IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

STEVEN JAMES BERLINER, 

Case No. 3:15-cv-01787-SI 

Petitioner, 

OPINION AND ORDER 

v. 

BRIAN GEERS, et al., 

Respondents. 

Nell Brown 

Assistant Federal Public Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum, Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondents 

1 - OPINION AND ORDER 
SIMON, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S. C. § 2254 challenging the legality of several state-court 

convictions. For the reasons that follow, the Amended Petition 

for Writ of Habeas Corpus (#1) is denied. 

BACKGROUND 

The background facts, as stated by the Oregon Court of 

Appeals during Petitioner's direct appeal, are as follows: 

Defendant attended a party at the home of a 

neighbor in rural Lincoln County. He began 

drinking beer and smoking marijuana shortly 

after he arrived and continued to do so until 

around 10:00 p.m. when he and two friends 

decided to leave the party to go to a bar. 

They started off in defendant's vehicle, a 

1972 sport utility vehicle that defendant 

used to go "mudding." The vehicle had a roll 

bar, but no doors and no top. Defendant was 

driving. Nobody was wearing a seat belt, and 

defendant was carrying a cup of beer in one 

hand. As he started down a hilly, wooded 

road, he lost control of the vehicle. It hit 

a tree and rolled down a steep embankment. 

All three occupants were injured and taken to 

a hospital where one of the passengers died 

from his injuries. Also at the hospital, a 

laboratory technician supervised a test to 

determine defendant's blood alcohol content 

(BAC) based on the alcohol content of his 

blood plasma, but not his whole blood. That 

test showed a BAC of .086. 

State v. Berliner, 232 Or. App. 539, 222 P.3d 744 (2009). 

The Lincoln County Grand Jury indicted Petitioner on one 

count of each of the following: Manslaughter in the First Degree, 

Manslaughter in the Second Degree, Assault in the Third Degree, 

Driving Under the Influence, Reckless Driving, Recklessly 

2 OPINION AND ORDER 
Endangering Another, and Ori ving While Suspended. Respondents' 

Exhibit 102. Petitioner's first trial resulted in a hung jury, 

and the State re-tried him. 

Petitioner's primary strategy was to establish that he had 

not actually been the driver of the vehicle. Secondarily (and the 

focus of this Opinion), he sought to challenge the State's 

representation that his BAC exceeded Oregon's legal limit of .08. 

The vehicular accident occurred at 10:10 p.m. The hospital 

performed a plasma test of Petitioner's blood at 11: 50 pm and 

reported a . 08 6 BAC result. Authorities obtained a warrant for 

two additional blood draws which the Oregon State Crime Lab 

analyzed using a "whole bloodn method and found Petitioner's BCA 

to be .02 at 1:15 a.m. and .01 at 2:20 a.m. 

At trial, the State offered only the 11:50 p.m. hospital 

.086 BAC result to establish that Petitioner was intoxicated at 

the time of the accident. Petitioner's attorney called Dr. 

Raymond Grimsbo, a forensic scientist, to testify about the 

hospital's method of testing Petitioner's blood. Dr. Grimsbo was 

prepared to testify that the hospital did not use the whole blood 

"gold standardn of testing as utilized by the Oregon State Crime 

Lab, and instead determined BAC based off of the plasma portion 

of the blood sample only. The State objected to Dr. Grimsbo' s 

testimony before he could fully present it, and the prosecutor 

examined Dr. Grimsbo outside the presence of the jury. 

3 - OPINION AND ORDER 
Dr. Grimsbo was of the opinion that the plasma testing 

method employed by the hospital would produce a result 15% higher 

than the whole blood test used by the Crime Lab. He was therefore 

prepared to testify that where the plasma-based hospital test 

revealed a . 086 BAC, when adjusted to reflect gold standard 

testing where the plasma has not been "spun off" from the whole 

blood, Petitioner's BAC was actually .073, placing him below the 

legal limit of .08. Trial Transcript, p. 1718. In the event the 

jury concluded Petitioner was the driver of the vehicle, trial 

counsel intended to demonstrate that he did not behave in a 

manner that manifested an extreme indifference to the value of 

human life so as to justify a Manslaughter conviction because his 

BAC was within permissible limits. 

The trial judge repeatedly explained to Petitioner's 

attorney that he needed to lay a proper foundation for the 

testimony, that he needed to "draw that nexus between [Dr. 

Grimsbo's) opinion and, um, that which actually occurred in this 

case on one level or another." Id at 1751. The judge noted that 

his "comfort level, even now, is being tested as far as what I've 

said, uh, because I don't know that it's my role to provide the 

answers." Id at 1751-52. It appears the judge was waiting for 

counsel to seek leave to admit the whole blood tests from the 

Crime Lab, but counsel never did. The judge ultimately refused to 

permit Dr. Grimsbo to testify for lack of a proper foundation, id 

4 - OPINION AND ORDER 
at 1759, the jury convicted Petitioner on all counts, and the 

trial court sentenced him to 120 months in prison. 

During his direct appeal, Petitioner argued in relevant part 

that: (1) the evidence adduced from the BAC hospital test was 

inadmissible because the testing was not done pursuant to 

statutory requirements; and (2) the trial court erred when it did 

not allow Dr. Grimsbo to testify that the .086 BAC was 

artificially elevated because the test relied on blood plasma, 

not whole blood. The Court of Appeals found that although the 

issues "present interesting questions,n it did not need to 

address them because a person is considered to be driving under 

the influence of intoxicants in Oregon either with a .08 BAC, or 

if the person is under the influence of liquor or a controlled 

substance. It noted that Petitioner testified at trial not only 

that he consumed ten cups of beer and smoked marijuana at the 

party, but also that he was intoxicated and impaired when he 

left. Berliner, 232 Or. App. at 545. It therefore concluded that 

any error regarding the BAC was harmless. Petitioner sought 

further review in the Oregon Supreme Court, which was denied. 348 

Or. 291, 231 P.3d 795 (2010). 

Petitioner next filed for post-conviction relief ("PCRn) in 

Umatilla County where he claimed that a competent trial attorney 

would have recognized the exculpatory value of the Crime Lab's 

whole blood tests and offered them as evidence. The PCR court 

denied relief on this claim as well as others not relevant to 

5 - OPINION AND ORDER 
this habeas proceeding. The Oregon Court of Appeals affirmed the 

PCR court's decision without opinion, and the Oregon Supreme 

Court denied review. Berliner v. Coursey, 266 Or. App. 229, 337 

P. 3d 204 (2014), rev. denied, 356 Or. 689, 344 P. 3d 1111 (2015). 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on 

September 21, 2015, and the Court appointed counsel to represent 

him shortly thereafter. With the assistance of counsel, 

Petitioner argues that he received ineffective assistance of 

trial counsel when his attorney failed to: (1) introduce valid, 

exculpatory BAC evidence in the form of the Crime Lab results; 

(2) adequately object to the hospital's plasma test; and 

(3) elicit relevant testimony from Dr. Grimsbo regarding the 

invalid BAC evidence. 

I. Unargued Claims 

The Petition for Writ of Habeas Corpus raises 19 grounds for 

relief, and Petitioner's argued claims represent Grounds Eight 

and Ten. Petitioner does not argue the merits of his remaining 

claims in his briefing, nor does he address any of Respondents' 

arguments as to why relief on these claims should be denied. The 

Court has examined these claims on the existing record and the 

prose Petition and concluded that Petitioner has not carried his 

burden of proof. See Silva v. Woodford, 279 F.3d 825, 835 (9th 

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

Ill 

Ill 

6 - OPINION AND ORDER 
II. Claims Properly Before This Court 

Respondents assert that Petitioner failed to fairly present 

his argued claims that counsel failed to move to suppress the 

hospital draw, or introduce expert testimony from Dr. Grimsbo 

challenging the plasma test, 1 leaving them procedurally 

defaulted. See Rose v. Lundy, 455 U.S. 509, 519 (1982) (requiring 

a habeas petitioner to present his claims to a state's highest 

court in order to preserve them for federal habeas review) . He 

directs this Court's attention to the PCR Petition for Review 

filed in the Oregon Supreme Court where Petitioner clearly framed 

the issue presented as whether counsel was constitutionally 

ineffective "for failing to offer the results of an exculpatory 

blood alcohol test into evidence during a jury trial when the 

test contradicts the results of a blood test offered by the state 

and the defendant's level of intoxication is directly at 

issue[.]" Respondents' Exhibit 142, p. 15. 

As Petitioner points out, his argued claims are all 

necessarily reliant upon whether counsel failed to appreciate the 

significance of, and present evidence of, the results from the 

Crime Lab blood testing. The Court views the claim broadly to 

state that trial counsel's failure to recognize the importance of 

the Crime Lab results and introduce them prevented him from 

1 Petitioner also suggests that counsel should have obtained an independent 

blood test but does not pursue this claim beyond his initial brief, 

recognizing that it "is not essential to [his] claim." Reply (#59), p. 4 n.2. 

7 - OPINION AND ORDER 
effectively presenting Dr. Grimsbo's testimony so as to mount a 

challenge to the State's plasma test result. 

III. 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 

identifies the 

Supreme Court's] 

correct governing 

decisions but 

legal principle from 

unreasonably applies 

[the 

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. 

8 - OPINION AND ORDER 
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)). 

IV. Analysis 

Petitioner argues that although his trial attorney was aware 

of the science that shows plasma-derived BAC results are 

artificially high, counsel missed a critical opportunity to 

establish this fact by ignoring the Crime Lab results. He claims 

that with normal, general BAC dissipation rates which he 

9 - OPINION AND ORDER 
estimates to be .0175 per hour, he could not have possibly gone 

from a . 08 6 BAC to a . 02 BAC in approximately 90 minutes. He 

further contends that his personal dissipation is demonstrably 

less, .01 per hour, given his 1:15 a.m. (.02 BAC) and 2:20 a.m. 

(. 01 BAC) results from the Crime Lab. Based upon this math, 

Petitioner estimates that he could not have had a BAC of more 

than .045 at the time of the accident, placing him well below the 

legal limit. He reasons that counsel could have used the "gold 

standard" results from the Crime Lab to show the invalidity of 

the plasma test (with the help of Dr. Grimsbo), thereby 

demonstrating Petitioner was not intoxicated and therefore did 

not act with the intent necessary to support a Manslaughter 

conviction. 

Because no Supreme Court precedent is directly on point that 

corresponds to the facts of this case, 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. 

10 - OPINION AND ORDER 
Second, Petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

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. 11 Mirzayance, 556 U.S. 

at 122. 

Trial counsel was deposed prior to Petitioner's PCR hearing, 

and he stated that he did not seek out an independent blood test 

because he feared it might show Petitioner to be over the legal 

limit at the time of the accident. This, in turn, would have 

prevented him from calling Dr. Grimsbo to challenge the plasma 

test. Respondents' Exhibit 134, p. 45. He reasoned, "even if I 

had gotten a blood draw that said, Okay, so instead of being 

.084, whatever, it was actually .075, it's close enough that the 

jury could still pound him." Id at 45-46. Counsel was concerned 

that he might prevail on the DUI charge but lose on the 

Manslaughter charge in this fashion. Id at 46. Counsel had the 

following exchange with Petitioner's PCR attorney: 

Q: And then on Mr. Grimsbo' s testimony, I 

read his testimony and your attempt to get 

him to offer an opinion that a blood result 

on the hospital blood, which was an .08, 

11 - OPINION AND ORDER 
there's some percentage that he could come up 

with to maybe get it lower than an .08. 

A. Right. When you do one test, you get a 

particular number, and the other test that 

Grimsbo was advocating for that I think was 

actually the standard for DUI Is anyway, we 

would give a certain percentage beneath the 

other test, which would be the one that was 

done at the hospital. But I don't remember 

what the percentage was. 

Q. Like a .075 or something. He was trying 

to get it lower than the .08? 

A. Right, based on mathematical 

calculations. Not so much on a test of the 

blood but on a test of what he saw in the 

reports from the hospital blood test. 

* * * * * 

Q. The blood tests that were done and 

analyzed by the crime lab, pursuant to the 

search warrant that was obtained by the 

State, did those results come in? 

A. I don't remember that stuff. 

Q. Because the way I recall, from looking 

at the crime lab report, they were obviously 

taken a number of hours afterwards because 

they had to do a search warrant and they were 

taken at 4: 00 or 5: 00 in the morning. They 

were like an .01 or .02. And if you 

extrapolate them back pursuant to this 

formula, it came back to about an . 0 8 or 

between .07 and .08. 

So it sounds like the prosecutor just wanted 

to use what the blood results were from the 

hospital. 

A. I don't know what she was thinking 

regarding the evidence, and I'm sorry, I 

don't really remember too much about the 

State Crime Lab's results. I remember what 

the hospital said, and that's what I was 

focusing on because that's what I was trying 

to refute with Mr. Grimsbo. 

12 - OPINION AND ORDER 
Q. Do you remember 

crime lab came and 

results? 

if anybody from the 

testified about those 

A. No, I don't remember that. 

Respondents' Exhibit 134, pp. 48-59. 

During the subsequent PCR hearing, after Petitioner's PCR 

attorney finished questioning trial counsel, the PCR Court 

granted Petitioner leave to personally question his former 

attorney: 

Q: Mr. Reim, why didn't you introduce these 

whole blood test results at either trial? 

A: Which which 

talking about? The -

thing? 

test results are you 

from the State Police 

Q: The-the tests that were done at the 

Oregon State Police Crime Lab. 

A: Right. The reason for that is 

First of all, my expert talked about 

alcohol levels - that would be helpful. 

this: 

blood 

Second of all, I was kind of worried about 

dissipation rates. There's a range of 

dissipation rates and over the - between -

blood was drawn - let's see - time of the 

accident if dissipation continues could have 

pushed your alcohol level either below .08 or 

above .08. 

So it could have cut both ways. 

Additionally, if I started talking about 

dissipation rates and that was going to bring 

that into issue and I didn't want to do that 

when Dr. Grimsbo had admitted to me questions 

about dissipation rates (indiscernible) 

whatever his level was when the hospital 

blood draw would have been higher 

(indiscernible) rate at the time of the 

accident if that makes sense. Does that 

clarify it? 

13 - OPINION AND ORDER 
Q: Did you look at the crime lab results? 

A: Yes, I was (indiscernible) law test 

showed. 

Q: Those results were .01 and .02 taken at 

1:15 and 2:20 in the morning. And the 

dissipation rate was one percent per hour. 

And if you would have calculated back to the 

accident, the BAC would have been 0.035, well 

below the legal limit. Were you aware of 

that? 

A: I don't necessarily agree with that, Mr. 

Berliner. Certainly, my expert didn't suggest 

that as a possibility and I'm not certain 

that that's actually correct. I don't think 

the dissipation rate has been definitively 

established. 

Q: Don't you think that that would be 

relevant evidence in a DUI Manslaughter case? 

A: I think that it could have been relevant 

evidence. However, I think the number was the 

thing that was actually in question and that 

was where the danger lay as far as I was 

concerned. 

Q: Isn't it something that you should have 

discussed with your client? 

A: I discussed it with the expert, sir. 

Q: So you think it was okay to with[o]ld 

this evidence from your client? 

A: I don't think I withheld anything, sir. 

Q: Did you show me these test results? 

A: I sent to you all the discovery that I 

got. I believe that was in the - I did send 

that to you. 

Respondents' Exhibit 135, pp. 27-29. 

The PCR Court resolved the issue this way: 

14 - OPINION AND ORDER 
. although there's some things that you 

wonder about as far as the blood alcohol I -

don't think that's before the Court. On the 

other hand, I'm not convinced for purposes of 

this record that it would have made any 

difference anyway because I think we' re not 

just talking about alcohol. 

We don't know what the evidence would be as 

far as dissipation rates. It hits me kind of 

cold from what I've heard in the past about 

what the alcohol content would have been at 

the time of the accident as opposed to when 

that was taken at the hospital. But putting 

all that aside, I don't think that's before 

us. 

I am not convinced that trial counsel's 

performance was below the constitutional 

standard either under the State or the 

federal Cons ti tut ion and I'm going to deny 

the petition. 

Respondents' Exhibit 135, pp. 44-45. 

The PCR court determined that without evidence of 

dissipation rates, Petitioner was unable to prove his claim. In 

addition, the PCR judge doubted that the result of the proceeding 

would have been different even if Petitioner could establish that 

a more accurate reading of his BAC at the time of the hospital 

plasma test was below .08. The judge noted that because 

Petitioner had smoked marijuana in addition to his alcohol 

consumption, the BAC was not the only indicator of Petitioner's 

impairment. 

Petitioner argues that based upon the Crime Lab results and 

the apparent dissipation rate they collectively establish, his 

BAC could not possibly have been above the legal limit. In this 

respect, he appears to challenge the PCR court's decision as 

15 - OPINION AND ORDER 
involving an unreasonable determination of the facts in light of 

the evidence presented. Specifically, he takes issue with the PCR 

court's determination that the dissipation rates were an unknown 

quantity. 

Petitioner's own PCR attorney estimated Petitioner's BAC to 

be between .07 and .08 during trial counsel's deposition. 

Respondents' Exhibit 134, p. 49 ("and if you extrapolate them 

back pursuant to this formula, it comes back to about an .08 or 

between an .07 and .08."). This evidence was available to the PCR 

judge, who also heard Petitioner's conflicting estimate that his 

BAC was .035 at the time of the accident. Respondents' Exhibit 

135, p. 28. The judge also heard trial counsel disagree with 

Petitioner's proposed dissipation rates, "I don't think the 

dissipation rate has been definitively established." Id. Based 

upon the evidence before him, the PCR judge specifically stated, 

"We don't know what the evidence would be as far as dissipation 

rates," and noted that the claimed dissipation rates were not 

consistent with his experience. Id at 44. Although Respondents' 

Exhibit 125 contains a detailed analysis of the BAC measurements 

and purports to scientifically establish Petitioner's dissipation 

rate, the PCR court refused to admit the Exhibit because it 

pertaining to an untimely amended PCR petition that was never 

filed. 2 Respondents' Exhibit 135, pp. 4-7. Based upon this 

2 Despite its exclusion in state court, Petitioner asks the Court to consider 

the contents of Respondent's Exhibit 125. This Court must assess Petitioner's 

claims based upon the record the PCR court had before it. See Cullen v. 

16 - OPINION AND ORDER 
record, the PCR court did not clearly err in finding that 

Petitioner had not established the dissipation rate. 

Even if this Court were to agree that Petitioner had somehow 

established his dissipation rate in the PCR Court in the absence 

of any expert evidence such that he was not legally intoxicated 

with alcohol at the time of the accident, and further assuming 

the Court were to conclude that trial counsel was obligated to 

admit the Crime Lab results, 3 Petitioner still would not be 

entitled to habeas relief where he fails to refute the PCR 

court's decision that he suffered no prejudice. The PCR court 

focused on the fact that Petitioner mixed alcohol and marijuana 

before operating a motor vehicle such that he engaged in the kind 

of reckless conduct that would subject him to a Manslaughter 

conviction. This was similar to the Oregon Court of Appeals' 

analysis on direct appeal which focused on Petitioner's testimony 

that he had consumed alcohol and marijuana and believed himself 

to be impaired and intoxicated when he left the party. 

Respondents' Exhibit 105, p. 5. 

Pinholster, 131 S.Ct. 1388, 1400 (2011). Even if Petitioner could introduce 

Respondents' Exhibit 125 here, its would not change the ultimate outcome of 

this case. 

3 Although Petitioner makes much of the fact that counsel could not remember 

the specifics regarding the Crime Lab reports, the record shows that counsel 

considered this evidence, consulted with Dr. Grimsbo about it, and that Dr. 

Grirnsbo believed that the best path forward was to ignore evidence about 

dissipation rates. Respondents' Exhibit 135, pp. 27-29. Counsel believed that 

focusing solely on the purportedly faulty plasma test, without giving the jury 

an opportunity to conclude the dissipation rate worked against Petitioner 

given the delay between the vehicular accident and the hospital draw, gave 

Petitioner his best chance to prevail. This is a strategic decision that, even 

though unsuccessful, counsel was permitted to make. 

17 - OPINION AND ORDER 
Although Petitioner claims he suffered prejudice because he 

would not have testified at trial at all had counsel introduced 

the Crime Lab results, this argument is unconvincing where 

Petitioner's primary defense relied upon his testimony that he 

was not the driver of the vehicle. 4 Consequently, even if 

Petitioner had established that trial counsel's performance fell 

below an objective standard of reasonableness, he could not show 

resulting prejudice. For all of these reasons, Petitioner is not 

entitled to habeas corpus relief. 

CONCLUSION 

For the reasons identified above, the Petition for Writ of 

Habeas Corpus (#1) is denied. The Court allows a Certificate of 

Appealability as to Petitioner's argued claims of ineffective 

assistance of trial counsel. 

IT IS SO ORDERESt, 

o/ DATED this ·i:v day of January, 2019. 

-zi(,4~ Mi aei H. Simon 

United States District Judge 

4 Moreover, the prejudice argument Petitioner presented to the PCR court 

appears to be somewhat different. In his Declaration prepared for the PCR 

action, Petitioner stated that had he known about the Crime Lab results, he 

would have testified that he was not intoxicated. Respondents' Exhibit 135, 

p. 42. The PCR judge found Petitioner could not have it both ways, and found 

him not to be credible on this issue. Respondents' Exhibit 135, pp. 42-43. 

18 - OPINION AND ORDER