I ADOPT the F&R [73]. The Petition for Writ of 

Habeas Corpus [2] is DENIED, a certificate of appealability is DENIED, and this action is 

DISMISSED. 

IT IS SO ORDERED. 

DATED this of March, 2019. 

Chief United 

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