UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

BOB EUGENE WEST, JR., Case No. 2:15-cv-00138-AA 

Petitioner, 

v. 

MARK NOOTH, Superintendent 

Snake River Correctional Inst. 

Respondent. 

AIKEN, District Judge: 

OPINION AND ORDER 

Petitioner filed an Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, 

challenging his sexual abuse convictions on grounds that his counsel rendered ineffective 

assistance at trial. For the reasons discussed below, the petition is denied. 

BACKGROUND 

In November 2005, after trial by jury, petitioner was convicted of six counts of Sexual 

Abuse in the First Degree, four counts of Sodomy in the First Degree, and one count of 

1 - OPINION AND ORDER 
Attempted Sodomy in the First Degree. Resp't Ex. 101. The charges arose from petitioner's 

abuse of his twin sons when they were approximately ten years old. Resp't Ex. 102; Transcript of 

Proceedings (Tr.) 41. 

After the State presented last its witness at trial, the trial court asked petitioner's counsel 

whether petitioner would be testifying. Trial counsel answered that petitioner would not be 

testifying. Tr. 733. Following closing statements, the jury returned guilty verdicts on all counts. 

Tr. 848-51; Resp't Ex. 101. 

At sentencing, petitioner maintained that the accusations were false and the witness 

testimony was contradictory. He continued, "And the only way that I could - I could even 

possibly defend myself is by being on that stand, which we all know I never got there." Tr. 869. 

When the trial court responded, "And I presume that's because of your six prior felony 

convictions and your four misdemeanors," petitioner replied, "No. Actually, I was willing to get 

on the stand." Tr. 869. Ultimately, the trial court imposed 100-month consecutive sentences on 

each conviction for Sodomy; a 45-month consecutive sentence on the conviction for Attempted 

Sodomy; and 75-month sentences on each conviction for Sexual Abuse, with two of the 

sentences to be served consecutively. Tr. 870-71. In all, the trial court imposed a total of 595 

months' imprisonment. Tr. 871; Resp't Ex. 101. 

On direct appeal, petitioner asserted that the trial court committed error by "failing to 

obtain a personal, unequivocal waiver of defendant's right to testify" and by "imposing 

consecutive sentences." Resp't Ex. 103 at 10, 14. The Oregon Court of Appeals affirmed without 

opinion, and the Oregon Supreme Court denied review. Resp't Exs. 106-07. 

Petitioner filed a petition for post-conviction relief (PCR) alleging seventy-two claims for 

relief. Resp't Ex. 108. The PCR court issued findings of fact and denied relief. Resp't Ex. 175. 

2 - OPINION AND ORDER 
Petitioner appealed the PCR court's ruling and asserted forty-nine assignments of error. Resp't 

Ex. 177. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court 

denied review. Resp't Exs. 180-81. 

On January 26, 2015, petitioner filed a federal petition seeking habeas relief. 

Subsequently, petitioner was appointed counsel, and on January 30, 2016, he filed an amended 

habeas petition. 

DISCUSSION 

In his amended petition, petitioner asserts thirty-eight grounds for relief. (ECF No. 29) 

However, petitioner's counseled brief addresses only Ground 20, and his prose brief appears to 

argue only Grounds 2, 5, 6, 7, 8, 9, and 23-27. (ECF Nos. 46, 62) With respect to his remaining 

grounds, petitioner submits no argument and fails to meet his burden of showing that he is 

entitled to habeas relief. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas 

petitioner bears the burden of proving his claims). 

With respect to the claims that were briefed, respondent argues that petitioner failed to 

fairly present the federal nature of his claims to the Oregon courts, and they are unexhausted and 

procedurally barred as a result. Alternatively, respondent argues that the PCR court's decision 

rejecting these claims was reasonable and entitled to deference. Regardless of exhaustion, I find 

that petitioner is not entitled to habeas relief. See 28 U.S.C. § 2254(b)(2) ("An application for a 

writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to 

exhaust the remedies available in the courts of the State."). 

The PCR court rejected petitioner's claims of ineffective assistance of trial counsel on 

their merits, and that decision was affirmed. Resp't Ex. 175. A federal court may not grant a 

habeas petition regarding any claim "adjudicated on the merits" in state court, unless the state 

3 - OPINION AND ORDER 
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. 

Payton, 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. Visciotti, 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."'). 

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

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

"deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. "The proper 

measure of attorney performance remains simply reasonableness under prevailing professional 

norms." Id at 688. With respect to prejudice, the "defendant must show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine confidence in the 

outcome." Id at 694. "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 at 687. 

4 - OPINION AND ORDER 
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, under the relevant circumstances, "might be considered sound 

trial strategy." Id. at 689 (citation omitted); see also Harrington v. Richter, 562 U.S. 86, 101 

(2011) (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 Ground 20, petitioner alleges that trial counsel was ineffective by failing to properly 

advise petitioner about his right to testify and failing to prepare him to testify. In rejecting this 

claim, the PCR court found that petitioner "was told of his right to testify and that it was his 

choice although [trial counsel] recommended against it. [Petitioner] made his choice freely [and] 

voluntarily after the state closed its case. [Petitioner] did not disagree when [trial counsel] told 

[the trial court] he would not testify." Resp't Ex. 175 at 2. "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." Richter, 562 U.S. 101 (quoting Yarborough v. 

Alvarado, 541 U.S. 653, 664 (2004)). In this case, the record supports the reasonableness of the 

PCR court's decision. 

After reviewing counsel's affidavits and hearing petitioner's testimony, the PCR found 

that petitioner was informed of his right to testify and ultimately agreed that he should not 

testify. See Resp't Exs. 170-71, 174 at 82, 175 at 2. In his PCR affidavits, trial counsel indicated 

that petitioner's "criminal history was too poor to enable him to testify on the witness stand." 

Resp't Ex. 170 at 2. While petitioner still wanted to testify at the beginning of trial, counsel 

stated that he changed his mind as the trial progressed and confirmed that he did not want to 

5 - OPINION AND ORDER 
testify when the State rested its case. Resp't Ex. 171. As the PCR court noted, petitioner did not 

indicate any disagreement when counsel informed the trial court that petitioner would not testify. 

Petitioner concedes that a defendant's "silence at trial" may effectively waive "his right 

to testify on his own behalf." United States v. Edwards, 897 F.2d 445, 446-47 (9th Cir. 1990). 

Here, however, petitioner maintains that trial counsel suggested in his opening statement that 

petitioner would take the stand, and as a result, the record must show that petitioner "was 

informed about the consequence of not testifying in light of such a suggestion that he would." 

Pet'r Br. at 17. Petitioner relies on the following statements made by trial counsel: 

I submit to you what you'll find, when you've heard all of the evidence, is that the 

symptoms that the State points out also are relevant and appropriate to essentially 

the dissolution of a dysfunctional family. And that's what causes the allegations, 

and Mr. West tells you that those are false. 

Tr. 48. I am not persuaded. 

Counsel's opening statement did not suggest that petitioner was going to testify. Counsel 

did not state that "Mr. West will tell you ... ," or "Mr. West will testify that ... ," or otherwise 

indicate that the jury should expect petitioner to testify. Rather, counsel spoke in the present 

tense, "Mr. West tells you [those allegations] are false," indicating that counsel was simply 

speaking on petitioner's behalf during opening argument. Tr. 48. Nothing in this record suggests 

that counsel failed to advise petitioner about his right to testify. 

Petitioner also fails to demonstrate prejudice. Notably, petitioner does not explain how 

his testimony would have affected the outcome of trial, other than "he would have simply been 

able to deny the allegations tipping the balance in favor of acquittal." Pet'r Brief at 21. Denying 

the allegations under oath would have added little to his defense, particularly when he would 

have been subjected to cross examination and his felony criminal history would have been 

6 - OPINION AND ORDER 
revealed to the jury. Thus, the PCR court did not unreasonably apply Strickland when it rejected 

Ground 20. 

In his pro se brief, petitioner raises Ground 2 of his amended petition, which alleges that 

trial counsel failed to "effectively object to the prosecutor's misrepresentations regarding 

fulfilling her discovery duty and her failure to tender it in a manner that allowed [petitioner] 

proper notice and opportunity to investigate and defend." Am. Pet. at 3; Pet'r Pro Se Brief at 17-

18. However, petitioner fails to explain how trial counsel could have objected or why an 

objection or additional efforts to obtain discovery would have changed the outcome of the trial. 

As the PCR court found, petitioner presented "[n]o proof [trial counsel] didn't obtain discovery 

that was within his power to obtain." Resp't Ex. 175 at 2. 

Next, petitioner argues that trial counsel inadequately investigated the case and failed to 

call witnesses for cross-examination, as raised in Grounds 5, 6, 7, 8, and 9 of his amended 

petition. The PCR court found that petitioner presented "[i]nsufficient evidence that [the] case 

[was] not well investigated." Resp't Ex. 175 at 2. Specifically, the PCR court noted that 

petitioner presented "[n]o proof' that counsel failed to discover witnesses "who were available, 

helpful, willing [and] whose testimony would have been helpful." Resp't Ex. 175 at 1. Petitioner 

presents no convincing argument to dispute the PCR court's findings. 

Finally, in Grounds 23 through 27, petitioner alleges that trial counsel was ineffective by 

failing to seek the removal of several jurors for cause. The PCR court rejected these claims and 

found there was an "insufficient legal basis to challenge for cause any jurors mentioned." Resp't 

Ex. 175 at 1. In his prose brief, petitioner offers no factual or legal basis to justify removal of the 

jurors and fails to show any resulting prejudice. 

7 - OPINION AND ORDER 
In sum, the PCR court's decision was neither contrary to nor an unreasonable application 

of clearly established federal law, and it is entitled to deference. 28 U.S.C. § 2254(d)(l). 

CONCLUSION 

For the reasons explained above, the Amended Petition for Writ of Habeas Corpus (ECF 

No. 29) is DENIED and this case is DISMISSED. A Certificate of Appealability is denied on the 

basis that petitioner has not made a substantial showing of the denial of a constitutional right 

pursuant to 28 U.S.C. § 2253(c)(2). 

DATED this~fMarch, 2018. 

Ann Aiken 

United States District Judge 

8 - OPINION AND ORDER