IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

JAMES JOSEPH BROWN,

Petitioner,

v. 

GARRETT LANEY,

Respondent.

Case No. 3:13-00774-HU

FINDINGS AND RECOMMENDATION

ANTHONY D. BORNSTEIN

Assistant Federal Public Defender

101 S.W. Main St., Suite 1700

Portland, OR 97204

Attorney for Petitioner

ELLEN F. ROSENBLUM

Attorney General

SAMUEL A. KUBERNICK

Assistant Attorney General

Department of Justice

1162 Court Street N.E.

Salem, OR 97301-4096

Attorneys for Respondent

HUBEL, Magistrate Judge

1 -- FINDINGS AND RECOMMENDATION

Case 3:13-cv-00774-HU Document 24 Filed 10/01/14 Page 1 of 13
Petitioner, an inmate in the custody of the Oregon Department

of Corrections, brings this habeas corpus proceeding pursuant to 28

U.S.C. § 2254. For the reasons set forth below, the petition

should be denied.

BACKGROUND

On April 28, 2008, petitioner was arrested after selling

methamphetamine to a confidential informant. Resp. Exh. 119 at 33-

34 & 73. At the time of petitioner’s arrest, his wallet contained

a Shell credit card in the name of Brandy L. O’Brien, and a

Citibank Check in the name of Denise Rennick (both of which had

been reported stolen). Resp. Exh. 119 at 27 & 32; Resp. Exh. 128

at 21. The police subsequently obtained a search warrant for

petitioner’s home, and seized additional personal identification

cards located in/under the headboard in petitioner’s bedroom. 

Resp. Exh. 119 at 65, 83-84 & 92. 

Also found in petitioner’s home were (1) stolen pay stubs and

other documents bearing the name “Eric Lawrence” (as well as his

daughter’s Social Security card); (2) stereo equipment; (3) an air

compressor; (4) a door and key from a neighborhood mail collection

box; (5) a notebook in which petitioner had written “To find a

credit card that’s not good call 1-800-225-5288;” and (6) a copy of

the Statesman Journal newspaper from April 2008 with the front page

article “Police investigate series of burglaries.” Resp. Exh. 119

& Resp. Exh. 128 at 17-21. Petitioner reviewed the police reports

2 -- FINDINGS AND RECOMMENDATION

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documenting the property located in, and/or seized from, his home

and vehicle. Resp. Exh. 119 & Resp. Exh. 128 at 24 & 38-39. 

On May 19, 2008, petitioner was indicted for delivery of

methamphetamine within 1,000 feet of a school (counts 1 & 3),

delivery of methamphetamine (counts 2 & 4-6), possession of MDMA

(count 7), identity theft (counts 8-13), and theft in the first and

second degrees (counts 14-15). Resp. Exh. 102 (Marion County Case

No. 08C-43752). Before trial, the State dropped three of the drug

charges. Resp. Exh. 116 at 2. Additionally, the State offered to

recommend a 92-month sentence in exchange for petitioner’s guilty

plea. Resp. Exh. 109 at 2, & Resp. Exh. 116 at 2. Petitioner

rejected the plea offer. Id.

However, on the morning of trial, petitioner entered a guilty

plea to the remaining drug charges (without any concessions from

the State), and proceeded to trial on the theft charges. Resp.

Exhs. 103 & 105. At trial, petitioner testified that he was not

aware of the personal identification cards found in his bedroom and

wallet, or the stolen property found in his residence and truck. 

Resp. Exh. 105 at 200-07 & 212-13; see also Resp. Exh. 128 at 32-

33. Petitioner testified that the presence of these items,

including the items in his wallet, was the result of the criminal

activity of people staying in his home. Resp. Exh. 105 at 227-28

& Resp. Exh. 128 at 32-33. Following a bench trial, petitioner was

found guilty of all theft charges, and sentenced to 117 months in

3 -- FINDINGS AND RECOMMENDATION

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case number 08C-43752, and a combined sentence of 136 months.1

 

Resp. Exhs. 101, 106 & 130 at 3. The court explained its ruling as

follows:

Mr. Brown, as I was listening to your testimony, I

couldn’t tell whether I was in a courtroom listening to

the testimony of someone charged with a crime or reading

an Alice in Wonderland fairy tale. I do not find you to

be credible at all. Someone who has the criminal history

that you have involving theft, having been in the

Department of Corrections twice, having all this property

in your house, in your bed –- headboard to your bed –-

under the headboard to your bed, under your bed in the

drawers, printers and check blanks.

You would ask me to turn a blind eye to all of this

and assume that you’re just a victim of all these

criminal people that moved into your property, and that

they just left all this property there, sir. I do not

believe that. I believe that if you were not directly

involved in stealing the property, you certainly aided

and abetted them by providing a clubhouse, if you will,

from which they could engage in identity theft.

I, in fact, believe that you engaged in identity

theft yourself for the reason that you had a stolen check

in your wallet and I believe you also had a credit card

in your wallet that belonged to another person.

Resp. Exh. 105 at 253-54.

Petitioner sought state post-conviction relief on the basis

that he received ineffective assistance of counsel. Petitioner

alleged that trial counsel (1) failed to review with him a compact

disc with approximately 80 photos of evidence seized from

1

 In two related cases, petitioner was indicted for possession of methamphetamine (to

which he pled guilty), and for Theft in the First Degree and two counts of Identity Theft (which

were consolidated for trial with 08C-43752). Resp. Exh. 103 & Resp. Exh. 105 at 10-11 & 13. 

Petitioner was convicted of those counts as well. 

4 -- FINDINGS AND RECOMMENDATION

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petitioner’s home; and (2) “failed to inform him of the existence

of and review with petitioner the various forms of identity; the

checks; and the credit cards.” Resp. Exh. 109 at 3.

At the state post-conviction proceeding, petitioner’s trial

counsel, James J. Susee, attested to his interactions with

petitioner as follows:

5. I provided to petitioner a complete copy of the

discovery I had in the case, with the exception of some

photographs that were on a CD. Petitioner would provide

me with lengthy excerpts from this discovery and include

very extensive notes on his thoughts.

6. I cannot say whether or not I presented Mr. Brown

with each and every photograph that I may have viewed in

his case as I did not have the facilities to show him the

CD pictures that he has referred to. However, I did show

him photographs that represented what was found in his

home and in the headboard of his bed. He adamantly

denied knowing anything about any of the items in the

photographs or in his home.

7. I would also admit that there may have been a few

photographs that were actually in the District Attorney’s

Office as opposed to provided to me in the discovery,

which I did not view. These pictures of items in the

headboard of his bed were discussed with Mr. Brown but

his position was simply that everything in the headboard

belonged to his bedmate who was a female who had herself

been charged with a number of identity thefts.

8. I discussed those items with him frequently as well

as discussing with him the fact that his entire home was

full of stolen property; however, he simply blamed that

on a male roommate who was also involved in identity

theft.

9. It was almost impossible to keep Mr. Brown on track

while dealing with these matters because of his adamant

denial of any knowledge of the evidence of the crimes.

5 -- FINDINGS AND RECOMMENDATION

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10. I discussed with him on a number of occasions the

State’s plea offer which he categorically rejected based

upon his statements that he had no knowledge with respect

to the identity theft items or the stolen property in his

home.

* * * * *

12. * * * I admit that I did not review the CD with

approximately 80 photos with him in person. I did review

the photos in my office; however, he is correct that I

did not show them all to him personally. Although I

described the content of the photographs to him,

petitioner never asked to see the other photographs

themselves in order to confirm that which I was telling

him.

13. * * * I did on numerous occasions discuss with him

the items that were found in the headboard of his bed. 

As previously indicated, he denied any knowledge that the

items were there and indicated that to the extent they

were, they belonged to his bedmate.

14. I acknowledge that there were items in the District

Attorney’s Office that I did not personally view . . . . 

This was an oversight on my part, however, he was so

adamant that he had absolutely no knowledge of anything

there that would have been indicative of identity theft

that I was less concerned as to the particular items.

15. I had discussed many of the items with him in

suggesting that he take the plea offer; however, he

continually rejected that. An example of his positions

would be the fact that a door to a community mail box was

found in his residence; he even denied knowing that it

was very likely stolen.

16. * * * I essentially confronted him with the clear

evidence of guilt that was laying around his apartment

and tried to get him to consider taking a plea deal. 

Petitioner refused to consider doing so, despite the fact

that I outlined for him the evidence that was going to be

very damaging at trial. He simply was not willing to

negotiate this case.

Resp. Exh. 118.

6 -- FINDINGS AND RECOMMENDATION

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In response, petitioner submitted a declaration to the state

post-conviction court, stating that he would have accepted the

prosecution’s 92-month plea offer had he been shown the

photographs, and been made aware of the various forms of identity,

checks, and credit cards found in his home and on his person. 

Resp. Exh. 110. Additionally, he testified that (1) Attorney Susee

was lying when he said that he showed petitioner photographs

representative of what was seized from the headboard; (2) the only

discussions he had with counsel about the photographic evidence was

a 10-minute conversation; (3) Susee never told petitioner that his

home was full of stolen property; and (4) Susee advised petitioner

to plead not guilty because the State could not prove the necessary

element of intent. Resp. Exh. 128 at 11-15, 25-26 & 29-30. 

Finally, petitioner testified that had he been shown the

photographs, he would have accepted the State’s plea offer. Id. at

16, 20 & 27.

The post-conviction court denied relief based primarily upon

its conclusion that petitioner was not credible:

Even though petitioner didn’t see some photos -- no

question, he didn’t -- the court believes that the

attorney told the petitioner of the evidence and urged

petitioner to take the deal. Nobody would want to try

this case.

Petitioner had the police report. It details lots

and lots of stuff, including the door to the post boxes

in plain sight, and based on those police reports,

petitioner had a lot of information about what the

evidence was going to be against him. At least several

7 -- FINDINGS AND RECOMMENDATION

Case 3:13-cv-00774-HU Document 24 Filed 10/01/14 Page 7 of 13
[pieces] of the evidence found were in his wallet, and

that’s just real hard to explain away.

The attorney was not inadequate for not getting

copies made for the petitioner, since he had a

conversation about the overwhelming nature of the

evidence, but I agree, he could have done so easily, and

I find it poor practice, particularly because it made it

–- he indicates that he and Mr. Brown were already having

issues, and clearly he should have gone the extra not

very far [mile] to get copies made from the CD. I think

that’s poor practice, but not sufficient for postconviction grounds.

I do not find him inadequate and I don’t find him

prejudicial [sic]. I find insufficient proof of any

inadequacy, of any prejudice. This case clearly should

not have gone to trial, and I believe the attorney when

he said he tried to convince Mr. Brown that this is not

a triable case.

Resp. Exh. 128 at 42-43. The Oregon Court of Appeals affirmed,

without opinion, and the Oregon Supreme Court denied review. Brown

v. Coursey, 251 Or. App. 829, 290 P.3d 20 (2012), rev. denied, 353

Or. 203 (2013).

STANDARDS

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

prisoner, shall 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 the evidence presented." 28

U.S.C. § 2254(d)(1) & (2); Harrington v. Richter, 131 S.Ct. 770,

8 -- FINDINGS AND RECOMMENDATION

Case 3:13-cv-00774-HU Document 24 Filed 10/01/14 Page 8 of 13
785 (2011). The petitioner carries the burden of proof. Cullen v.

Pinholster, 131 S.Ct. 1388, 1398 (2011). 

A state court decision involves an unreasonable application of

clearly established Federal law if it correctly identifies the

governing legal standard, but unreasonably applies it to the facts

of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75

(2003). An unreasonable application of federal law is different

from an incorrect application. Harrington, 131 S.Ct. at 785; White

v. Woodall, 134 S.Ct. 1697, 1702 (2014). Rather, “[a] state

court’s determination that a claim lacks merit precludes federal

habeas relief so long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington, 131 S.Ct.

at 786-87 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)); White, 134 S.Ct. at 1706-07; Burt v. Titlow, 134 S.Ct. 10,

16 (2013).

DISCUSSION

In grounds for relief one and two, petitioner alleges that

trial counsel was ineffective for failing to review with petitioner

a compact disc with approximately 80 photographs of seized

evidence, and failed to review with petitioner the various items of

personal identity seized. Petition at 8-10. Petitioner argues

that this evidence was critical to an informed decision about

whether to accept or reject the 92-month plea offer, and the state

court’s rejection of his claim constituted an unreasonable

9 -- FINDINGS AND RECOMMENDATION

Case 3:13-cv-00774-HU Document 24 Filed 10/01/14 Page 9 of 13
application of clearly established federal law. Id. at 11 & 13;

see 28 U.S.C. § 2254(d)(1).

A claim of ineffective assistance of counsel, requires the

petitioner to prove that counsel's performance fell below an

objective standard of reasonableness and that there is a reasonable

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

result of the proceeding would have been different. Bell v. Cone,

535 U.S. 685, 695 (2002); Williams v. Taylor, 529 U.S. 362, 390-91

(2000); Strickland v. Washington, 466 U.S. 668, 687-88 (1987). 

Claims of ineffective assistance of counsel in the plea bargaining

context are governed by this two-part test. Missouri v. Frye, 132

S.Ct. 1399, 1405-06 (2012). 

To prove deficiency of performance, petitioner must show that

counsel's representation fell below an objective standard of

reasonableness. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012)

(internal quotations omitted). “[C]ounsel should be ‘strongly

presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment.’” Burt, 134 S.Ct. at 17 (quoting Strickland, 466 U.S. at

690); Cullen, 131 S.Ct. at 1403. When a state prisoner asks a

federal habeas court to set aside a conviction due to ineffective

assistance of counsel, this court is required to use a doubly

deferential standard of review that gives both the state court and

10 -- FINDINGS AND RECOMMENDATION

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the defense attorney the benefit of the doubt. Burt, 134 S.Ct. at

13; Cullen, 131 S.Ct. at 1403.

When a plea offer has been rejected because of counsel’s

deficient performance, the prejudice component requires a

petitioner to show “a reasonable probability that the end result of

the criminal process would have been more favorable by reason of a

plea to a lesser charge or a sentence of less prison time.” Frye,

132 S.Ct. at 1409-10. This requires a showing that there is a

reasonable probability that, absent ineffective assistance of

counsel, petitioner would have accepted the more favorable plea

offer, the prosecution would have adhered to the agreement, and it

would have been accepted by the trial court. Frye, 132 S.Ct. at

1410-11; Lafler, 132 S.Ct. at 1385. 

In the instant proceeding, the state post-conviction court’s

factual findings that (1) trial counsel discussed with petitioner

the overwhelming evidence against him; (2) petitioner reviewed the

police reports documenting the evidence seized; and (3) counsel

strongly advised petitioner to pled guilty are not unreasonable

determinations of the facts in light of the evidence presented. 

See 28 U.S.C. § 2254(d)(2). The post-conviction court could

reasonably find trial counsel’s testimony credible, and the

testimony of petitioner incredible. 

Similarly, the state post-conviction court’s conclusion that

petitioner was not prejudiced by counsel’s performance is not

11 -- FINDINGS AND RECOMMENDATION

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objectively unreasonable given trial counsel’s attestation that he

confronted petitioner with the “clear evidence of guilt that was

laying around his apartment,” and petitioner nevertheless refused

to consider negotiating a guilty plea. Again, the post-conviction

court’s decision to credit the testimony of Attorney Susee was not

unreasonable in light of the evidence presented. See 28 U.S.C. 

§ 2254(d)(2).2

 In light of these findings of fact, petitioner has

failed to demonstrate that the post-conviction court’s rejection of

his ineffective assistance claims is either contrary to, or an

unreasonable application of clearly established Federal law. 28

U.S.C. § 2254(d)(1). Accordingly, habeas relief should be denied

as to grounds for relief one and two.

In grounds for relief three and four, petitioner alleges that

the post-conviction and appellate courts erred in denying him

relief. These grounds do not state a claim for the violation of

the Constitution or laws or treaties of the United States. See 28

U.S.C. § 2254(a). Moreover, petitioner does not pursue the claims

in his supporting memorandum. Accordingly, grounds for relief

three and four should be denied summarily.

2

 Because I find that the post-conviction court’s findings are not unreasonable under 28

U.S.C. § 2254(d)(2), I need not address the interplay between the reasonableness

standard under 

§ 2254(d)(2), and the presumption of correctness accorded state court factual findings under

§ 2254(e)(1). See Murray v. Schriro, 745 F.3d 984, 1000-01 (9th

Cir. 2014) (declining to resolve the issue); Burt, 134 S.Ct. at

14 (same).

12 -- FINDINGS AND RECOMMENDATION

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CONCLUSION

Based on the foregoing, petitioner’s petition for writ of

habeas corpus (#1) should be DENIED. Because petitioner has not

made a substantial showing of the denial of a constitutional right,

a certificate of appealability should be DENIED. See 28 U.S.C. 

§ 2253(c)(2).

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district

judge. Objections, if any, are due October 20, 2014. If no

objections are filed, then the Findings and Recommendation will go

under advisement on that date. 

If objections are filed, then a response is due November 6,

2014. When the response is due or filed, whichever date is

earlier, the Findings and Recommendation will go under advisement. 

DATED this 1st day of October, 2014. 

/s/ DENNIS J. HUBEL 

Dennis J. Hubel

United States Magistrate Judge

13 -- FINDINGS AND RECOMMENDATION

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