1 – FINDINGS AND RECOMMENDATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JEREMIAH THOMASSON, 

 Case No. 3:14-cv-01340-SU 

 Petitioner, 

 FINDINGS AND RECOMMENDATION 

 v. 

 

DON PALMER and ELLEN ROSENBLUM, 

 

 Respondents. 

 Anthony D. Bornstein 

Assistant Federal Public Defender 

 101 S.W. Main Street, Suite 1700 

 Portland, Oregon 97204 

 Attorney for Petitioner 

 Ellen F. Rosenblum, Attorney General 

 Samuel A. Kubernick, Assistant Attorney General 

 Department of Justice 

 1162 Court Street NE 

 Salem, Oregon 97310 

 Attorneys for Respondent 

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SULLIVAN, Magistrate Judge. 

 Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his state-court 

convictions for Attempted Murder, Assault, Unlawful Use of a 

Weapon, and Menacing. For the reasons that follow, the Petition 

for Writ of Habeas Corpus (#1) should be denied. 

BACKGROUND

 On June 30, 2009, petitioner attended a public auction at 

the Woodburn Auction Yard. For reasons that are not entirely 

clear, he became “frustrated and impatient.” Respondent’s 

Exhibit 104, p. 4. He jumped up on the auctioneer’s stand, took 

out a box cutter, and slit the throat of the auctioneer, Charles 

Boyce, “completely from one side to the other.” Id. 

 Petitioner fled the scene with four bystanders in pursuit. 

The bystanders were able to corner him, but petitioner escaped 

when he threatened the men with his box cutter. Police located 

petitioner later that day and arrested him. Boyce received prompt 

medical attention and survived. 

 The Marion County Grand Jury indicted petitioner on one 

count of Attempted Murder, one count of Assault in the First 

Degree, five counts of Unlawful Use of a Weapon, and Four counts 

of Menacing. Respondent’s Exhibit 102. Petitioner’s first 

attorney, Larry Seto, notified the court of his intent to rely 

upon insanity and diminished capacity defenses, and requested 

that Dr. George R. Suckow conduct a psychiatric evaluation of 

petitioner. Dr. Suckow found as follows: 

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In my opinion Mr. Thomasson is able to aid 

and assist in his own defense and to 

participate in courtroom proceedings at this 

time. He has largely cleared his delusional 

disorder simply by enforced abstinence from 

amphetamines. He is not currently on any 

medication. 

It is my further opinion that at the time of 

the alleged offense, the attempted murder for 

which he is charged under the above [] 

mentioned case . . . which occurred on or 

about June 30, 2009, he was suffering from 

hallucinations which were induced by chronic 

amphetamine abuse and overdose. Due to that 

intoxication, he was not able to conform his 

conduct to the requirements of law. 

* * * * * 

In summary, this is a young man who has had a 

less-than-auspicious start in life who was 

over-utilizing methamphetamine on a habitual 

and regular basis and developed 

hallucinations because of that. He is unable 

to recall the circumstances of his alleged 

attack upon the victim in this case but he 

does admit to the use of amphetamines heavily 

prior to the event and he was still showing 

signs of amphetamine intoxication at the time 

he was jailed. 

Respondent’s Exhibit 119. 

 On December 29, 2004, attorney James Susee (hereinafter 

“counsel” or “trial counsel”) replaced Seto as counsel of record. 

The parties ultimately agreed upon a plea agreement whereby 

petitioner pleaded no contest to all counts in the Indictment, 

the State recommended a sentence of 360 months in prison as 

opposed to the 480-490 months it originally sought, and 

petitioner was permitted to argue for a lesser sentence. 

Respondent’s Exhibit 103. The trial court accepted the plea and 

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ultimately sentenced petitioner to 360 months in prison. 

Respondent’s Exhibits 104 & 105. 

 Petitioner did not take a direct appeal, but he did file for 

post-conviction relief (“PCR”) in Malheur County. Among 

petitioner’s claims of ineffective assistance of counsel, he 

alleged that trial counsel was ineffective for failing to ensure 

that his plea was knowing, voluntary, and intelligent. The PCR 

court denied relief on all of petitioner’s claims. Respondent’s 

Exhibits 133 & 134. The Oregon Court of Appeals affirmed the 

lower court’s decision without opinion, and the Oregon Supreme 

Court denied review. Thomasson v. Nooth, 261 Or. App. 477, 325 

P.3d 844, rev. denied, 355 Or 568, 329 P.3d 771 (2014). 

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

August 20, 2014 in which he raises four grounds for relief which 

contain a variety of sub-claims. Respondent asks the court to 

deny relief on the Petition because: (1) petitioner does not 

provide argument in support of many of his claims, and thus has 

not carried his burden of proof as to those claims; (2) most of 

petitioner’s claims are procedurally defaulted; and (3) the PCR 

court’s denial of relief as to the claims that are properly 

before this court was not objectively unreasonable. 

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 

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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. 

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) 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. 

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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.” 

Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting 

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). 

II. Unargued Claims 

 As previously noted, petitioner raises a variety of claims 

in his Petition. In his supporting memorandum, however, 

petitioner chooses to brief two claims of ineffective assistance 

of counsel: (1) whether counsel failed to ensure that the nocontest plea was knowing, intelligent, and voluntary; and 

(2) whether counsel was ineffective at sentencing when he failed 

to present mental health evidence and further failed to challenge 

a ground for enhancing petitioner’s sentence. 

 Petitioner does not argue the merits of his remaining 

claims, nor does he address any of respondent's arguments as to 

why relief on those claims should be denied. As such, petitioner 

has not carried his burden of proof with respect to the unargued 

claims. 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 the unargued claims, the 

court has examined them based upon the existing record and 

determined that they do not entitle him to relief.

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III. Exhaustion and Procedural Default 

 Petitioner’s claims involving sentencing allege that trial 

counsel was ineffective when he failed to raise petitioner’s 

mental health as a mitigating issue, and failed to object to the 

imposition of upward departure sentences on the Unlawful Use of a 

Weapon charges. Respondent asserts that petitioner failed to 

fairly present these claims because he did not pursue them during 

his PCR appeal, leaving them procedurally defaulted. See Rose v. 

Lundy, 455 U.S. 509, 519 (1982) (requiring habeas petitioners to 

fairly present their claims to their state’s highest court); 

Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (claims that may 

no longer be fairly presented are procedurally defaulted). 

Petitioner does not disagree with this characterization, but asks 

the court to excuse his procedural default because his PCR 

appellate attorney’s decision not to pursue the claim amounted to 

attorney abandonment. 

 In Maples v. Thomas, 132 S.Ct. 912, the Supreme Court held 

that abandonment by post-conviction counsel could provide cause 

to excuse a procedural default. Here, although petitioner’s PCR 

appellate attorney did not pursue a claim petitioner wishes to 

raise in this proceeding, he did file an appellate brief faulting 

trial counsel for not ensuring that petitioner’s no-contest plea 

was knowing, voluntary, and intelligent. Respondent’s Exhibit 

135. Appellate counsel’s decision to winnow down petitioner’s 

claims on appeal in no way constitutes the kind of abandonment 

contemplated by Maples, a case where the petitioner’s attorneys 

caused his default when they left their firm and left petitioner 

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“without any functioning attorney of record.” Id at 927. 

Accordingly, petitioner is unable to excuse his default. 

III. Ineffective Assistance of Counsel: Voluntariness of Plea 

 As his final claim, petitioner argues that trial counsel 

failed to ensure that his no-contest plea was knowing, voluntary, 

and intelligent. Specifically, he claims that counsel failed to 

properly advise him of the potential benefits of raising a lack 

of intent defense supported by Dr. Suckow’s psychiatric 

evaluation. 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 the 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. 

In proving prejudice, a petitioner who has pleaded guilty or no 

contest to an offense must demonstrate that there is a reasonable 

probability that, but for counsel's errors, he would not have 

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entered such a plea and would have insisted on going to trial. 

Hill v. Lockhart, 474 U.S. 52, 59 (1985). When 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 petitioner’s PCR trial, the State introduced trial 

counsel’s Affidavit which reads, in relevant part, as follows: 

2. Mr. Thomasson’s allegation that I failed 

to ensure that Mr. Thomasson’s plea was 

knowingly, voluntarily and intelligently made 

is incorrect. The state had 26-30 witnesses 

for their side, while I had relatively few 

witnesses. I also had a lot of difficulty 

dealing with my client. After reviewing the 

state’s discovery, the police reports, and 

discussing the case with my client, I told 

Mr. Thomasson and his mother that the only 

potential defense we had was a mental disease 

or defect defense. But they were dead[]set 

against me raising a defense of mental 

disease or defect of any kind, including one 

involving methamphetamines-induced psychosis. 

Mr. Thomasson was certainly not an easy 

client to deal with and frequently got 

himself in trouble at the Marion County Jail 

during the pendency of his case. 

* * * * * 

4. Dr. Suckow’s evaluation said 

[petitioner] could aid and assist, however 

his evaluation indicated the defendant had a 

methamphetamine-induced psychosis. It would 

not be a complete defense, but it helped 

rebut intent. In my professional opinion and 

in my experience in practicing in Marion 

County, I don’t believe Dr. Suckow’s 

evaluation would have affected plea 

negotiations, although it might have affected 

the trial outcome. 

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* * * * * 

9. Mr. Thomasson asserts that I failed to 

adequately present Mr. Thomasson’s mental 

health defense. But that runs contrary to 

what happened when I represented him. As 

I’ve explained above, Mr. Thomasson and his 

mother were adamantly opposed to presenting a 

mental health defense. Mr. Thomasson 

understood that by accepting the state’s plea 

offer he would waive his right to present any 

defense, including a mental health defense, 

at trial. Even after sentencing, Mr. 

Thomasson’s mother expressed an adamant 

refusal to explore the mental disease or 

defect defense in a post-conviction action. 

Respondent’s Exhibit 131, pp. 1-4. 

 The PCR court found as follows: 

There were no factual defenses to this case 

based on the number of witnesses, the 

physical evidence that was found. The only 

defense was the use of methamphetamine. Two 

judges told the attorney (inaudible) that 

defense had never worked in, I believe it was 

Marion County. 

* * * * * 

The DA would have recommended [a greater 

sentence] had the case gone to trial, so 

there was certainly a benefit to Mr. 

Thomasson at least doing anything he could do 

to shorten the sentence. It’s not a great 

deal, but it’s better than going to trial and 

getting the sentence that was available then. 

The sentence is not excessive based on the 

facts of this case the Petitioner has a 

history of violence. The Petitioner and his 

mother were adamant that the attorney could 

not use the guilty except for insanity 

defense. The plea was knowing, voluntary and 

intelligent. 

Respondent’s Exhibit 133, pp. 13-14. 

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 Petitioner asserts that the PCR court’s decision is flawed 

for a variety of reasons. First, it appears petitioner’s mother 

was influential in the decision-making process pertaining to a 

mental defense. He contends that he, not his mother, should be 

responsible for the decision to proceed to trial and counsel 

should not have thwarted his ability to raise such a defense by 

allowing his mother’s opinion to sway his advice. 

 In addition, he asserts that the PCR court’s decision speaks 

in terms of an insanity defense, when his claim is that counsel 

should have informed him as to a partial responsibility defense. 

On this point, he claims that there is no evidence in the record 

that counsel explained a partial responsibility defense to 

petitioner, or that the two judges who advised counsel that a 

mental defense would not work in Marion County were speaking 

about a partial responsibility defense as opposed to an insanity 

defense. He also contends that the statements by these judges 

did not take into account Dr. Suckow’s supportive psychiatric 

evaluation, or that lack of intent due to drug-induced psychosis 

did not carry the same stigma or legal consequences associated 

with an insanity defense. 

 Moreover, petitioner asserts that no one ever explained how 

the State could have obtained a 480-month sentence had he 

proceeded to trial and lost, and that if that figure was based 

upon consecutive maximum upward departures, that result was 

highly unlikely where he suffered from such mitigating factors as 

PTSD, amphetamine-induced psychosis, and hallucinations at the 

time of the event. He faults the PCR court for simply accepting 

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that petitioner faced the possibility of a 480-month sentence had 

he proceeded to trial and presented an unsuccessful defense. 

 The State points out that the arguments petitioner now makes 

in this proceeding through appointed counsel are different than 

those he raised to the PCR court. It asserts that petitioner 

focused on counsel’s failure to present an insanity defense, but 

did not alert the PCR court as to his current claim predicated 

upon a partial responsibility defense. Where petitioner 

presented the PCR court with a claim of attorney error based upon 

counsel’s alleged failure to raise a mental defense on his behalf 

that resulted in an unintelligent no-contest plea, the court 

finds petitioner gave the Oregon state courts a fair opportunity 

to pass upon the claim he now argues. 

 Turning to the merits of petitioner’s claim, a review of the 

record does not establish that counsel failed to advise 

petitioner of the availability of a partial responsibility 

defense. In his Affidavit, counsel stated that he advised 

petitioner that the only potential defense was a mental defense. 

Respondent’s Exhibit 131, p. 2. This was presumably based upon 

Dr. Suckow’s psychiatric evaluation wherein he concluded that 

petitioner’s violent attack upon the victim in this case was due 

to amphetamine use. From this record, the court cannot conclude 

that counsel failed to advise petitioner of the mental defenses 

available to him, including a partial responsibility defense. 

Indeed, even where petitioner’s claims at the PCR court were 

couched in terms of an insanity defense, counsel was aware that 

the “methamphetamine-induced psychosis . . . would not be a 

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complete defense, but it helped rebut intent” and “might have 

affected the trial outcome.” Respondent’s Exhibit 131, p. 3. 

 In addition, while petitioner faults counsel for allowing 

petitioner’s mother to have an impact on her son’s decisionmaking process, it is difficult to conclude how an attorney could 

require a 23-year-old client who apparently relied heavily upon 

his mother’s advice to eschew that advice. Whether petitioner’s 

mother was present for some of the discussions at issue likely 

would not have changed the level of influence she exerted in 

petitioner’s decision-making process. It is also significant 

that, although influenced by his mother, petitioner himself was 

adamant that he would not pursue a mental defense. Respondent’s 

Exhibit 131, pp. 2, 4. Faced with this reality as well as the 

uniquely unfavorable facts underlying a crime committed on a 

stage in front of hundreds of witnesses, counsel negotiated the 

best deal possible. 

 Although petitioner believes a sentence of 480 months was 

highly unlikely had he proceeded to trial, he has not established 

that such a sentence was unavailable under Oregon law. More 

importantly, it appears the PCR court found such a sentence to be 

permissible. Respondent’s Exhibit 133, p. 13; see also 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 statecourt determinations on state-law questions."). Petitioner

therefore cannot persuasively claim that having his sentence 

capped at 360 months with an opportunity to argue for a lesser 

sentence amounted to illusory benefit. 

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 Although not required to do so, the court has independently 

reviewed the record in this case due to the shifting nature of 

petitioner’s claim as noted by the State. Based upon this 

independent review, counsel’s performance did not fall below an 

objective standard of reasonableness. Petitioner also fails to 

demonstrate prejudice where he has not established that but for 

any error, he would have insisted on proceeding to trial in lieu 

of a plea. Accordingly, the PCR court’s decision is neither 

contrary to, nor an unreasonable application of, clearly 

established federal law. 

RECOMMENDATION

 For the reasons identified above, the Petition for Writ of 

Habeas Corpus (#1) should be denied and a judgment should be 

entered dismissing this case with prejudice. The court should 

decline to issue a Certificate of Appealability on the basis that 

petitioner has not made a substantial showing of the denial of a 

constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

SCHEDULING ORDER

 This Findings and Recommendation will be referred to a 

district judge. Objections, if any, are due within 14 days. If 

no objections are filed, then the Findings and Recommendation 

will go under advisement on that date. 

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 If objections are filed, then a response is due within 14 

days after being served with a copy of the objections. When the 

response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

 DATED this 21st day of November, 2016. 

 

 ___/s/ Patricia Sullivan _ 

 Patricia Sullivan 

United States Magistrate Judge

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