1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DOMINIC BAILEY,

Case No. 2:15-cv-01423-HZ

Petitioner,

OPINION AND ORDER

v.

JOHN MYRICK,

Respondent.

Susan F. Wilk

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

Samuel A. Kubernick, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

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 2 – OPINION AND ORDER

HERNANDEZ, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his Marion County Rape

convictions. For the reasons that follow, the Amended Petition 

for Writ of Habeas Corpus (#14) is denied.

BACKGROUND

Some of the pertinent background facts of this case are set 

out by the post-conviction court’s General Judgment:

Until 8 years of age, LF lived with her 

mother and siblings. Her mother, at that 

point, was already neglecting the children, 

doing drugs, not making them go to school, 

and [had] become involved with Petitioner. LF 

was removed at age 8, and returned to her 

mother at 9 years of age. Her mother married 

Petitioner. They moved to an apartment 

complex off Salem Heights, and Petitioner’s 

family also lived in the same complex, so he 

was in and out of both apartments.

LF didn’t like Petitioner. On an afternoon 

where she had earlier been at a friend’s 

home, she came home, and the only other 

person in the apartment was Petitioner. She 

went to her room and was on her bed when 

Petitioner came in, pushed her on the bed, 

restrained her, and removed her underwear. 

She cried and screamed, and he said to be 

quiet or he’d hurt her. He had vaginal 

intercourse with her, and told her not to 

tell or he’d kill her and her mother. He then 

left. She was 11 years old. She believed the 

threat and didn’t tell anyone.

Weeks after this happened, she was placed 

into foster care and never went back to live 

with her mother. Her mother eventually 

relinquished her parental rights. When [LF]

was in a good foster home and in counseling, 

she disclosed the event. At that point, 

Petitioner was in jail. 

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Respondent’s Exhibit 129, p. 1. 

As a result of the foregoing, the Marion County Grand Jury 

indicted Petitioner on two counts of Rape in the First Degree. 

During the ensuing trial, Petitioner’s trial attorney crossexamined the detective assigned to the case, Sean Kelly. 

Counsel’s cross-examination of Detective Kelly included the 

following exchange:

Q: Now, October 12 of 2011, so last fall, 

you interviewed [Petitioner], right?

A. Yes, I did.

Q. Did he confess that he did this?

A. No.

Q. Strongly disagreed with that, right?

A. Yes, he did.

Q. No further questions.

Respondent’s Exhibit 102, p. 130.

At this point, the prosecutor advised the judge that she had 

a matter for the court. Once the judge excused the jury, and 

after defense counsel interjected that she had no witnesses to 

present, the State announced its intention to offer Petitioner’s 

prior felony convictions for impeachment purposes pursuant to 

State v. Dishman,1 148 Or. App. 404, 939 P.2d 1172 (1997), a case 

with which defense counsel was unaware:

 

1 Pursuant to OEC 806, “When a hearsay statement . . . has been admitted in 

evidence, the credibility of the declarant may be attacked, and if attacked, 

may be supported by any evidence which would be admissible for those purposes 

if the declarant had testified as a witness.” Dishman applied this rule to 

out-of-court statements of criminal defendants even where those defendants 

elected not to testify at their trials. 148 Or. App. at 406-07.

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State: Your Honor, it’s the State’s 

intention to now offer the defendant’s prior 

impeachable felony convictions and proffer to 

the Court State v. Dishman which basically 

indicates that if the defense elicits 

statements by the defendant, that those 

statements are subject to the same type of 

cross-examination and impeachment that they 

would be subject to had the defendant chosen 

to testify. And I’d like to give the Court an 

opportunity to read State v. Dishman.

Court: Do you have a copy for [defense 

counsel]?

State: No. I’m sorry, my trial notebook 

just has the case. 

Court: Just has this. Okay.

State: I’m sure you’re familiar with State 

v. Dishman.

Defense: No. 

Id at 131-32. 

The trial judge took a recess to review the applicable law

and, when he returned, allowed the parties to orally argue the 

issue. Following argument, the judge expressed his concern “that 

the defendant has a state and constitutional right not to 

testify, and that that one statement . . . is such a sliver when 

you’re balancing the two, his constitutional right with the 

State’s right, to impeach a witness with prior convictions it 

seems like it’s so prejudicial.” Id at 136. The trial judge noted 

that Petitioner had already entered a plea of not guilty, and 

that the court had made the jury aware of the plea such that the 

hearsay testimony at issue did not divulge information of which 

the jury was otherwise unaware. Because the issue arose on a

Friday afternoon, the judge permitted the parties to develop 

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briefing on this “important issue” issue over the weekend. Id at 

139. Before court adjourned, defense counsel reiterated that she 

did not intend to present any witnesses. Id. 

When the trial resumed on Monday morning, defense counsel

withdrew her objection to the admission of Petitioner’s prior 

convictions for purposes of impeaching the hearsay testimony. 

Specifically, counsel advised the Court, “We withdraw the motion 

and believe that the prior conviction judgments can come in and 

[Petitioner] is planning to testify so that would render the 

whole issue moot anyway.” Id at 147. Accordingly, the judge 

allowed the State to admit Petitioner’s prior convictions for 

purposes of impeachment pursuant to OEC 609, and the State 

introduced Petitioner’s prior judgments for Failure to Register 

as a Sex Offender, Theft in the Second Degree, Unauthorized Use 

of a Vehicle, Felony Eluding, Felon in Possession of a firearm, 

Assault in the Third Degree, and Burglary in the Second Degree. 

Respondent’s Exhibit 103, pp. 7-8.

When the defense called Petitioner to testify, counsel noted 

that one of his convictions was for failing to register as a sex 

offender. She then asked, “how old were you when you became a sex 

offender?” Id at 19. Petitioner estimated that he was 14 years of 

age at the time, and stated that he was enrolled in middle school 

at the time. Id. Counsel did not pursue that matter further, and 

Petitioner flatly denied ever doing anything of a sexual nature 

to LF. He stated, “It never happened, I didn’t do it. Never took 

place.” Id at 20. 

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The jury convicted Petitioner on both counts, and the court 

merged Petitioner’s convictions and imposed a 300-month sentence.

Petitioner directly appealed his sentence asserting that it 

amounted to cruel and unusual punishment. Respondent’s Exhibit 

105. The Oregon Court of Appeals summarily affirmed the trial 

court’s sentence, and the Oregon Supreme Court denied review. 

Respondent’s Exhibits 115 & 116. 

Petitioner next filed for post-conviction relief (“PCR”) in 

Umatilla County, but voluntarily dismissed that case without 

prejudice. Respondent’s Exhibits 111-114. Thereafter, he 

initiated the current action which the Court subsequently stayed

so Petitioner could proceed with a second PCR action in Umatilla 

County where he alleged, in part, that his trial attorney was 

ineffective with respect to her cross-examination of Detective 

Kelly and her handling of the admission of his prior judgments. 

The PCR court denied relief on all of Petitioner’s claims. 

Respondent’s Exhibit 129. The Oregon Court of Appeals affirmed 

that decision without issuing a written opinion, and the Oregon 

Supreme Court denied review. Respondent’s Exhibits 133 & 134. 

On August 13, 2019, this Court lifted the stay in this 28 

U.S.C. § 2254 habeas corpus case and Petitioner, with the 

assistance of appointed counsel, filed an Amended Petition that 

raises two grounds for relief. Ground One consists of a claim of 

trial court error based upon the admission of Petitioner’s prior 

judgments of conviction. Ground Two contains 11 sub-claims and 

faults the performance of trial counsel with respect to the 

admission of the prior conviction evidence, purported 

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deficiencies with the voir dire proceedings and within the 

Indictment, counsel’s purported failure to properly investigate 

the case, and her failure to move for a judgment of acquittal. 

Respondent asks the Court to deny relief on the Petition because: 

(1) Petitioner argues only a portion of Ground Two, and he has 

not sustained his burden of proof with respect to his unargued 

claims; and (2) the PCR court’s decision with respect to the 

argued claims was not objectively unreasonable. 

DISCUSSION

I. Standard of Review

An application for a writ of habeas corpus shall not be 

granted unless adjudication of the claim in state court resulted 

in a decision that was: (1) "contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States;" or 

(2) "based on an unreasonable determination of the facts in light 

of the evidence presented in the State court proceeding." 28 

U.S.C. § 2254(d). A state court decision is "contrary to . . . 

clearly established precedent if the state court applies a rule 

that contradicts the governing law set forth in [the Supreme 

Court's] cases" or "if the state court confronts a set of facts 

that are materially indistinguishable from a decision of [the 

Supreme] Court and nevertheless arrives at a result different 

from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 

(2000). 

Under the "unreasonable application" clause of § 2254(d)(1), 

a federal habeas court may grant relief "if the state court 

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identifies the correct governing legal principle from [the 

Supreme Court's] decisions but unreasonably applies that 

principle to the facts of the prisoner's case." Id at 413. The 

"unreasonable application" clause requires the state court 

decision to be more than incorrect or erroneous. Id at 410.

Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the 

writ in cases where there is no possibility fairminded jurists 

could disagree that the state court's decision conflicts with 

[the Supreme] Court's precedents. It goes no farther." 

Harrington v. Richter, 562 U.S. 86, 102 (2011). 

Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to 

“challenge the substance of the state court’s findings and 

attempt to show that those findings were not supported by 

substantial evidence in the state court record.” Hibbler v. 

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas 

court cannot overturn a state court decision on factual grounds 

“unless objectively unreasonable in light of the evidence 

presented in the state-court proceeding.” Miller-El v. Cockrell, 

537 U.S. 322, 340 (2003). This is a “‘daunting standard—one that 

will be satisfied in relatively few cases,’ especially because we 

must be ‘particularly deferential to our state-court 

colleagues.’” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 

2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 

2004)). 

II. Unargued Claims

In this case, Petitioner argues that his trial attorney was 

constitutionally ineffective when, due to her ignorance of the 

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law, she allowed evidence of Petitioner’s prior convictions to be 

admitted at trial and elicited damaging testimony from him.2

Where Petitioner does not argue the merits of his remaining 

claims, he has not carried his burden of proof with respect to 

these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 

(9th Cir. 2002) (Petitioner bears the burden of proving his 

claims). Even if Petitioner had briefed the merits of these 

claims, the Court does not find from its review of the record 

that the unargued claims would entitle Petitioner to relief. 

III. Ineffective Assistance of Counsel

Petitioner argues that counsel’s handling of the prior 

conviction evidence was not competent such that he is entitled to 

a new trial. The Court uses the general two-part test established 

by the Supreme Court to determine whether Petitioner received 

ineffective assistance of counsel. Knowles v. Mirzayance, 556 

U.S. 111, 122-23 (2009). First, Petitioner must show that his 

counsel's performance fell below an objective standard of 

reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 

(1984). Due to the difficulties in evaluating counsel's 

performance, courts must indulge a strong presumption that the 

conduct falls within the "wide range of reasonable professional 

assistance." Id at 689. 

Second, Petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

 

2 Petitioner fails to identify in his briefing which of the claims from his 

Amended Petition he chooses to argue. Respondent believes that Petitioner 

argues Grounds Two(A-C), a characterization with which Petitioner does not

disagree. This leaves Grounds One and Two(D-K) unargued.

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whether Petitioner can show "that there is a reasonable 

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

result of the proceeding would have been different." Id at 694. 

A reasonable probability is one which is sufficient to undermine 

confidence in the outcome of the trial. Id at 696. When 

Strickland's general standard is combined with the standard of 

review governing 28 U.S.C. § 2254 habeas corpus cases, the result 

is a "doubly deferential judicial review." Mirzayance, 556 U.S. 

at 122.

During Petitioner’s PCR proceedings, trial counsel submitted 

a Declaration in which she explained her rationale surrounding 

the admission of the criminal history evidence:

2. Petitioner alleges that I erroneously 

opened the door to evidence related to his 

prior criminal history because I asked the 

law enforcement officer about petitioner’s 

denial that he committed the crimes for which 

he was charged.

3. When I asked that series of questions to 

the officer, it was done in the heat of the 

moment. I was just hoping to slip it in.

4. When the court gave us time over the 

weekend to brief the issue of whether or not 

petitioner’s prior convictions should come 

in, I was prepared to do that and to present 

my argument on undue prejudice.

5. However, petitioner decided that he did 

want to testify, after all. Petitioner was a 

challenging client. Prior to and during trial 

he had gone back and forth on whether he 

wanted to testify. Ultimately, after 

considering it for the weekend, he decided 

that he wanted to testify.

6. In my discussions with petitioner, 

petitioner seemed to think the jury would not 

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hold his past against him, and that such a 

concern was not something to worry about.

7. This was similar to his thinking that 

if, during the time frame of the charges, he 

lived for part of that time with a woman 

other than the child’s mother, and that part 

of the time he was in custody, that that 

would prove he could not have had contact 

with the child. But there never was an alibi 

for the whole time frame where contact with 

the child was impossible, and that did not 

seem to concern him, either.

8. It was evident to me from our 

conversations that petitioner was just 

certain that if he said he did not do it, he 

would be believed. It was like he thought the 

jury would find him so charming they would 

never doubt his word. He would get angry when 

I tried to disabuse him of such ideas. 

9. Whether or not petitioner testified was 

always up to the petitioner, and I informed 

petitioner of his control over this choice. I 

always tell my clients that if they testify, 

their criminal history, as to felonies and 

some misdemeanors, will come in. I tell them 

that the purpose of the criminal history 

coming in is to challenge their credibility, 

so if they testify, they can explain the 

circumstances if they want to, so the jury 

might not think it is so bad.

10. I also tell my clients, including 

petitioner, that juries often want to hear

from the defendant that they did not do the 

thing they are accused of.

11. Because petitioner elected to testify, I 

presented no argument that his prior 

impeachable convictions should not come in. 

There was no reason to do so.

12. We had already agreed with the state to 

stipulate to jail records showing that 

petitioner was in custody at certain times. 

This was part of the alibi defense that we 

presented. The jury was going to know, 

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pursuant to that defense, that petitioner had 

prior convictions. 

13. Petitioner insisted on using these jail 

records. He knew that doing so would mean 

that the jury would know that he had a 

criminal record. I told him that those times 

in custody would not explain his whereabouts 

on other times, and that the jury could think 

he had access to the child when he was out of 

custody. He still insisted on presenting to 

the jury this evidence of his time in jail. 

Respondent’s Exhibit 127, pp. 1-3.

The PCR court found counsel’s Declaration to be credible. It

concluded that given Petitioner’s intent to testify, “there was 

no good reason for trial counsel to continue her objections to 

the prior convictions coming in” and that counsel “acted 

reasonably in withdrawing her objection to the impeachment 

evidence.” Respondent’s Exhibit 129 p. 3. With respect to 

counsel’s questions to Detective Kelly that potentially opened 

the door to the admission of Petitioner’s criminal history, the 

PCR court found:

Although it appears that trial counsel was 

not familiar with State v. Dishman, 

Petitioner has not proven that a reasonable

attorney familiar with Dishman, would not 

have asked the same questions. The state had 

offered its case including the testimony of 

LF. If Petitioner had not testified, as 

originally indicated, there would have been 

no evidence before the jury that Petitioner 

was denying the events unless it was 

solicited from Detective Kelly. The trial 

judge did not rule that the questions opened 

the door to the introduction of Petitioner’s 

criminal history and reserved ruling until

the parties could brief the issue over the 

weekend. The issue became moot when 

Petitioner chose to testify. 

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Petitioner has also failed to prove 

prejudice. Because Petitioner chose to 

testify, the issue of the admission of 

Petitioner’s prior criminal history became 

moot. They were admissible when Petitioner 

testified. There is no evidence that the 

potential introduction of the criminal 

history had any impact o[n] Petitioner’s 

decision to testify. 

Id at 3-4. 

Petitioner asserts that this decision not only contained an 

unreasonable determination of the facts, but was contrary to, and 

an unreasonable application of, clearly established Supreme Court 

precedent. He contends that the PCR court “contrived” a strategic 

reason for counsel’s questions by envisioning a scenario where an 

attorney familiar with Dishman might have asked Detective Kelly 

the same questions, and that it overlooked the fact that his 

decision to testify was not knowing and voluntary because counsel 

had already opened the door to the admission of his criminal 

history. He maintains that counsel was ignorant of the Dishman 

precedent that was 15 years old at the time of trial, and 

proceeded to cover her tracks by having her client testify 

despite twice previously advising the trial court that the 

defense would be presenting no witnesses.3

Counsel’s performance was lacking where she failed to

understand that eliciting hearsay statements of her client’s 

innocence potentially had the effect of opening the door to his

 

3 Petitioner also argues that counsel was ineffective for inquiring at what 

age Petitioner became a sex offender, but he did not fairly present such a 

claim during his PCR proceedings, leaving it procedurally defaulted. See Rose 

v. Lundy, 455 U.S. 509, 519 (1982); see also Respondent’s Exhibits 118, 130,

132. Petitioner’s assertion that such a claim is somehow subsumed within the 

claims he did argue is not persuasive because he did not give Oregon’s state 

courts a fair opportunity to address this claim.

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criminal history. The PCR court did not find to the contrary, and 

instead concluded that Petitioner was not entitled to relief for 

two reasons: (1) a reasonable attorney familiar with Dishman

might ask the same questions; and (2) Petitioner’s decision to 

testify was a voluntary one, and mooted the evidentiary issue. 

Even assuming (without deciding) that the PCR court was 

wrong in its determination that an attorney familiar with Dishman 

might ask the same questions of Detective Kelly, the record 

reveals that Petitioner testified voluntarily and without regard 

to a potentially adverse evidentiary ruling. Petitioner’s primary 

contention is that he could not have made his decision to testify 

knowingly and voluntarily where his attorney had potentially 

opened the door to the admission of his criminal history through 

her own error, and where the trial court had not yet issued a 

ruling on the admissibility of his criminal history.4 The record 

in this case, however, does not support his argument and, 

instead, establishes that Petitioner elected to testify 

voluntarily. 

Counsel’s Declaration revealed that Petitioner had “gone 

back and forth” both before and during trial about whether to 

testify, ultimately concluded that the jury would find him 

 

4 The trial judge appeared skeptical that the prior conviction evidence would 

be admissible because the statements elicited from Detective Kelly did not 

appear to tell the jury anything it did not already know, while an evidentiary

ruling in the State’s favor would allow the admission of evidence that was “so 

prejudicial” to the defense. Respondent’s Exhibit 102, p. 136. Despite the 

judge’s clear reservations about the admissibility of the evidence, Petitioner 

nevertheless elected to testify. These actions are consistent with counsel’s 

Declaration that Petitioner did not believe the jury would hold his prior 

convictions against him, especially in light of what he believed would be his 

own compelling testimony.

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credible despite his criminal history if he testified, and became

angry with counsel when she tried to disabuse him of what she 

perceived to be overly optimistic thinking. Respondent’s Exhibit 

127. Not only did the PCR court find this Declaration to be 

credible, but Petitioner presented no countervailing evidence on 

this point leading the PCR court to find that “[t]here is no 

evidence that the potential introduction of the criminal history 

had any impact o[n] Petitioner’s decision to testify.” 

Respondent’s Exhibit 129, p. 4. These were not unreasonable 

findings, and the fact that counsel had advised the trial court 

prior to the weekend recess that the defense would not be 

presenting any witnesses is insufficient to overcome the 

findings. Taking the findings as true, Petitioner fails to 

establish that he suffered prejudice where he voluntarily decided 

to testify in his own defense, thereby opening the door to his 

criminal history for impeachment purposes. For all of these 

reasons, Petitioner is not entitled to habeas corpus relief.

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CONCLUSION

For the reasons identified above, the Amended Petition for 

Writ of Habeas Corpus (#14) is denied. The Court does, however, 

issue a Certificate of Appealability on the Ground Two(A-C) 

ineffective assistance of counsel claims he argues in his 

briefing.

IT IS SO ORDERED.

DATED this day of June, 2020.

 

_______________________________

Marco A. Hernandez

United States District Judge

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