1 - OPINION AND ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

WILLIAM SHREEVE, Case No. 2:15-cv-00499-MC

Petitioner, OPINION AND ORDER

 

v.

STEVE FRANKE, Superintendent,

Two Rivers Correctional Institution,

 

Respondent. 

______________________________ 

McShane, Judge:

Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

alleging prosecutorial misconduct and post-conviction trial court error. Petitioner also seeks to 

assert a claim of ineffective assistance of counsel. For the reasons explained below, the petition 

is denied.

BACKGROUND

Defendant was charged with the criminal mistreatment and assault of M, his eight-weekold child. Defendant lived with M, her mother, Michelle Nelson, and Nelson’s two other children

in Klamath County. At trial, Nelson testified that she left M alone with defendant while she

attended to her two older children, and she began to notice marks and bruises on M. Transcript of 

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Trial Proceedings, Jan. 13, 2004 (Tr.) at 128-142. Eventually, M was taken to the hospital and 

examined. Dr. Calvert was the physician who reviewed M’s x-rays. Dr. Calvert testified at trial 

that M had broken ribs, a linear skull fracture, and a chipped leg bone. Tr. 207-09, 213. He 

opined that the rib and leg injuries were consistent with a child who had been gripped by the 

torso and shaken, and that the skull fracture was likely caused by the use of blunt force against a 

hard surface. Tr. 210-218. Dr. Calvert did not believe the injuries to be accidental and he 

diagnosed M with “shaken baby syndrome.” Tr. 221-25. 

Petitioner’s defense focused on whether Nelson, rather than petitioner, was responsible 

for M’s injuries. Resp. Ex. 131. Trial counsel also challenged whether M’s injuries supported the 

diagnosis of shaken-baby syndrome, though counsel did not consult or call any outside experts to 

counter Dr. Calvert’s conclusions. Tr. 231-233, 241; Resp. Ex. 131 (affidavit of trial counsel 

indicating that he reviewed materials provided at a conference and did not consult medical 

experts).

The jury found petitioner guilty of one count of Assault in the First Degree and three 

counts of Criminal Mistreatment in the First Degree. They acquitted petitioner of Assault in the 

Second Degree and a remaining count of criminal mistreatment. Tr. 352-53. At sentencing, the 

trial court imposed consecutive, upward departure terms for a total of 192 months’ 

imprisonment. Transcript of Sentencing Proceedings, Mar. 16, 2004, at 11-14.

Petitioner directly appealed his conviction and sentence. Resp. Ex. 102. The Oregon 

Court of Appeals affirmed in a written opinion, and the Oregon Supreme Court denied review.

Resp. Ex. 105, 107-08. Petitioner also filed a petition for post-conviction relief (PCR) and 

alleged claims of ineffective assistance of trial counsel based on the failure to obtain and present 

expert testimony. Resp. Ex. 121 at 11-12.

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During the PCR proceedings, petitioner’s PCR counsel retained experts to review the 

medical evidence and render opinions regarding M’s injuries and the diagnosis of shaken-baby 

syndrome. PCR counsel encountered difficulty in obtaining some of M’s medical records and the 

timely assistance of experts, and the PCR court denied counsel’s request for a trial continuance 

to allow experts to review the evidence. Resp. Ex. 125-28; Resp. Ex. 135 at 4-6, 22. Ultimately, 

the PCR court denied relief and found that trial counsel was reasonable in choosing a trial 

strategy focused on the source of injury rather than the cause of injury. Resp. Ex. 135 at 32; 

Resp. Ex. 136. 

PCR counsel appealed the denial of the motion for continuance and did not appeal the 

substance of the PCR court’s rulings. Resp. Ex. 137. The Oregon Court of Appeals affirmed 

without opinion, and the Oregon Supreme Court denied review. Resp. Ex. 145-46.

On March 26, 2015, petitioner filed the instant petition seeking federal habeas relief 

under 28 U.S.C. § 2254. 

DISCUSSION

In Ground One of his federal pro se petition, petitioner asserts that his “conviction was 

obtained by unconstitutional failure of the prosecution to disclose to the defendant evidence 

favorable to the defendant.” (ECF #2) Respondent argues that this claim is non-exhausted and 

procedurally defaulted, and petitioner agrees. Pet’s Br. at 6, n.1; 28 U.S.C. § 2254(b)(1)(A); see 

also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995)

(per curiam). Accordingly, federal habeas review of this claim is barred by procedural default. 

Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371, 

376 (9th Cir. 2002). 

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In Ground Two of his federal petition, petitioner claims that “there are experts that we 

could use to help use in our defense” and his PCR attorney “wanted time to allow two (2) experts 

to help in my case. We just needed this time.” (ECF #2) Petitioner’s claim seemingly challenges 

the PCR court’s denial of his request for continuance to allow experts to review the medical 

evidence. Respondent maintains that a claim of PCR court error is not cognizable on federal 

habeas review. Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (holding that postconviction court procedures cannot be asserted as a basis for relief in a federal habeas petition). 

Petitioner agrees that a procedural decision of a PCR court is not reviewable. However, 

petitioner argues that the court should construe Ground Two liberally as a claim of ineffective 

assistance of PCR counsel to excuse the procedural default of a claim for ineffective assistance 

of trial counsel. See Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner argues that the 

ineffectiveness of his PCR counsel prevented him from fully developing his claim that trial 

counsel was ineffective for failing to present expert testimony. Petitioner maintains that he could 

have “demonstrated the inadequacy of the state’s theories as to ‘shaken baby syndrome’” had 

PCR counsel conducted an effective investigation. Pet. Br. at 8. Petitioner requests an 

evidentiary hearing to present evidence of PCR counsel’s deficiency in presenting expert 

testimony to the PCR court. 

Under Martinez, the ineffective assistance of PCR counsel may serve as cause for the 

procedural default of an ineffective assistance of counsel claim. For the Martinez exception to 

apply, a petitioner must show that post-conviction counsel “was ineffective under the standards

of Strickland v. Washington” and that the underlying ineffective assistance of counsel claim is 

“substantial” and “has some merit.” Martinez, 566 U.S. at 14; see also Strickland v. Washington, 

466 U.S. 668 (1984) (ineffective assistance of counsel requires a showing of deficient 

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performance and resulting prejudice); Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) 

(“to find a reasonable probability that PCR counsel prejudiced a petitioner by failing to raise a 

trial-level IAC claim, we must also find a reasonable probability that the trial-level IAC claim 

would have succeeded had it been raised”). If a petitioner makes these showings, the federal 

court may find cause to excuse the procedural default of an ineffective assistance of counsel 

claim and review the claim on the merits. Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013); 

Martinez, 566 U.S. at 13-14. The district court may hold an evidentiary hearing to assess whether 

PCR counsel was ineffective and whether the underlying claim is substantial. See Dickens v. 

Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc). 

Assuming without deciding that Ground Two can be construed as liberally as petitioner 

requests, petitioner does not meet the Martinez requirements. First, aside from asserting the 

failure to conduct a “reasonable” investigation, petitioner does not explain how PCR counsel was 

ineffective or deficient. Pet. Br. at 7-8. As recognized by petitioner, PCR counsel appreciated the 

importance of expert assistance and retained medical experts to review the medical evidence. 

Nonetheless, PCR counsel experienced difficulty in obtaining M’s x-rays, and the retained 

experts were unable to review the medical evidence prior to the PCR trial date. The PCR court 

denied counsel’s requests for additional subpoenas and a continuance of trial, and PCR counsel 

had no additional medical evidence to present in the PCR proceeding. Resp. Ex. 125-28; Resp. 

Ex. 135 at 23-27, 30. In light of this record, petitioner must specify how PCR counsel’s

investigation was unreasonable or what actions PCR counsel should have taken. 

Second, petitioner fails to explain how he was prejudiced by the ineffective assistance of 

either PCR or trial counsel. Petitioner contends that both PCR and trial counsel failed to obtain 

and present expert testimony regarding whether M’s injuries were accurately diagnosed as 

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shaken-baby syndrome. See Pet. Br. at 7-8; Resp. Ex. 121 at 11-12. However, as established by 

the PCR record, the State’s case against petitioner relied primarily on the nature and extent of 

M’s injuries and on Nelson’s testimony identifying petitioner as the only other person who cared 

for M. Tr. 292-93, 297-304. As explained by the assistant district attorney who prosecuted 

petitioner:

There was no dispute that the victim was injured. She was injured at different 

times and those injuries included a skull fracture, broken leg, and broken ribs.

The main focus of my case was that these injuries were non-accidental injuries,

and Mr. Shreeve was the only one with access to the victim who could have

caused the injuries.

Dr. James Calvert testified that the victim’s injuries were intentionally caused,

and that is what was key to this case. It did not matter whether Dr. Calvert called

it Shaken Baby Syndrome. The point was that the injuries were intentionally

caused.

If [trial counsel] had cross-examined Dr. Calvert about the victim’s injuries not

being consistent with the triad of Shaken Baby Syndrome injuries, I probably

would have asked Dr. Calvert on re-direct, “Regardless of what you want to call

it, are the injuries consistent with accidental trauma or intentional trauma?”

Resp. Ex. 132. 

Significantly, petitioner did not dispute the nature or extent of M’s injuries at trial. 

Further, petitioner provided no explanation as to how M could have suffered a fractured skull, 

broken ribs, or a chipped leg bone. Instead, petitioner’s defense focused on blaming Nelson for 

M’s injuries. Tr. 310-14, 317-20. Even if trial counsel had presented expert testimony to counter 

the diagnosis of shaken-baby syndrome, such testimony would not have supported his primary 

defense theory and would not have diminished evidence of M’s injuries or the State’s theory of 

who caused those injuries. 

In sum, petitioner fails to establish ineffectiveness of PCR counsel or a “substantial” 

claim of ineffective assistance of trial counsel to warrant an evidentiary hearing and federal 

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habeas review of a procedurally defaulted claim under the Martinez exception. Dickens, 740 F.3d 

at 1322 (“cause and prejudice” hearing on PCR counsel’s ineffectiveness requires a showing that 

the underlying ineffective assistance claim is “substantial”).

CONCLUSION

Petitioner’s Petition for Writ of Habeas Corpus (#2) is DENIED and this case is 

DISMISSED. A Certificate of Appealability is denied 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).

IT IS SO ORDERED.

DATED this __27th_ day of February, 2017.

_s/Michael J. McShane_______________

Michael McShane

United States District Judge

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