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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RANDY JOSEPH SEITZINGER,

Petitioner,

v.

MARK NOOTH, Superintendent,

Snake River Correctional Institution,

Respondent.

Case No. 2:14-cv-01705-SB

FINDINGS AND

RECOMMENDATION

_______________________________________

 

BECKERMAN, Magistrate Judge.

Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus 

proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the district judge 

should DENY Petitioner’s Amended Habeas Corpus Petition (ECF No. 19). Additionally, the 

district judge should DENY a Certificate of Appealability because Petitioner has not made a 

substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

BACKGROUND

I. Factual Background

On March 9, 2006, a man entered the Rogue Federal Credit Union (located in Ashland, 

Oregon), and forced a teller to give him approximately $6,000.00. See Resp’t Exs. (ECF No. 18), 

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Exs. 102 at 1; 103 at 27-28, 32, 39. On or about August 24, 2006, a grand jury indicted Petitioner 

for the robbery, charging him with Robbery in the Second Degree. Resp’t Ex. 102. 

At trial, the State offered the testimony of credit union employees Connie Johnson and 

Sylvia Driskell; eyewitness Deanna Sapp; Petitioner’s ex-wife Dawn Childress; DNA technician 

Christina Stivers; fingerprint analyst Darla Shaver; and several police officers. Resp’t Ex. 103 at 

4-6. Petitioner’s attorney did not call any witnesses. Id. at 6.

Sapp testified that on the day of the robbery she parked her car outside the credit union 

near the ATM booth. Id. at 62, 66. She saw a man in the booth “kind of staring” at her as he 

paced back and forth with an envelope in his hand. Id. at 63. During the two minutes she was 

observing him, he pulled down a ski mask he was wearing and left it around his neck while 

“glancing at the car [] in a suspicious manner.” Id. at 67. Shortly after the robbery, Sapp assisted

police in creating a composite sketch. Id. When shown a photo lineup approximately two months 

later, Sapp identified an individual other than Petitioner. Id. at 65, 80-81; see also Resp’t Ex. 117

(photo lineup).

Johnson and Driskell were working at the credit union on the day of the robbery. Resp’t 

Ex. 103 at 34, 54. Johnson testified that at approximately 2:07 p.m., a man wearing a hat and ski 

mask covering most of his face entered the credit union. Id. at 35, 40. When he did not remove

his mask, both employees became concerned. Id. at 36, 55.

Johnson testified that the man approached her counter holding an ATM envelope. Id. at

36, 57. She told him to pull down his mask, which he did, but then he pulled it back up. Id. at 36.

When she repeated her request, he said “this is a robbery.” Id. The man directed her to give him 

particular denominations of money, and then demanded the money in her “bottom drawer.” 

When she questioned his reference to the bottom drawer, he “stuck his hand in his pocket and 

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said ‘don’t make me have to shoot you.’” Id. at 36, 39, 58. Johnson complied, but also gave him

marked “bait money,” which set off a silent alarm. Id. at 36-38. 

Johnson testified that the robber had deep eyes, definite cheekbones, a long definite nose, 

and a moustache. Id. at 39. She testified that he was wearing a blue ski jacket and smelled 

strongly of cigarettes. Id. at 38, 40. She also confirmed that she had selected Petitioner’s photo 

when shown the lineup, though she had some reservations because the eyes did not look quite 

right. Id. at 42-43, 50; see also Resp’t Ex. 117. Johnson testified that the credit union records did 

not show Petitioner having transacted any business at the credit union. Resp’t Ex. 103 at 42.

When police processed the scene, they found partial fingerprints, id. at 89, and noticed a

wet, fresh, “runny nose kind of drop smear on the counter.” Id. at 84-85. An officer took a 

sample of the substance for DNA analysis. Id. Johnson testified that she had not seen the 

substance on the counter prior to the robbery. Id. at 40, 51. There was no testimony indicating 

that the robber had sneezed or otherwise transferred the material to the counter.

The fingerprints obtained from the credit union were of no value for identification, but

the DNA sample matched Petitioner. Id. at 89, 96-97. DNA technician Stivers testified that there 

was no indication of cross-contamination in the sample and that “less than one in 10 billion” 

people would have the same profile as that of the mucosal material on the counter and the swab 

taken from Petitioner’s mouth. Id. at 96-99.

Ashland Police Detective Brent Jensen testified that when he and FBI Special Agent 

Jeffrey M. Gray questioned Petitioner about the robbery, Petitioner denied ever being in a bank 

in Ashland. Id. at 78. However, Childress testified that she had obtained a hotel room for 

Petitioner in Ashland the day before the robbery. Id. at 69, 82. Childress also testified that 

Petitioner smoked and owned a coat similar to the one worn by the robber. Id. at 69, 71.

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With a unanimous verdict, the jury found Petitioner guilty of Robbery in the Second 

Degree. Id. at 125-26; Resp’t Ex. 122. The court sentenced Petitioner to a seventy-month term of 

imprisonment and three years of post-prison supervision. Resp’t Ex. 101 at 2-3.

II. Post-Trial Procedural History

On March 13, 2007, Petitioner filed a direct appeal alleging that his conviction was based 

on constitutionally insufficient evidence. Resp’t Exs. 104 at 4, 123 at 2. The Oregon Court of 

Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. 

Seitzinger, 224 Or. App. 687 (2008), rev. denied, 346 Or. 11 (2009). 

On November 5, 2009, Petitioner filed for post-conviction relief on the basis that he 

received ineffective assistance of trial and appellate counsel. Resp’t Exs. 109, 110. The postconviction trial court denied relief, the Oregon Court of Appeals affirmed without opinion, and 

the Oregon Supreme Court denied review. Resp’t Exs. 127 at 26-28, 128; Seitzinger v. Premo, 

258 Or. App. 907 (2013), rev. denied, 354 Or. 735 (2014). 

Petitioner moves this Court to grant habeas relief on the grounds that (1) he received 

ineffective assistance of trial counsel (in five particulars); (2) he received ineffective assistance 

of appellate counsel (in two particulars); and (3) there was insufficient evidence to support his 

conviction. Pet’r’s Am. Pet. (ECF No. 19) at 3-4. 

Respondent moves the Court to deny habeas relief, because (1) Petitioner has failed to 

sustain his burden of proof on portions of Grounds One and Two; (2) the remainder of Ground 

One is procedurally defaulted; and (3) the argued portions of Grounds One and Three are not 

meritorious. Resp’t’s Resp. to Am. Pet. (ECF No. 30) at 2, 14; Resp’t Sur-Reply (ECF No. 38) at 

2.

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STANDARDS

Pursuant to 28 U.S.C. § 2254(d), a petition for a 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) and (2); White v. Woodall, 134 S. Ct. 1697, 1702 (2014); Harrington v. 

Richter, 562 U.S. 86, 100 (2011).

A state court’s application of clearly established federal law is unreasonable if its 

decision is “so lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fairminded disagreement.” Woodall, 134 S. Ct. at 

1702; Richter, 562 U.S. at 103. A state court’s factual determination is not unreasonable merely 

because the federal habeas court would reach a different conclusion in the first instance. 

Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013). 

“Instead, § 2254(d)(2) requires that [this Court] accord the state trial court substantial 

deference.” Brumfield, 135 S. Ct. at 2277. If reasonable minds reviewing the record might 

disagree about the finding in question, habeas relief is not warranted. Id.

The last reasoned decision by the state court forms the basis of review by the federal

habeas court. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Comstock v. Humphries, 786 

F.3d 701, 707 (9th Cir. 2015). Where the state court reaches a decision on the merits but 

provides no reasoning to support its conclusion, a federal habeas court independently reviews the 

record to determine whether habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 

633 F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). 

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The habeas court must “determine what arguments or theories . . . could have supporte[d] 

the state court’s decision,” and then ask whether those theories are indisputably incompatible 

with Supreme Court precedent. Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citing Richter, 

562 U.S. at 101). “Independent review of the record is not de novo review of the constitutional 

issue, but rather, the only method by which [a court] can determine whether a silent state court 

decision is objectively unreasonable.” Himes, 336 F.3d at 853. 

DISCUSSION

I. Unargued Claims

Respondent moves the Court to deny habeas relief as to all of Petitioner’s ineffective 

assistance of counsel (IAC) claims, with the exception of the two discussed below, on the ground

that Petitioner did not address the claims in his supporting briefs and, therefore, has failed to 

sustain his burden to prove that habeas relief is warranted. Resp’t Resp. at 2.

This Court has reviewed the state court record and concludes that Petitioner has failed to 

sustain his burden to prove that habeas relief is warranted on the unargued claims. See Mayes v. 

Premo, 766 F.3d 949, 957 (9th Cir. 2014) (habeas petitioner bears the burden of proving his 

case); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (same). Accordingly, habeas 

relief should be denied as to those claims.

II. Insufficiency of the Evidence

Petitioner contends that the State presented insufficient evidence from which a jury could 

reasonably conclude that he was the robber, because (1) none of the eyewitnesses identified him 

as the robber from the video footage, police lineup, or in open court; (2) his fingerprints were not 

found in the bank; (3) the bait money, coat, and hat were not found in his possession; (4) there 

was insufficient evidence linking the DNA found at the bank to the robber; and (5) there was 

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insufficient circumstantial evidence from which the jury could infer guilt. Pet’r’s Br. in Supp. at 

21-22; Pet’r’s Reply at 1-2.

Respondent argues that the evidence is sufficient because the State presented testimony to 

show that (1) Petitioner was in Ashland at the time of the robbery; (2) Petitioner owned a coat 

similar to the robber’s coat; (3) Petitioner smoked and the robber smelled of smoke; (4) 

Petitioner’s facial features were similar to the robber’s facial features; (5) Petitioner’s DNA 

matched the wet substance found on the credit union’s counter; and (5) Petitioner had no 

business at the credit union which might otherwise explain the presence of his DNA. Resp’t Ex. 

105 at 3.

In Jackson v. Virginia, the Supreme Court held that the Due Process Clause “protects an 

accused against conviction except upon evidence that is sufficient [to fairly] support a conclusion 

that every element of the crime has been established beyond a reasonable doubt.” 443 U.S. 307, 

313-14 (1979). Evidence is sufficient to support a conviction if, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found that the

essential elements of the crime were met beyond a reasonable doubt. Parker v. Matthews, 132 

S. Ct. 2148, 2152 (2012); McDaniel v. Brown, 558 U.S. 120, 133 (2010) (same).

There is no reasoned state decision regarding Petitioner’s insufficiency of the evidence 

claim, and therefore this Court independently reviews the record to determine if the state court’s 

rejection of the claim is contrary to, or an unreasonable application of, clearly established federal 

law. Stanley, 633 F.3d at 860; Himes, 336 F.3d at 853. 

A. Eyewitness Identification

The eyewitness testimony concerning the identity of the robber was equivocal. The first 

eyewitness, Deanna Sapp, identified a person other than Petitioner as the robber from a photo 

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lineup. Resp’t Ex. 103 at 65, 80-81. At trial, discussing her meeting with a sketch artist “days” 

after the incident, Sapp acknowledged that she “only got to see him for a second” and “didn’t 

really pay much attention [to] little details.” Id. at 63-64. Petitioner’s ex-wife Childers did not

identify Petitioner in the bank surveillance footage, but testified that Petitioner was a smoker and 

owned a blue coat similar to the robber’s coat. Id. at 69, 71-72. In addition, teller Connie

Johnson, who had the best view of the robber, provided a general description of the robber at 

trial, testified that he smelled of smoke, and identified Petitioner’s photo from the photo lineup

(albeit with some reservation). Id. at 38-40, 42-43, 50.

B. Physical Evidence

Petitioner focuses on the fact that his fingerprints were not found in the credit union, and 

that the bait money and the robber’s clothing were not found in his possession. However, given 

the fact that Petitioner was not arrested until two months after the robbery, the fact that the bait 

money and clothing were not found in his possession is of no particular import.

With regard to the DNA evidence, police testified that the evidence was “a booger on the 

counter [] kind of one of these liquidy . . . runny nose kind of drop smear,” Resp’t Ex. 103 at 84,

and the photo in evidence shows that it was not a “smear” suggesting transference. Pet’r’s Br. in 

Supp., Ex. A. Furthermore, the DNA technician testified that there was no evidence of crosscontamination in the DNA sample. Although no witnesses testified to seeing the robber transfer 

the fluid to the counter, Petitioner has offered no reasonable, fact-based theory explaining how 

his DNA could have been transferred to the counter short of his presence in the credit union. 

C. Conclusion

The eyewitness testimony and DNA evidence were sufficient for a reasonable juror to 

conclude beyond a reasonable doubt that Petitioner robbed the credit union. Although the 

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eyewitnesses were unable to identify Petitioner with certainty, the DNA evidence linked 

Petitioner to the credit union, and the prosecution presented convincing circumstantial evidence 

linking Petitioner to the crime. The circumstantial evidence included testimony that Petitioner 

was in Ashland on the day of the robbery, that the robber smelled of smoke and Petitioner is a 

smoker, and the robber wore a blue jacket similar to one owned by Petitioner. Accordingly, 

based on an independent review of the record, the state courts’ rejection of Petitioner’s 

sufficiency of the evidence claim is neither contrary to, nor an unreasonable application of,

clearly established federal law. 28 U.S.C. § 2254(d)(1).

III. Ineffective Assistance of Counsel

Petitioner also seeks habeas relief on the basis that trial counsel rendered ineffective 

assistance at trial by failing to “effectively challenge the key evidence presented by the state and 

to provide an alternative explanation for how [Petitioner’s] DNA could have been in the bank.” 

Pet’r’s Br. in Supp. at 24. 

To succeed on a claim of ineffective assistance of counsel, a petitioner must prove that 

(1) trial counsel’s performance fell below an objective standard of reasonableness; and (2) there 

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88

(1984); Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). It is unnecessary to address 

both Strickland requirements if the petitioner makes an insufficient showing on one. Strickland, 

466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient 

before examining the prejudice suffered by the defendant.”); Villafuerte v. Stewart, 111 F.3d 

616, 630 (9th Cir. 1997) (“We may address prejudice without first deciding if counsel’s 

performance was deficient”).

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A. Failure to Provide Alternative Theory for Transfer of DNA

Petitioner argues that trial counsel failed to cross examine effectively, provide argument, 

or present expert testimony to provide the jury with an alternative theory as to how Petitioner’s 

DNA was found in the credit union. Pet’r’s Br. in Supp. at 20, 24, 27-28; Pet’r’s Reply at 3.

Respondent asks the Court to deny habeas relief on the basis that Petitioner procedurally

defaulted this claim on appeal from the denial of post-conviction relief, and has failed to 

demonstrate cause and prejudice to excuse the default. In the alternative, Respondent argues that 

the claim lacks merit. Resp’t Reply at 2. Petitioner responds that the procedural default of this 

claim occurred at the PCR trial level, and the default is excused under the reasoning in Martinez 

v. Ryan, 132 S. Ct. 1309 (2012).

1. Does the Martinez Exception Apply?

Ordinarily, “an ignorant or inadvertent procedural default” of a claim in a post-conviction 

proceeding cannot form the basis of a claim of ineffective assistance of counsel because there is 

no constitutional right to counsel in such proceedings. Coleman v. Thompson, 501 U.S. 722, 752 

(1991), holding modified by Martinez, 132 S. Ct. 1309. However, in Martinez, the Supreme 

Court recognized a limited exception, holding that “[i]nadequate 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.” Martinez, 132 S. Ct. at 1351. To satisfy Martinez, a habeas 

petitioner must show that: (1) the underlying ineffective assistance of trial counsel claim is 

substantial; (2) the petitioner had ineffective counsel during the state collateral proceeding; (3) 

the state collateral proceeding was the initial review proceeding for the claim; and (4) state law 

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required the petitioner to bring the claim in the initial review proceeding.1 Trevino v. Thaler, 133 

S. Ct. 1911, 1919 (2013).

Here, it is undisputed that Petitioner procedurally defaulted his IAC claim during the state 

post-conviction relief (PCR) proceeding. The parties disagree, however, as to when the 

procedural default occurred, i.e., at the trial level or on appeal. The resolution of this issue 

determines whether Petitioner’s procedural default may be excused, because Martinez does not 

excuse a procedural default on post-conviction appeal. 132 S. Ct. at 1320 (“The holding in this 

case does not concern attorney errors in . . . appeals from initial-review collateral 

proceedings[.]”); Ha Van Nguyen v. Curry, 736 F.3d 1287, 1295 (9th Cir. 2013) (affirming that 

Martinez applies only to IAC claims “procedurally defaulted by ineffective counsel in the initialreview state-court collateral proceeding”).

Petitioner argues that the IAC claim raised here was defaulted at the PCR trial level. He 

concedes that a similar claim was raised at the PCR trial proceeding (that counsel should have 

investigated or hired a DNA expert), but argues that the defaulted claim presented here differs in 

that he now alleges that trial counsel “failed to develop evidence at trial . . . despite that counsel 

had an available scientific theory to call into question the State’s DNA evidence.” Pet’r’s Reply 

at 3. Respondent counters that Petitioner’s IAC claim “clearly correlate[s]” to the claim raised at 

the PCR trial relating to the failure to call a defense DNA expert, and therefore was not defaulted 

until the PCR appeal. Resp’t Sur-Reply at 2.

Based on a review of the state court record and Petitioner’s Amended Habeas Petition, 

this Court concludes that, to the extent that Petitioner’s IAC claim is premised on trial counsel’s 

 1 Factors (3) and (4) are satisfied here—a post-conviction trial is the first available forum 

for review of ineffective assistance of trial counsel claims in Oregon, State v. McKarge, 78 Or. 

App. 667, 668 (1986), and all claims must be raised “in the original or [] amended petition for 

such relief” or are presumed waived. Knox v. Nooth, 244 Or. App. 57, 65 (2011). 

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failure to obtain a DNA expert, the claim was raised at the PCR trial and subsequently defaulted 

on appeal. Resp’t Ex. 111 at 11. Hence, Petitioner cannot rely on Martinez to excuse the

procedural default on this claim. 132 S. Ct. at 1320.

However, to the extent that Petitioner’s IAC claim is limited to trial counsel’s alleged 

failure to develop the theory of secondary transfer of DNA through cross-examination or 

argument, the claim arguably was not raised in the PCR trial proceeding, thus the Court will give

Petitioner the opportunity to satisfy Martinez. 

2. Does Martinez Excuse Petitioner’s Procedural Default?

Petitioner advances several arguments to support his assertion that his IAC claim is 

“substantial” under Martinez. First, Petitioner argues that trial counsel was deficient for failing to 

provide the jury with an alternative theory as to the presence of Petitioner’s DNA in the credit 

union after the robbery, Br. in Supp. at 1, and failing “to effectively counter the key evidence

presented by the State.” Id. at 24. Petitioner faults trial counsel for attacking the chain of custody 

of the DNA evidence and arguing that Petitioner was not in Ashland, rather than advancing an 

alternative theory about how Petitioner’s DNA could be found in the bank, either through crossexamination or argument. Id. at 20.

Further, Petitioner faults trial counsel for failing to use available literature or consultation 

with an expert to “develop the concept of secondary transfer of DNA in a way that the jury could 

meaningfully understand.” Id. at 26. Petitioner posits that “[h]ad this theory been developed, 

counsel could have introduced the possibility that [Petitioner] had sneezed or coughed on 

someone who then entered the bank at the time of the robbery and transferred his DNA, through 

his nasal mucus or sputum, to the interior of the bank.” Id. at 28. Petitioner acknowledges that 

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counsel made an “ineffective” attempt to offer a transfer theory at trial, but argues that counsel 

should have used available resources to develop a “plausible alternative explanation.” Id. at 30.

To determine whether this default is excusable under Martinez, the Court first asks 

whether the claim is “substantial,” which means that there is “a ‘reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been different.’”

Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) (citing Strickland, 466 U.S. at 694).

Petitioner must show that the deficient performance of trial counsel resulted in actual prejudice 

to the defendant’s case at trial. Id.; see Runningeagle, 825 F.3d at 982 n.13 (observing that the 

Strickland prejudice requirement for a post-conviction claim is met by proving the substantiality 

of the underlying trial claim) (citation omitted).

Here, the underlying IAC claim is not substantial. In an affidavit prepared for the PCR 

proceeding, trial counsel explained that there was nothing in evidence that “would suggest 

transference.” Resp. Ex. 125 at 4. The record supports a conclusion that trial counsel’s decision

not to develop the transference theory any further was a considered, strategic decision. See 

Zapien v. Martel, 805 F.3d 862, 872 (9th Cir. 2015) (strategic decisions, based on a thorough 

investigation of the law and facts, are virtually unchallengeable) (citing Strickland, 466 U.S. at 

690).

Petitioner asserts that there “was no downside to cross-examining the State’s 

witnesses . . . about an alternative theory.” Petr’s Reply at 3. That may or may not be so, but a 

defense attorney is not deficient for failing to pursue every potential alternative theory. See 

Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (observing that there is “no Supreme Court 

precedent establishing a ‘nothing to lose’ standard for ineffective-assistance-of-counsel claims”).

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At trial, counsel discussed transfer while cross-examining the State’s DNA expert, asking 

if it is possible to “transfer biological material and still get a valid DNA sample out of it.” Resp’t 

Ex. 103 at 99. Counsel then reiterated in closing argument that the “[witness] testified that in fact

DNA can transfer.” Id. at 118. In light of the fact that there was no smudging or smearing visible 

in the photographic evidence, Pet’r’s Br. in Supp., Ex. A, trial counsel’s decision not to pursue a

more robust transfer theory was not professionally unreasonable. Strickland, 466 U.S. 699.

Petitioner has not articulated any other transfer theory that would have had a “reasonable 

probability” of affecting the outcome of the trial. Accordingly, Petitioner has failed to 

demonstrate that his defaulted IAC claim is substantial as required by Martinez. The district 

judge should deny habeas relief on the ground that the claim is procedurally defaulted, and 

Petitioner has failed to demonstrate any basis to excuse the default. 

B. Failure to Cross-Examine Childress about the Coat Effectively

1. Was the Claim Fairly Alleged?

In Ground One, subpart E of the Amended Petition, Petitioner alleges that trial counsel 

failed “to effectively cross-examine the State’s witnesses[.]” Pet’r’s Am. Pet. at 3. In his Brief in 

Support, Petitioner describes the claim as a failure “to effectively challenge the evidence 

presented by the State, through cross-examination, or through the presentation of rebuttal 

evidence.” Pet’r’s Br. in Supp. at 19. Specifically, Petitioner contends that trial counsel was 

ineffective for failing to make use of information available in police reports to emphasize 

potential differences in the coat worn by the robber and Petitioner’s coat. Id. at 25.

Respondent asks the Court to deny habeas relief because Petitioner did not fairly allege

this claim in Ground One of the Amended Petition. Resp’t Resp. at 3-4. Respondent argues that 

the Amended Petition “does not contain a claim that trial counsel failed to use information in the 

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police reports to elicit testimony from Ms. Childress to undermine the impression that the coat 

worn by the robber could have been petitioner’s coat.” Resp’t Resp. at 4; see Rule 2(c), Rules 

Governing Section 2254 Cases (requiring Petitioner to specify “all the grounds for relief . . . the 

facts supporting each ground . . . [and] the relief requested”).

The Court finds that Petitioner’s allegation that trial counsel failed to cross examine the 

state’s witnesses effectively, contained in Ground One, subpart E of the Amended Petition, is 

sufficiently broad to encompass Petitioner’s current claim. However, because the IAC claim (as 

currently framed) was not raised during the state PCR proceeding, it is procedurally defaulted.

2. Does Martinez Excuse Petitioner’s Procedural Default?

Petitioner argues that trial counsel performed no independent pre-trial investigation, and 

therefore failed to elicit “from Childress how the coat worn by the robber was significantly 

dissimilar from the coat owned by Seitzinger, namely that one coat had snaps and the other did 

not.” Pet’r’s Br. in Supp. at 25, Ex. B at 2 (FBI report); Pet’r’s Reply at 3. Respondent counters 

that “trial counsel’s cross examination of [Childress] sufficiently exposed the fact that Childress 

could not identify petitioner as the robber, and [] there is no evidence that Childress ever 

affirmatively stated that the coats were dissimilar.” Resp’t Resp. at 12-13. Respondent reasons 

that once trial counsel obtained Childress’ testimony that she could not identify Petitioner as the 

robber, there was “no strategic benefit in eliciting further testimony” because the FBI report 

contained other information tending to implicate Petitioner.2 Id. at 13.

 2 The FBI report stated, “CHILDERS advised that the jacket worn by the robber looked 

to be the jacket worn by SEITZINGER when he arrived in Ashland about three months ago, but 

CHILDERS did not remember the jacket worn by SEITZINGER to have snaps. CHILDERS 

commented that SEITZINGER frequently wore beanie caps. [After viewing the surveillance 

footage, she] said that she believed SEITZINGER to be the robber because of the manner in 

which the robber stood in the lobby and his general posture.” Pet’r’s Br. in Supp., Ex. B at 2.

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It is not clear from the record why trial counsel decided to terminate cross-examination

after Childress testified that she could not identify Petitioner as the robber, but it appears to have 

been a reasonable decision based upon the additional testimony from Childress that trial counsel 

might have elicited had he continued the line of questioning. Regardless, in light of the totality of 

the evidence, including the eyewitness testimony and the DNA evidence, Petitioner has failed to 

demonstrate that, but for counsel’s failure to cross-examine Childress more effectively, there is a 

reasonable probability that the result of the proceeding would have been different. 

Accordingly, Petitioner has failed to demonstrate that his IAC claim is substantial as 

required by Martinez. The district judge should deny relief on the basis that the claim is 

procedurally defaulted and Petitioner has failed to demonstrate any basis to excuse the default.

CONCLUSION

Based on the foregoing, the district judge should DENY Petitioner’s Amended Habeas 

Corpus Petition (ECF No. 19). Additionally, the district judge should DENY a Certificate of 

Appealability because Petitioner has not made a substantial showing of the denial of a 

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

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Page 17 – FINDINGS AND RECOMMENDATION

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. If no objections 

are filed, the Findings and Recommendation will go under advisement on that date. If objections 

are filed, then a response is due fourteen (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 22nd day of December, 2016. 

_____________________________

STACIE F. BECKERMAN

United States Magistrate Judge

Case 2:14-cv-01705-SB Document 39 Filed 12/22/16 Page 17 of 17