MICAH IAN WAS SON, 

Petitioner, 

v. 

MARKNOOTH, 

Respondent. 

AIKEN, District Judge: 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

Case No. 2: 15-cv-02378-AA 

OPlNION AND ORDER 

Petitioner, an inmate at Two Rivers Correctional Institution, filed a petition for writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his trial counsel rendered 

ineffective assistance by failing to investigate and present expert evidence and by refusing to 

allow petitioner to testify. Petitioner also alleges that his appellate counsel rendered ineffective 

assistance by failing to raise meritorious issues on appeal. 

Respondent contends that two of petitioner's claims are procedurally defaulted and the 

remaining claim was denied in a state court decision entitled to deference. For the reasons 

explained below, the petition is denied. 

Page 1 - OPlNION AND ORDER 
BACKGROUND 

After trial by jury, petitioner was convicted of four counts of Assault in the Third 

Degree, two counts of Assault in the Second Degree, and one count each of Driving Under the 

Influence and Assault in the Fourth Degree. Resp't Exs. 101-02, 104 at 189-90. Petitioner's 

convictions arose from an automobile collision that caused severe iqjuries to occupants of 

another vehicle. Resp't Ex. 103 at 114-117, 127, 129-131. At sentencing, the trial court imposed 

sentences totaling 146 months' imprisonment. Resp't Ex. 104 at 210-12. 

Petitioner directly appealed his conviction and asserted trial court error. Resp't Exs. 105, 

l 08. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court 

denied review. Resp't Exs. I 09-1 O; State v. Wasson, 234 Or. App. 785, 230 P .3d 126, rev. 

denied, 348 Or. 669, 237 P.3d 824 (2010). Petitioner subsequently filed a petition for postconviction relief (PCR) alleging ineffective assistance of counsel, and the PCR trial court denied 

the petition. Resp't Exs. 111, 119-20. The Oregon Court of Appeals affirmed without opinion, 

and the Oregon Supreme Court denied review. Resp't Exs. 124-25; Wasson v. Persson, 271 Or. 

App. 378, 353 P.3d 618, rev. denied, 357 Or. 596, 358 P.3d 1002 (2015). 

On December 21, 2015, petitioner filed his federal habeas action under 28 U.S.C. § 2254. 

DISCUSSION 

Respondent argues that petitioner is not entitled to federal habeas relief, because two of 

his claims are unexhausted and procedurally defaulted and his remaining claim was denied by a 

state court decision that is entitled to deference. 28 U.S.C. § 2254(b),(d). 

A. Exhaustion and Procedural Default 

In Grounds One and Three, petitioner alleges that his trial counsel failed to investigate 

and present expert evidence and his appellate counsel failed to raise meritorious issues on appeal. 

Page 2 - OPINION AND ORDER 
Pet. at 4-7, 9-10 (ECF No. 2). Respondent argues that petitioner has procedurally defaulted on 

these claims because he failed to present them to the Oregon Supreme Court. I agree. 

A state habeas petitioner must exhaust all available state court remedies - either on direct 

appeal or through collateral proceedings - before a federal court may consider granting habeas 

corpus relief. 28 U.S.C. § 2254(b)(l)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). To 

meet the exhaustion requirement, the petitioner must "fairly present" a federal claim to the 

State's highest court "in order to give the State the opportunity to pass upon and to correct 

alleged violations of its prisoners' federal rights." Duncan v. Ilemy, 513 U.S. 364, 365-66 (1995) 

(per curiam) (citation and quotation marks omitted); Cooper v. Neven, 641F.3d322, 326 (9th 

Cir. 2011) ("Exhaustion requires the petitioner to 'fairly present' his claims to the highest court 

of the state."). "A petitioner fully and fairly presents a claim to the state courts ifhe presents the 

claim(!) to the correct forum; (2) through the proper vehicle; and (3) by providing the factual 

and legal basis for the claim." Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam) 

(citations omitted). 

If a claim was not fairly presented to the state courts and no state remedies remain 

available for the petitioner to do so, the claim is barred from federal review through procedural 

default. See Coleman v. Thompson, 50 I U.S. 722, 732, 735 n.1 (1991 ); Sandgathe v. M~aass, 314 

F.3d 371, 376 (9th Cir. 2002) ("A procedural default may be caused by a failure to exhaust 

federal claims in state court."). A federal court may consider unexhausted and procedurally 

barred claims only if the petitioner demonstrates cause for the default and actual prejudice, or if 

the lack of federal review would result in a "fundamental miscarriage of justice." Edwards v. 

Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 750. 

Page 3 - OPINION AND ORDER 
In his state PCR petition, petitioner asserted various claims of ineffective assistance of 

trial counsel and included the claim raised in Ground One, but he did not allege the claim in 

Ground Three. 1 Resp't Ex. 111 at 4-5 (alleging claims of inadequate investigation and failure to 

advise petitioner of his right to testify). Regardless, petitioner raised neither Ground One nor 

Ground Three on PCR appeal. Resp'! Ex. 121 at 6 (raising ineffective assistance of counsel 

claim based on the failure to "ensure a knowing waiver of petitioner's right to testify"). 

Accordingly, petitioner did not present Grounds One and Three to Oregon's highest court, and 

petitioner has no available avenue for exhaustion. Or. Rev. Stat.§§ 138.071(1), 138.650(1); Or. 

R. App. P. 5.45(1) (assignment of errors not raised or argued are waived). Therefore, these 

claims are unexhausted and procedurally barred, and petitioner presents no argument to support 

cause and prejudice or a fundamental miscarriage of justice. Sandgathe, 314 F.3d at 376. 

B. Ineffective Assistance of Trial Counsel 

In Ground Two, petitioner asserts that trial counsel rendered ineffective assistance by 

failing to advise petitioner about his right to testify and refusing to allow petitioner to testify in 

his defense. Pet. at 7-9 (ECF No. 2); Strickland v. Washington, 466 U.S. 668 (1984). 

Specifically, petitioner alleges that counsel advised that he not testify, because petitioner could 

have been subject to impeachment based on a letter he sent to the trial court which included a 

false statement. Pet. at 8; Resp'! Ex. 112 at 6-7.2 The PCR court rejected this claim, and 

respondent maintains that the PCR court's decision is entitled to deference. 

1

Petitioner could not raise ineffective assistance claims on direct appeal; Oregon requires 

ineffective assistance of counsel claims to be raised in a PCR proceeding. Ross v. Taylor, 2016 

WL 5799299, at *3 (D. Or. Sept. 30, 2016) (citing State v. Robinson, 25 Or. App. 675, 550 P.2d 

758 (1976) and Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012)). 

2 Petitioner had suffered a black eye as a result of a "fist fight," and in seeking a 

continuance of trial, he falsely represented to the trial court that his injury resulted from a 

snowboarding accident. Pet. at 8-9; Resp'! Ex. 114. 

Page 4 - OPINION AND ORDER 
A federal court may not grant a habeas petition regarding any claim "adjudicated on the 

merits" in state court, unless the state court ruling "was contrary to, or involved an unreasonable 

application of, clearly established Federal law." 28 U.S.C. § 2254(d)(l). A state court decision is 

"contrary to" established federal law if it fails to apply the correct Supreme Court authority, or if 

it reaches a different result in a case with facts "materially indistinguishable" from relevant 

Supreme Court precedent. Brown v. Pay/on, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 

U.S. 362, 405-06 (2000). A state court decision is an "unreasonable application" of clearly 

established federal law if the state court identifies the correct legal principle but applies it in an 

"objectively unreasonable" manner. Woodford v. Visciotli, 537 U.S. 19, 24-25 (2002) (per 

curiam); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per 

curiam) (state court decisions that are not "contrary to" Supreme Court precedent may be set 

aside only "if they are not merely erroneous, but 'an unreasonable application' of clearly 

established federal law, or are based on 'an unreasonable determination of the facts."'). "A state 

court's determination that a claim lacks merit precludes federal habeas relief so long as 

'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. 

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). 

Under well-established Supreme Court precedent, a prisoner alleging ineffective 

assistance of counsel must show that 1) "counsel's performance was deficient," and 2) counsel's 

"deficient performance prejudiced the defense." Sirickland, 466 U.S. at 687. "Unless a defendant 

makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the 

adversary process that renders the result unreliable." Id. Judicial review of an attorney's 

performance under Strickland is "highly deferential" and carries a "strong presumption that 

counsel's conduct falls within the wide range of reasonable professional assistance," which, 

Page 5 - OPINION AND ORDER 
under the relevant circumstances, "might be considered sound trial strategy." Id at 689 (citation 

omitted). 

Here, the PCR court rejected plaintiffs claim of ineffective assistance, finding that 

counsel likely informed petitioner of the "real problems" with testifying and that petitioner 

willingly chose to follow his counsel's advice. Resp't Ex. 119 at 27-28. The record supports the 

reasonableness of the PCR court's ruling. 

During PCR proceedings, trial counsel submitted an affidavit and attested that he and 

petitioner discussed, "at length, whether petitioner would testify at trial." Resp't Ex. 118 at 2. 

Counsel stated that his "standard practice" was to inform clients "that the choice [whether to 

testify] is entirely up to them." Id. Counsel explained that petitioner had provided his version of 

events to other witnesses, and counsel could elicit petitioner's version of events without calling 

him to testify. Id. Counsel further stated that he did not remember telling petitioner he could be 

impeached with the letter to the trial court. Id. at I. 

The PCR court determined that counsel "was able to get in petitioner's account of the 

accident through the state's witnesses." Resp't Exs. 119 at 27, 120 at 2. Moreover, the PCR court 

found that trial counsel likely had discussed the "real problems with the client"; namely, that 

petitioner would have been vulnerable to cross-examination about his .225 blood alcohol content 

(BAC) an hour after the crash, his .14 BAC over three-hours after the crash, and the beer found 

in his car. Resp't Exs. 119 at 28, 120 at 2; see also Resp't Ex. 103 at 139-40, 225, Ex. 104 at 8, 

83. The PCR noted, "How petitioner could testify in light of that, it was going to be really 

difficult." Resp't Ex. 119 at 28. The PCR court also found that petitioner could have been crossexamined regarding his prior DUII convictions and his failed treatment attempts to "show that 

this man hadn't taken this thing seriously for four convictions." Resp't Exs. 119 at 28, 120 at 2. 

Page 6 - OPINION AND ORDER 
Ultimately, the PCR court concluded, "There's just nothing the petitioner could have said that 

would have helped his case. The real risk is that he would have hurt his case. The petitioner 

made the choice." Resp'! Exs. 119 at 28. 

Given the evidence against plaintiff and the risks associated with cross-examination, 

counsel's advice against testifying could "be considered sound trial strategy," and the PCR court 

reasonably found no deficiency of performance or resulting prejudice. See Strickland, 466 U.S. 

at 689; see also Richter, 562 U.S. at IOI (on habeas review, a state court decision "must be 

granted a deference and latitude that are not in operation when the case involves review under 

the Strickland standard itself'). In sum, the PCR court's decision was neither contrary to nor an 

unreasonable application of clearly established federal law. 

CONCLUSION 

The Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED and this case is 

DISMISSED with prejudice. A Certificate of Appealability should be denied on the basis that 

petitioner has not made a substantial showing of the denial ofa constitutional right pursuant to 

28 U.S.C. § 2253(c)(2). 

DATED this G~f June, 2017. 

AnnAiken 

United States District Judge 

Page 7 - OPINION AND ORDER