UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

MATTHEW DWIGHT THOMPSON, 

Petitioner, 

v. 

JEFF PREMO, Superintendent, 

Oregon State Penitentiary, 

Respondent. 

AIKEN, District Judge. 

6: 15-cv-01313-AA 

ORDER 

In his brief on exhaustion and procedural default, respondent 

identified five claims as procedurally defaulted and thus not subject 

to federal habeas review: First Claim "Death Qualification" of 

Petitioner's Jurors was Unconstitutional; Second Claim 

Death-Qualification Voir Dire Violated the Prospective Jurors' 

Constitutional Rights and Trial Counsel was Ineffective in Failing 

to Object on this Ground; Fourth Claim The Trial Court Wrongly 

Discharged Prospective Jurors Nos. 4 and 79, and Trial Counsel Failed 

to Object to the Dismissal of these Life-Prone Jurors; Sixteenth 

·1 - ORDER 
Claim Cruel and Unusual Punishment; and Seventeenth Claim Cumulative 

Impact of Errors. 

While petitioner concedes that the aforementioned claims are 

procedurally defaulted, he maintains that in accordance with 

Martinez v. Ryan, 566 U.S. 1 (2012) he can show cause and prejudice 

sufficient to excuse their default based on his post-conviction 

( "PCR") counsel's failure to raise related and meritorious 

ineffective assistance of trial and appellate counsel claims. 1 

I. Applicable Law on Procedural Default and the Martinez 

Exception 

As a general matter, habeas review of a defaulted claim is barred 

unless a petitioner "can demonstrate cause for the default and actual 

prejudice as a result of the alleged violation of federal law." 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Ordinarily, "cause" 

to excuse a default exists if a petitioner can demonstrate that "some 

objective factor external to the defense impeded counsel's efforts 

to comply with the State's procedural rule." Id. at 753. In 

Coleman, the Court held that ineffective assistance of counsel in 

1 In his Reply [55), p. 5, petitioner stated that ''respondent 

is correct that none of the issues it has identified have been 

presented to the highest level of the state court." However, in his 

Sur-reply [57), p. 1, he asserts for the first time that despite 

petitioner's failure to ''fairly present'' Claim One to the Oregon 

courts, the Oregon Supreme Court ruled on the merits of this federal 

claim and therefore there is no procedural default. 

2 - ORDER 
post-conviction proceedings does not establish cause for the 

procedural default of a claim. Id. 

In Martinez, however, the Court established a "narrow 

exception" to the rule announced in Coleman: 

Where, under state law, claims of ineffective assistance 

of trial counsel must be raised in an initial-review 

collateral proceeding, a procedural default will not bar 

a federal habeas court from hearing a substantial claim 

of ineffective assistance at trial if, in the 

initial-review collateral proceeding, there was no 

counsel or counsel in that proceeding was ineffective. 

566 U.S. at 1 7; see also Trevino v. Thaler, 133 S. Ct 1911, 1918 (2013) 

(noting that Martinez may apply to a procedurally defaulted 

trial-phase ineffective assistance of counsel claim if ''the claim 

... was a 'substantial' claim [and] the 'cause' consisted of there 

being 'no counsel' or only 'ineffective' counsel during the state 

collateral review proceeding" (quoting Martinez, 566 U.S. at 1 7) ) . 

The Ninth Circuit has held that to demonstrate cause and 

prejudice under Martinez sufficient to excuse the procedural 

default, a petitioner must make two showings. First, to establish 

cause, he must show that his PCR counsel was ineffective under 

Strickland v. Washington, 466 US. 668 (1984) which requires him to 

show that PCR counsel's performance was deficient and that there was 

a reasonable probability that, absent the deficient performance, the 

result of the PCR proceedings would have been different. Clabourne 

v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014). Determining whether 

3 - ORDER 
there was a reasonable probability of a different outcome "is 

necessarily connected to the strength of the argument that trial 

counsel's assistance was ineffective." Id. at 377-78. Second, to 

establish prejudice, the petitioner must show that his "underlying 

ineffective-assistance-of-trial-counsel claim is a substantial one, 

which is to say that the prisoner must demonstrate that the claim 

has some merit." Id. 

Under Martinez, a claim is substantial if it meets the standard 

for issuing a certificate of appealability. Martinez, 466 U.S. at 

14 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). According 

to that standard, "a petitioner must show that reasonable jurists 

could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed 

further." Detrich v. Ryan, 740 F. 3d 1237, 145 (9th Cir. 2013) 

(quoting Miller-El, 537 U.S. at 336). 

II. Discussion 

A. First Claim: "Dea th Qualification" of l?eti tioner' s 

Jurors was Unconstitutional 

Petitioner alleges in his First Claim that the trial court's 

death qualification of jurors at his trial violated his 

constitutional rights. In his Petition [43], pp. 10-11, he 

specifically notes that his trial counsel "filed a motion to prohibit 

4 - ORDER 
death qualification of jurors," but that the trial court denied the 

motion. In subsequent briefing, however, petitioner suggests that 

trial counsel rendered constitutionally deficient performance when 

he failed to object based on federal law to the court's use of death 

qualification. To the extent that the Court would find that this 

claim is one of trial court error only, he seeks leave to amend his 

petition to add an ineffective assistance of trial counsel claim 

"challenging prior counsel's failure to properly present the 

[federal] claim.'' Sur-reply [57], p. 3. 

Moreover, on this question of default, petitioner contends that 

despite his failure to fairly present this federal claim to the Oregon 

Supreme Court, that court denied it on the merits when it referenced 

its earlier decisions discussing related challenges, including 

federal challenges, to Oregon's death penalty scheme. He further 

maintains that there is no doubt as to how the Oregon Supreme Court, 

exercising its discretion to consider the federal claim, would have 

ruled. Accordingly, he maintains that where the Oregon Supreme 

Court ruled on the merits of the federal claim, despite his failure 

to properly present it to that court, there is no procedural default. 

Alternatively, and with regard to his proposed ineffective 

assistance of trial counsel claim, petitioner argues that this 

underlying ineffective assistance claim is "substantial" for 

purposes of Martinez because the evidence he presents in the Petition 

5 - ORDER 
shows that death-qualified jurors are significantly more 

conviction-prone than non-death-qualified jurors and that in Oregon 

they are "organized to convict". Cf. Lockhart v. Mccree, 476 U.S. 

162 (1986) (Court relied on its refusal to find that the empirical 

evidence did anything more than establish that death qualification 

produced juries somewhat more conviction-prone than 

non-death-qualified juries). 

First, I reject petitioner's contention that the Oregon Supreme 

Court resolved this federal claim on the merits. 2 I have carefully 

reviewed the record. In petitioner's automatic direct appeal he 

alleged: 

"Death qualification" is the procedure allowing the 

prosecution to challenge for cause jurors who oppose the 

death penalty. Death qualification results in the 

exclusion of jurors from the guilt phase of the trial who 

are objectionable to the state only because they will not 

vote to impose the death penalty. Comprehensive social 

scientific studies have demonstrated that a jury selected 

after such a process is substantially more conviction 

prone than juries in other cases. The studies also show 

that the selection process deprives a defendant of a jury 

chosen from a cross section of the community. This 

procedure violates Article I, section 11 of the Oregon 

Constitution, because it denies a defendant an impartial 

jury drawn from a representative cross section of the 

community. 

DR 18-3, Ex. 259, p. 157 (emphasis added). In respondent's answering 

brief, he merely quoted petitioner's above arguments regarding death 

2 As noted above, petitioner's assertion contradicts his prior 

concession that this claim is procedurally defaulted. 

6 - ORDER 
qualification and cited to Oregon Supreme Court authority rejecting 

those arguments. DR 18-4, Ex. 269, p. 104. The parties agree that 

petitioner did not fairly present a federal death-qualification 

claim to the Oregon Supreme Court on direct review. 

In denying relief on the death-qualification claim that 

petitioner did present, the Oregon Supreme Court held: 

Finally, defendant contends that the trial court erred in 

overruling his demurrer attacking the constitutionality 

of Oregon's death-penalty scheme. Defendant recognizes 

that his challenges to Oregon's death penalty have been 

rejected by this court in previous death penalty appeals. 

See, e.g., State v. Guzek, 310 Or 299, 797 P2d 1031 (1990); 

State v. Montez, 309 Or 564, 789 P2d 1352 (1990); State 

v. Wagner, 309 Or 5, 786 P2d 93 (1990) . We decline to 

reconsider these issues. See State v. Barone, 328 Or 68, 

98, 963 P2d 667 (1998) (declining to revisit issues 

previously decided); State v. Hayward, 327 Or 397, 414, 

963 P2d 667 (1998) (same). We hold that the trial court 

did not err in overruling defendant's demurrer. 

DR 18-4, Ex. 271, p. 37. 

Petitioner is correct that fair presentation is not the only 

mode of establishing exhaustion of state remedies. Rather, where 

the state courts have reached and passed on the merits of a federal 

claim, regardless of whether the petitioner fairly presented it to 

them, state remedies are exhausted as to that claim. See Castille 

v. Peoples, 489 U.S. 346, 351 (1989) (" [i]t is reasonable to infer 

an exception where the State has actually passed upon the claim."); 

Greene v. Lambert, 288 F. 3d 1081, 1086 (9th Cir. 2002) ("exhaustion 

does not require repeated assertions if a federal claim is actually 

7 - ORDER 
considered at least once on the merits by the highest state court"); 

Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir. 1984) 

("[t]here is no better evidence of exhaustion than a state court's 

actual consideration of the relevant constitutional issue"); and 

Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir. 1990) (state 

court's sua sponte consideration of an issue satisfies exhaustion). 

Critically, however, the record here does not support a 

contention that the Oregon Supreme Court ever ruled on the merits 

of a federal death-qualification claim in this case. As noted above, 

that court did not cite to a single federal case or federal 

constitutional provision indicating it was addressing a federal 

death-qualification claim. Cf. Jones v. Dretke, 375 F.3d 352, 355 

(5th Cir. 2004) (state court specifically referenced the Sixth 

Amendment and its bearing on jury selection and determined there was 

no violation of that constitutional right); Walton v. Caspari, 916 

F.2d 1352, 1356-57 (8th Cir. 1990) (citation to Swain v. Alabama, 

380 U.S. 202 (1965), the landmark federal equal protection case on 

peremptory challenges at the time); Sandstrom, 738 F.2d at 1206 

(citation and reliance on Mayberry v. Pennsylvania, 400 U.S. 455 

(1971), the leading case on disqualification of judges in contempt 

proceedings, in deciding the claim) . Petitioner's reliance on Engle 

v. Isaac, 456 U.S. 107, 135 n.44 (1982) notwithstanding, the above 

cases underscore the weakness in petitioner's argument that the 

8 - ORDER 
Oregon Supreme Court, merely by citing Montez, an Oregon case which 

in turn cited Wainwright v. Witt, 469 U.S. 412, 424 (1985) and 

Lockhart, addressed his federal claim on the merits. I conclude that 

petitioner did not fairly present this federal claim to the Oregon 

courts and he cannot establish that the Oregon Supreme Court 

addressed it sua sponte on the merits. Accordingly, the claim is 

procedurally defaulted. As respondent correctly notes, Martinez 

cannot excuse the procedural default of either trial court error or 

ineffective assistance of appellate counsel claims. See Davila v. 

Davis, 137 S. Ct. 2058, 2063 (201 7) (Martinez does not apply to 

underlying claims of ineffective assistance of direct appeal 

counsel. It applies only to procedurally defaulted claims of 

ineffective assistance of trial counsel). 

I turn next to petitioner's proposed ineffective assistance of 

trial counsel claim alleging counsel failed to raise and preserve 

a federal death-qualification claim. For the reasons that follow, 

I conclude that petitioner cannot show this claim is a "substantial" 

one pursuant to Martinez. Given Lockhart was and is established 

Supreme Court authority settling the cons ti tutionali ty of death 

qualification, a fact that trial counsel specifically noted in his 

pretrial motion, 3 any claim that counsel rendered ineffective 

3 Trial counsel filed a pretrial motion objecting to the use 

of death qualification for jury selection on state law grounds and 

9 - ORDER 
assistance by relying on this authority or that petitioner suffered 

prejudice as a result has no merit. See Lowry v. Lewis, 21 F.3d 344, 

346 (9th Cir. 1994) (counsel was not ineffective because a "lawyer 

cannot be required to anticipate our decision" in a later case); 

Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (rejecting 

ineffective assistance claim based upon counsel's failure to predict 

future changes in the law because "clairvoyance is not a required 

attribute of effective representation'') . Petitioner points to no 

authority supporting the proposition that trial counsel renders 

ineffective assistance when he or she fails to anticipate a change 

in the law in the face of controlling, contrary Supreme Court 

precedent during the entire course of counsel's representation. 

For these same reasons, petitioner cannot show that PCR 

counsel's representation was deficient when he failed to raise an 

ineffective assistance of trial counsel claim on these grounds. 

Accordingly, petitioner's request for leave to amend to add an 

ineffective assistance claim based on trial counsel's failure to 

for reasons including that studies show that "death qualified" juries 

are substantially more conviction prone than juries generally and 

that death qualification results in a jury that is not a 

representative cross-section of the community. Counsel did 

concede, however, that pursuant to Lockhart v. Mccree, 476 U.S. 162 

(1986), death qualification did not violate the Sixth Amendment. DR 

18-1, Exhibits 141-42. The trial court denied petitioner's 

challenge on the basis that his arguments had been settled under 

Oregon law by Montez, 309 Or. at 574-76 and State v. Walton, 311 Or. 

223, 243 (1991). 

10 - ORDER 
raise and preserve a federal death-qualification claim is denied as 

futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (a 

court retains discretion to deny leave to amend in a habeas case based 

on futility of amendment alone). 

B. Second Claim: Death-Qualification Voir Dire Violated the 

Prospective Jurors' Constitutional Rights and Trial 

Counsel was Ineffective in Failing to Object on this Ground 

Petitioner concedes that this claim was not presented to the 

Oregon Supreme Court, but asserts that Martinez excuses the default 

of the ineffective assistance of trial counsel claim based on 

counsel's failure to object to the death qualification of prospective 

jurors Minty (12), Davis (79) and Ruth Papineau Williams (4) 4 as 

violating these jurors' rights to equal protection as set forth in 

Powers v. Ohio, 499 U.S. 400 (1991) and Brown v. Allen, 344 U.S. 443 

(1953). Petitioner maintains that "[i)ssues involving the rights 

of jurors to serve are almost always substantial" and that given that 

these jurors were not likely to impose death, the consequences to 

him of their improper exclusion are grave. He contends that 

exclusion of these jurors amounts to structural error and requires 

the Court to set aside the penalty verdict. Moreover, he asserts 

that his PCR counsel rendered deficient and prejudicial performance 

when, without having obtained and reviewed available juror 

4 There was another prospective juror named Ruth May Williams 

(59) 

11 - ORDER 
questionnaires, counsel raised no issues pertaining to jury 

selection during the PCR proceedings. 

As a preliminary matter and as noted above, to the extent that 

this is a trial court error claim, Martinez cannot excuse its 

procedural default. Davila, 137 S. Ct. at 2063. Accordingly, I 

will focus on petitioner's allegations of ineffective assistance of 

counsel for failing to object to the death qualification of 

prospective jurors at petitioner's trial as violating their 

constitutionally protected right to equal protection. 

Specifically, I will address petitioner's argument that the right 

to sit on a capital jury implicates the jurors' equal protection 

rights and as such death qualification at the guilt phase in Oregon 

cannot survive either strict scrutiny or rational basis analysis. 

For his part, respondent contends that petitioner offers little 

substantive analysis of either the performance or prejudice prong 

of Strickland with respect to his trial counsel's failure to raise 

the "novel claim that death-qualification voir dire is prohibited 

in a capital case because it violates the prospective jurors' right 

to equal protection under the federal constitution.'' Similarly, 

respondent argues that petitioner has presented virtually no 

analysis supporting his assertion that PCR counsel was 

constitutionally ineffective. 

12 - ORDER 
Critically, while it is clear that the Equal Protection Clause 

prohibits the use of peremptory challenges to excuse jurors on the 

basis of race, see Batson v. Kentucky, 476 U.S. 79 (1986) holding 

modified by Powers, and gender, see J.E.B. v. Alabama ex rel. T.B., 

511 U.S. 217, 130-31 (1994), and that these equal protection rights 

belong to the jurors themselves, no precedent exists extending these 

protections to non-death-qualified jurors so as to create a conflict 

with principles set out in Supreme Court cases affirming the 

constitutionality of death qualification. Indeed, it is perverse 

logic that would have this Court borrow the principle mandating that 

qualified and unbiased jurors not be excused from jury service based 

solely on their race or gender to protect jurors the trial court has 

affirmatively deemed unqualified to serve because they are unwilling 

and/or unable to follow the court's instructions and uphold their 

oaths as jurors to follow the law. See Powers, 499 U.S. at 409 ("We 

hold that the Equal Protection Clause prohibits a prosecutor from 

using the State's peremptory challenges to exclude otherwise 

qualified and unbiased persons from the petit jury solely by reason 

of their race.''). 

Petitioner confines the arguments in his supporting briefs to 

a claim of ineffective assistance of counsel for not objecting to 

the death qualification of the aforementioned jurors on the basis 

it violated their right to equal protection vis-a-vis their 

13 - ORDER 
constitutional right to serve on a jury. In his Petition, he also 

suggests that death qualification violates jurors' rights to free 

exercise of religion, jurors' rights to participate in the Eighth 

Amendment question surrounding evolving standards of decency and his 

own right to an impartial jury. Briefly addressing petitioner's 

suggestion that death qualification compromises jurors' rights to 

freely practice their religion and a petitioner's right to an 

impartial jury, I note that the death-qualification process 

eliminates from the prospective juror pool only those persons who 

indicate that they are unable to render a verdict based on the 

evidence presented during trial and the court's instructions on the 

law. The Supreme Court has held "that a juror who in no case would 

vote for capital punishment, regardless of his or her instructions, 

is not an impartial juror and must be removed for cause." Morgan 

v. Illinois, 504 U.S. 719, 728 (1992). Death qualification, because 

it focuses on whether the jurors' views would prevent or 

substantially impair the performance of their duties as jurors in 

accordance with their instructions and oath, does not require the 

court or the parties to look to the sources of excluded jurors' 

beliefs, religious or otherwise. See e.g., Ortiz v. Quarterman, 504 

F.3d 492, 500 (5th Cir. 2007), cert denied, 553 U.S. 1035 (2008) ("a 

veniremember may not be excluded from sitting on a capital jury merely 

because she voices general objection to the death penalty or 

14 - ORDER 
expresses conscientious or religious scruples against its 

infliction") . 

Finally, I reject petitioner's argument that these jurors are 

being denied their constitutional rights to equal protection because 

they are barred from weighing in on the question of evolving standards 

of decency under the Eighth Amendment. I am persuaded that while 

the exclusion of non-death-qualified jurors may affect the weight 

to be given to jury verdicts recommending death as an indicia of 

community standards, it is not alone a basis for finding that the 

process violates those jurors' equal protection rights or that the 

practice itself violates the Eighth Amendment. See United States 

v. Sampson, 2015 WL 7962394, *11 n.11 (D. Mass Dec. 2, 2015), In 

adopting this reasoning, I am cognizant that jurors who are 

personally opposed to the death penalty, regardless of reason, are 

permitted to serve on capital juries provided they are death 

qualified. In addition, non-death-qualified jurors have other 

avenues, such as voting, to weigh in on the Eighth Amendment community 

standards question. Ultimately, I conclude that when the Supreme 

Court affirmed the constitutionality of death qualification in 

Lockhart, it necessarily determined that barring 

non-death-qualified jurors from serving on capital case juries did 

not invoke, let alone violate, any constitutionally protected equal 

protection rights of such jurors. 

15 - ORDER 
For the reasons discussed above, I find no support for the 

proposition that death qualifying a jury for the guilt phase of a 

capital trial violates either the affected jurors' or the defendant's 

rights. As such, it would have been futile for petitioner's trial 

counsel to have challenged the death-qualification process on these 

grounds. See James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) 

("[C]ounsel's failure to make a futile motion does not constitute 

ineffective assistance of counsel."). Accordingly, petitioner 

cannot show either that PCR counsel's representation was deficient 

when he failed to raise an ineffective assistance of trial counsel 

claim on these grounds or that the underlying ineffective assistance 

of counsel claim was a "substantial" one under Martinez. 

C. Fourth Claim: The Trial Court Wrongly Discharged 

Prospective Jurors Nos. 4 and 7 9, and Trial Counsel Failed 

to Object to the Dismissal of these Life-Prone Jurors 

Pe ti ti oner contends that both trial counsel's failure to object 

to the dismissal of Jurors Nos. 4 and 79 and the State of Oregon's 

failure to make the juror questionnaires part of the appellate record 

excuse the default of this claim. Substantively, petitioner argues 

that Gray v. Mississippi, 481 U.S. 648, 668 (1987) establishes that 

the wrongful exclusion of these life-prone and death-qualified 

jurors is structural error that requires the automatic reversal of 

petitioner's death sentence. Accordingly, he maintains that trial 

counsel's failure to object to the removal of these jurors 

16 - ORDER 
constituted ineffective assistance of counsel. In addition, 

petitioner asserts that to the extent appellate counsel was at fault 

for failing to complete the record on appeal with the juror 

questionnaires which established that these jurors were death 

qualified, counsel rendered ineffective assistance of appellate 

counsel. 

1. Juror No. 4 (Ruth Papineau Williams) 

Petitioner contends that Juror No. 4, Williams, was an ideal 

juror for him because while she was morally opposed to the death 

penalty, she indicated that she would follow the law as instructed, 

regardless of her beliefs. Petitioner acknowledges that during voir 

dire his counsel questioned Williams about a medical condition she 

disclosed in her juror questionnaire. Williams told counsel that 

the condition required her to lie down for 30 minutes every afternoon 

or early evening. Ultimately, and upon confirming with Williams 

that she needed to lie down for 30 minutes every afternoon, the trial 

court excused her for cause as follows: 

THE COURT: I can barely -- and I may as well make the tough 

decision. We just cannot guarantee that every afternoon 

you' 11 have that 30 minutes and I appreciate that you need 

the 30 minutes and if it were a matter of one day or maybe 

two days, I could tell you we could guarantee that to you, 

uh, but beyond that I cannot. So I'm going to excuse you 

at this point. Thank you. 

17 - ORDER 
Citing The Americans with Disabilities Act ("ADA"), petitioner 

faults trial counsel with failing to affirmatively explore 

accommodation for this juror and with failing to object to the trial 

court's failure to inquire further into this juror's 

"straightforward need" and to consider whether a piece of carpet 

could have been found to accommodate Williams and/or to consider 

whether she could have lain down during a lunch break or in the "early 

evening" making it possible for her to serve. 

In addition, petitioner argues that because the wrongful 

discharge of Williams required automatic reversal of petitioner's 

death sentence and her juror questionnaire provided powerful 

evidence of her being an ideal juror, the State should have provided 

petitioner's appellate counsel with this questionnaire. Petitioner 

argues that whether appellate counsel was at fault for not requesting 

the questionnaires or the State was at fault for not providing them, 

the failure should not be attributed to petitioner and should not 

bar this Court's review of the merits of this claim. 

2. Juror No. 79 (Carol Davis) 

Petitioner contends that the trial court apparently dismissed 

Juror No. 79 for cause but that the lack of a complete and intelligible 

record makes it impossible to confirm. He notes that the record 

toward the end of jury selection reveals that Davis was previously 

excused. Petitioner maintains that there is "every indication" that 

18 - ORDER 
this death-qualified juror was improperly dismissed because of her 

reluctance to impose death, and therefore, petitioner's death 

sentence should be set aside. Petitioner further faults appellate 

counsel with failing to obtain a complete record with the juror 

questionnaires supporting a determination that Davis was death 

qualified. 

Finally, with regard to both jurors, petitioner asserts that 

PCR counsel rendered deficient and prejudicial performance because, 

without having obtained and reviewed available juror questionnaires 

supporting this claim, counsel could not have made a viable tactical 

decision to omit an ineffective assistance claim based on trial 

counsel's failure to object to these structural errors. 

Accordingly, petitioner contends Martinez excuses any default of 

this claim. 

Federal courts reviewing challenges to voir dire must defer to 

the judgment of the trial court. The Supreme Court has stressed that 

the process of jury selection falls "particularly within the province 

of the trial judge." Skilling v. United States, 561 U.S. 358, 386 

(2010) (citations and quotation omitted). 

Reviewing courts are properly resistant to 

second-guessing the trial judge's estimation of a juror's 

impartiality, for that judge's appraisal is ordinarily 

influenced by a host of factors impossible to capture fully 

in the record -- among them, the prospective juror's 

inflection, sincerity, demeanor, candor, body language, 

and apprehension of duty. 

19 - ORDER 
Id. (citing Reynolds v. United States, 98 U.S. 145, 156-57 (1879)). 

Even in death penalty cases, trial courts receive "special deference" 

because they actually observe jurors. Patton v. Yount, 467 U.S. 

1025, 1038 (1984); Wainwright v. Witt, 469 U. s. 412, 426 (1985). 

Accordingly, the Court must give due weight to the trial court's 

judgment of each juror's qualification. 

In Gray, the case petitioner relies on, the Supreme Court held 

that the exclusion of a juror in a capital case who expressed general 

reservations to capital punishment, but who could have followed the 

court's instructions and voted for the death penalty, i.e., exclusion 

of a death-qualified juror, is reversible error not subject to 

harmless error analysis. 481 U.S. at 665. However, in Ross v. 

Oklahoma, 487 U.S. 81, 87-88 (1988), the Supreme Court "decline[d] 

to extend the rule of Gray beyond its context: the erroneous 

'Witherspoon exclusion' of a qualified juror in a capital case." 5 

Instead, the Court held that so long as the jury that ultimately sits 

is impartial, the fact that the defendant had to use a peremptory 

challenge to achieve an unbiased jury does not translate into a Sixth 

5 In Witherspoon v. Illinois, 391 U.S. 510, 521-23 (1968), the 

Supreme Court concluded that it was unconstitutional to exclude a 

prospective juror who expressed scruples against the death penalty 

but who could, nevertheless, be impartial. Notably, the defendant 

in Ross argued that the loss of a peremptory challenge in and of itself 

violated his constitutional right to an impartial jury. 

20 - ORDER 
Amendment violation. Id. at 88; see also United States v. 

Martinez-Salazar, 528 U.S. 304, 317 (2000) (when a defendant elects 

to use a peremptory challenge to cure an error and is ultimately 

convicted by an impartial jury, there has been no due process 

violation) . Based on the foregoing, I conclude that because Gray 

applies only to erroneous Witherspoon exclusions, it is inapplicable 

to petitioner's claim regarding prospective Juror Williams. The 

record makes clear that the trial court excused her for cause based 

on her medical status and its determination that it could not 

guarantee her that she could lie down for thirty minutes every 

afternoon over the course of a lengthy death penalty trial. Ms. 

Williams' views on the death penalty played no role in her removal. 

Petitioner does not dispute that the jury ultimately impaneled in 

his case was impartial. Accordingly, his allegation of error with 

regard to prospective juror Williams does not implicate his 

constitutional right to a fair trial. 

With regard to prospective juror Davis, I reject petitioner's 

arguments that either Martinez or the State's or appellate counsel's 

failure to make the juror questionnaires part of the record on appeal 

excuses his default of this claim. 

First, there is an absence of any evidence in the record 

indicating that Davis was dismissed based on her death-penalty views. 

I recognize that portions of the transcript of voir dire, including 

21 - ORDER 
sections related to Davis 6 , are unintelligible (likely due to the 

difficulty of transcribing the voir dire proceedings from a 

recording) and that a record of precisely why Davis was excused 

appears to be missing altogether. Nevertheless, petitioner points 

to no evidence, and I find none, supporting his assertion that the 

trial court excused Davis for cause based on her death penalty views. 

Indeed, there is no evidence that the prosecutor challenged Davis 

for cause at all. However, the record does show that the trial court: 

(1) excused prospective juror Lora Ann Minty (12) for cause sua 

sponte based on her death penalty views; and (2) denied the 

prosecutor's challenge for cause of prospective juror Linda Schmidt 

(5), which was based primarily on her death penalty views. Notably 

too, both Minty and Schmidt were in Davis' voir dire group. See 

Transcript of Proceedings, Part B, pp. & 137-38. 

Second, my review of the available voir dire transcript reveals 

that the trial court understood the requirements of Witherspoon and 

was determined to apply the appropriate legal standard. For 

example, during voir dire, Minty and Schmidt indicated concern over 

imposing the death penalty and the trial court questioned them. In 

one exchange with Schmidt, the court stated: 

6 

of voir 

See Transcript of Proceedings, Part B, pp. 55-58 for pieces 

dire questioning pertaining to Davis. 

22 - ORDER 
We were covering many questions but we were talking 

essentially about the application of the death penalty and 

the fact that if you're in disagreement with it that's 

acceptable in a juror as long as you're able to apply the 

law and the -- in talking about the application, I was 

pointing out that you can enforce or you can apply the law 

of the death penalty even if you find that there was 

aggravated murder that was an aggravated murder that was 

committed deliberately, without provocation, and merits 

a probability of future dangerousness. Then you have to 

make the decision of shall a death sentence by imposed? 

And I was saying the only restriction on that is that it 

can't just be an arbitrary whim on your part to we' 11 I' 11 

flip a coin to decide whether it should [ ] be imposed or 

not. There has to be some reason for the mitigation and 

you can look at the evidence as carefully as you want. You 

can scrutinize it as thoroughly as you want, but if you 

don't -- if you've answered everything affirmatively and 

despite your scrutiny you can't find anything in this case 

to justify mitigation, then you can't mitigate the death 

sentence just because you are opposed to capital 

punishment. And there's a distinction there. The one is 

totally abstract. I'm opposed to the death penalty, so 

I'm going to vote against it. I'm going to mitigate it. 

The other is I'm opposed to the death penalty, but still 

I find something -- or still I'm able to find something 

other than my opposition to the death penalty that causes 

me to want to mitigate or causes me to mitigate the death 

sentence, but it could be just the opposite. You could 

be opposed to the death penalty and find nothing in the 

evidence that would cause you to mitigate and the only 

thing you could say is that [ ] I'm opposed to the death 

penalty but I see nothing here in anything that's been 

presented to me in this court room that I can point to as 

a ground to mitigate this sentence from death. And then 

you'd be required to return a [ ] death penalty verdict. 

In the end, after much discussion and questioning, Minty stated 

that she did not think she could follow the law. The trial court 

excused her. And Schmidt, despite significant equivocation, stated 

she could follow the law. As noted above, the trial court denied 

23 - ORDER 
the prosecution's for cause challenge to this juror. Accordingly, 

in the absence of any contrary evidence and even assuming Davis' 

representations during voir dire were consistent with those 

expressed in her juror questionnaire, 7 my review of the available 

transcript, including the trial court's treatment of Minty and 

Schmidt, persuades me that the trial court would not have excused 

Davis for cause based on her death penalty views. 

In addition, as noted above, I owe the trial court's judgment 

of Davis' qualification to serve on the jury special deference. See 

Woodford v. Viscotti, 537 U.S. 19 (2002) (a "readiness to attribute 

error [to the state court] is inconsistent with the presumption that 

state courts know and follow the law.") (internal citations omitted). 

Accordingly, at a minimum, in the absence of any evidence indicating 

the trial court improperly excused Davis based on her death penalty 

views and with the contextual benefit of the trial court's 

understanding of relevant legal principles coupled with examples of 

how it approached the issue with other jurors, I conclude that 

petitioner's ineffective assistance of counsel claim is not a 

substantial one under Martinez. 

7 In her questionnaire, Davis said she did not believe in taking 

someone else's life, but could understand it in some cases. While 

she thought it was a really hard question, she indicated she would 

follow the law and would not vote against the death penalty because 

of her beliefs regardless of the evidence and instructions. 

24 - ORDER 
Finally, to the extent this claim involves allegations of either 

trial court or appellate counsel error, Martinez cannot excuse its 

procedural default. Davila, 137 S. Ct. at 2063. Also, because 

there is no evidence that the trial court excused either Williams 

or Davis based on their death penalty views, petitioner cannot 

demonstrate that either the state's or his appellate counsel's 

failure to make the juror questionnaires part of the record on appeal 

prevented petitioner from complying with any procedural rule in the 

presentation of this claim to the Oregon courts. 

D. Sixteenth Claim: Cruel and Unusual Punishment 

Respondent argues that this claim is procedurally defaulted 

because petitioner failed to present each of its sub claims to the 

Oregon courts either on direct review or during his PCR proceedings. 

Petitioner maintains that these claims are not ripe for review, but 

that he presents them now to preserve them for consideration when 

and if an actual date for his execution is set. 

I agree that these claims are not ripe for review. Accordingly, 

I deny this Claim without prejudice as premature. 

E. Seventeenth Claim: Cumulative Impact of Errors 

Petitioner does not dispute respondent's contention that he 

failed to fairly present a cumulative error claim to the Oregon courts 

either on direct appeal or during his PCR proceedings. 

Nevertheless, he argues that this Court's refusal to consider this 

25 - ORDER 
claim on the merits merely because his direct appellate counsel 

failed to raise it in state court ''would be a gross violation of a 

long line of authority, and of due process of law." Reply (57), p. 

10. 8 

The Ninth Circuit has held that briefing a number of isolated 

errors that turn out to be insufficient to warrant reversal does not 

automatically require a habeas court to consider whether the 

cumulative effect of the alleged errors prejudiced the petitioner. 

Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). To the 

contrary, that court suggested that a cumulative error claim must 

be clearly identified in a petitioner's brief before a state court 

to be exhausted. Id. at 1026 (citing Solis v. Garcia, 219 F.3d 922, 

930 (9th Cir. 2000), cert. den., 534 U.S. 839 (2001)). 

Petitioner failed to exhaust this cumulative error claim by 

presenting it to the state courts and he cannot now return to the 

state courts to properly exhaust this claim. See Wooten, 540 F.3d 

at 1025-26 (finding cumulative error claim procedurally defaulted 

because it was not presented to the highest state court on appeal). 

Accordingly, federal habeas review of this claim of cumulative trial 

8 I note that the "long line of authority" petitioner 

references in his brief is to the law surrounding the validity of 

cumulative error claims generally and not to authority supporting 

his suggestion that the Court should excuse the procedural default 

of this stand-alone cumulative error claim. 

26 - ORDER 
court error is procedurally barred and I deny it with prejudice on 

that basis. Moreover, as noted above, Martinez cannot excuse the 

procedural default of any related claim due to appellate counsel 

ineffectiveness. 

CONCLUSION 

For these reasons, I resolve the issues pertaining to exhaustion 

and procedural default as follows: 

1. Petitioner has failed to establish that the following 

defaulted claims are substantial under Martinez or that 

he is otherwise entitled to have their default excused: 

Claims One, Two, Four and Seventeen. Accordingly, these 

defaulted claims are dismissed with prejudice. 

2. Claim Sixteen is not ripe for review. Accordingly, this 

claim is dismissed without prejudice as premature. 

IT IS SO ORDERED. 

I . ~/\_ this _Lf:ij_ day of January, 2018. 

/) I) t 

(AA.A.A.,.{./ Ltvld//A / 

DATED 

Ann Aiken 

United States District Judge 

27 - ORDER