I i 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MERVIN R. BARTEAUX, 

Petitioner, 

V. 

JEFF PREMO, Superintendent, 

Oregon State Penitentiary, 

Respondent. 

OLIVER W. LOEWY 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

KRISTEN E. BOYD 

Senior Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

1 - OPINION AND ORDER -

Civil No. 6:16-cv-00787-BR 

OPINION AND ORDER 
BROWN, Senior Judge. 

Petitioner, an inmate at the Oregon State Penitentiary, brings 

this habeas corpus action pursuant to 28 U.S.C. § 2254. For the 

reasons that follow, the Court DENIES the First Amended Petition 

for Writ of Habeas Corpus (ECF No. 25) 

BACKGROUND 

On May 28, 2002, a Multnomah County grand jury indicted 

Petitioner on two counts each of Sodomy in the First Degree and 

Sexual Abuse in the First Degree, and six counts of Unlawful Sexual 

Penetration in the First Degree. The charges arose from 

Petitioner's sexual acts against his developmentally disabled 

cousin over the course of a year. In particular, Petitioner, then 

married and nearly 61 years old, would take his developmentally 

disabled 46-year-old cousin out to fast food restaurants for lunch 

and then engage in sexual acts with her in his van. The victim 

ultimately disclosed the sexual acts to her mother, and Petitioner 

confessed. Petitioner provided an apology letter to the victim and 

outlined the nature of the sexual abuse to the investigating 

officer. 

Counsel was appointed to represent Petitioner. After two 

judicial settlement conferences, and after Petitioner rejected the 

prosecution's offer of a plea agreement for eight years of 

imprisonment, the case proceeded to a jury trial. On December 2, 

2002, the case was called for trial. At the start of the 

2 - OPINION AND ORDER -
proceeding, court-appointed counsel alerted the trial judge that 

Petitioner wanted to retain a different attorney to represent him. 

Petitioner explained to the trial judge that he had been in touch 

with the proposed retained counsel "a few mo_nths" earlier, but at 

that time was financially unable to hire him. Now in a different 

financial position, however, Petitioner wished to retain the 

private attorney in place of his court-appointed attorney. 

Following a lengthy colloquy and an in-chambers meeting among the 

trial judge, counsel, and Petitioner, the trial nevertheless 

proceeded with court-appointed counsel remaining on the case. 

The sole issue at trial was whether the victim was capable of 

consent under Oregon law. The jury ultimately found Petitioner 

guilty on all counts by a 10-2 vote. The trial judge imposed 

consecutive and concurrent sentences totaling 180 months of 

imprisonment. 

Petitioner filed a direct appeal, asserting as error the trial 

judge's denial of Petitioner's motion for judgment of acquitt~l on 

all counts based upon an argument that the victim was capable of 

consent. The Oregon Court of Appeals issued a written opinion 

affirming the conviction and sentence. State v. Barteaux, 212 Or. 

App. 118, 157 P. 3d 225 (2007) The Oregon Supreme Court denied a 

petition for review. State v. Barteaux, 343 Or. 160, 164 P.3d 1161 

(2007) . 

3 - OPINION AND ORDER -
I , 

Petitioner then filed a petition for state post-conviction 

relief ("PCR"). Following an evidentiary hearing, the state PCR 

trial judge denied relief. On appeal, the Oregon Court of Appeals 

reversed and remanded the case in light of the United States 

Supreme Court's then-recent decisions Lafler v. Cooper, 566 U.S. 

156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012). Barteaux v. 

Mills, 250 Or. App. 767, 281 P. 3d 661 (2012). The state sought 

reconsideration, which the Court of Appeals allowed, and the court 

then adhered to its original opinion. Barteaux v. Mills, 252 Or. 

App. 313, 286 P.3d 1243 (2012). On remand, the PCR trial court 

held another evidentiary hearing and again denied relief. Resp. 

Exh. 146. On appeal, the Oregon Court of Appeals affirmed without 

opinion and the Oregon Supreme Court denied review. Barteaux v. 

Taylor, 273 Or. App. 820, 362 P.3d 1215 (2015), rev. denied, 358 

Or. 550, 368 P.3d 25 (2016). 

On May 5, 2016, Petitioner filed a prose Petition for Writ of 

Habeas Corpus with this Court. The Court appointed counsel, who 

filed a First Amended Petition for Writ of Habeas Corpus alleging 

the following claims for relief: 

CLAIM I: Petitioner was denied his choice of counsel, in 

violation of his right to counsel, as guaranteed by the 

Sixth and Fourteenth Amendments. 

CLAIM II: The trial evidence was insufficient to prove 

guilty beyond a reasonable doubt, in violation of 

Petitioner's Fourteenth Amendment right to due process. 

CLAIM III: The "incapable of consent by reason of mental 

defect" element of the offenses of conviction is vague in 

4 - OPINION AND ORDER -
violation of Petitioner's Fourteenth Amendment right to 

due process. 

CLAIM IV: Petitioner's convictions violate his 

Fourteenth Amendment right to due process because he is 

actually innocent of the offenses of the conviction. 

CLAIM V: Trial counsel rendered ineffective assistance 

of counsel, in violation of Petitioner's Sixth and 

Fourteenth Amendment right to effective assistance of 

counsel. 

A. Trial counsel failed to adequately assert 

Petitioner's right to counsel of choice. 

B. Direct appeal counsel failed to raise the claim 

that the trial court had violated Petitioner's 

Sixth and Fourteenth Amendment right to be 

represented by counsel of his choice. 

C. Trial counsel failed to adequately advise 

Petitioner regarding the advantages, disadvantages, 

and risks in rejecting or accepting the State's 

plea offer. 

D. Trial and direct appeal counsel failed to 

adequately assert and argue that the "incapable of 

consent by reason of mental defect" element of the 

offenses of conviction is unconstitutionally vague. 

E. Trial and direct appeal counsel failed to 

adequately assert and argue that the trial evidence 

was insufficient to prove guilt beyond a reasonable 

doubt. 

F. Trial and direct appeal counsel failed to 

adequately assert and argue that Petitioner's 

conviction violated his Fourteenth Amendment right 

to due process because he is actually innocent of 

the offenses of conviction. 

CLAIM VI: Based exclusively on the written record, not 

on hearing from witnesses at an evidentiary hearing, the 

state circuit court judge in post-conviction proceedings 

made credibility determinations adverse to Petitioner 

(which were affirmed on appeal) in violation of his right 

to due process guaranteed by the Fourteenth Amendment. 

5 - OPINION AND ORDER -
I ' 

CLAIM VII: The cumulative effect of the prejudicial 

errors made in Petitioner's case mandate that his 

convictions and sentences be vacated. 

Respondent argues that Petitioner procedurally defaulted the 

grounds alleged in Claim I; Claim III; sub-parts A, B, D, and F, of 

Claim V; Claim VI; and Claim VII. As to Claims II and sub-claim D 

of Claim V, Respondent argues the state court decisions denying 

relief on the merits are entitled to deference. 

Petitioner concedes he procedurally defaulted the grounds 

alleged in Claims I, III, and sub-parts A, D, and E of Claim V, but 

argues the procedural default should be excused. Petitioner also 

argues that the state court decisions denying relief on Claim II 

and sub-part D of Claim V are not entitled to deference. 

Petitioner does not address the remaining claims for relief. 

DISCUSSION 

I. Deference to State Court Decisions 

A. Legal Standards 

An application for 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's findings of fact are .presumed correct and a habeas 

6 - OPINION AND ORDER -
petition bears the burden of rebutting the presumption of 

correctness by clear and convincing evidence. See 28 U.S.C. 

§ 2254 (e) (1). 

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 distinguishable from a decision of [the Supreme] Court 

and nevertheless arrives 

precedent." Williams v. 

at a result different from [that] 

Taylor, 529 U.S. 362, 405-06 (2000). 

Under the "unreasonable application" clause, a federal habeas court 

may grant relief only "if the state court identifies the correct 

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. The state court's application of clearly established 

law must be objectively unreasonable. Id. at 409. 

"Determining whether a state court's decision resulted from an 

unreasonable legal or factual conclusion does not require that 

there be an opinion from the state court explaining the state 

court's reasoning." Harrington v. Richter, 562 U.S. 86, 98 (2011). 

Where a state court's decision is not accompanied by an 

explanation, "the habeas petitioner's burden still must be met by 

7 - OPINION AND ORDER -
showing there was no reasonable basis for the state court to deny 

relief." Id. Where, however, the highest state court decision on 

the merits is not accompanied by reasons for its decision but a 

lower state court's decision is so accompanied, a federal habeas 

court should "look through" the unexplained decision to the last 

related state-court decision that provides a relevant rationale, 

and presume the unexplained decision adopted the same reasoning. 

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) 

B. Claim II - Insufficient Evidence 

In Claim II, Petitioner alleges there was insufficient 

evidence to prove his guilt beyond a reasonable doubt. 

Specifically, Petitioner alleges the state failed to introduce 

sufficient evidence to convince a rational juror that the victim 

was incapable of consent by reason of mental defect. Petitioner 

argues that the prosecution's expert witness, Dr. Genevieve Arnaut, 

provided insufficient testimony to support such a finding. 

"[E]vidence is sufficient to support a conviction whenever, 

'after viewing the evidence in light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. '" 

Parker v. Matthewes, 567 U.S. 37, 43 (2012) ( emphasis added) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Cavazos 

v. Smith, 565 U.S. 1, 6 (2011) This standard "gives full play to 

the responsibility of the trier of fact fairly to resolve conflicts 

8 - OPINION AND ORDER -
I I 

in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts." Jackson, 443 U.S. 

at 319; see also Cavazos, 565 U.S. at 4 (holding that "[i]t is the 

responsibility of the jury-not the court-to decide what conclusions 

should be drawn from evidence admitted at trial") ; Long v. Johnson, 

736 F.3d 891, 896 (9th Cir. 2013) (holding that the court must 

respect the exclusive province of the jury to determine the 

credibility of witnesses, resolve evidentiary conflicts, and draw 

reasonable inferences from proven facts), cert. denied, 134 S. Ct. 

2843 (2014). 

"[A] state-court decision rejecting a sufficiency challenge 

may not be overturned on federal habeas [review] unless the 

'decision was objectively unreasonable.''' Parker, 567 U.S~ at 43 

(quoting Cavazos, 565 U.S. at 4) This Court must resolve doubts 

about the evidence in favor of the prosecution and examine the 

state court decisions through the deferential lens of 28 U.S.C. 

§ 2254 (d). See Long, 736 F.3d at 896 (explaining that a habeas 

court owes a "double dose" of deference when reviewing a state 

court ruling on sufficiency of the evidence); Gonzales v. Gipson, 

701 F.Appx. 558, 559 (9th Cir. 2017) (same). Under this doubly 

deferential standard, to grant relief a court "must conclude that 

the state court's determination that a rational jury could have 

found that there was sufficient evidence of guilt, i.e., that each 

required element was proven beyond a reasonable doubt, was 

9 - OPINION AND ORDER -
objectively unreasonable." Boyer v. Belleque, 659 F.3d 957 (9th 

Cir. 2011). 

Each of the ten counts upon which Petitioner was convicted 

included as an element of the crime that the victim was incapable 

of consent by reason of mental defect. Under Or. Rev. Stat. § 

163. 315 ( 1) (b) , " [a] person is considered incapable of consenting to 

a sexual act if the person is [m] en tally defective." 

"Mentally defective" is defined in Or. Rev. Stat. § 163.305(3) as 

meaning "that a person suffers from a mental disease or defect that 

renders the person incapable of appraising the nature of the 

conduct of the person." As described by the Oregon Supreme Court: 

[T]he question whether a person lacks the capacity to 

consent by reason of mental defect turns on whether the 

person is capable of j udg.ing or analyzing the worth, 

significance, or socially accepted status of engaging in 

particular sexual activity. Put another way, the 

question is whether the person is capable of assessing 

the personal and social consequences of his or her 

decision to engag~ in that activity. 

State v. Reed, 339 Or. 239, 249, 118 P.3d 791 (2005) . 1 

At trial, the state offered the testimony of medical expert 

Dr. Genevieve Arnaut to support allegations that the victim was not 

capable of consent by reason of mental defect. Dr. Arnaut 

1The interpretation and application of Oregon's law regarding 

what it means to be "incapable of consent by reason of mental 

defect" is a state-law question not subject to review by this 

Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[i]t is 

not the province of a federal habeas court to reexamine state-court 

determinations on state-law questions); Mendez v. Small, 298 F.3d 

1154, 1158 (9th Cir. 2002) (state courts have "the last word on the 

interpretation of state law"). 

10 - OPINION AND ORDER -
testified that the victim had an IQ of 53, placing her in the 

bottom 0.1 percent of the population. Dr. Arnaut found the victim 

had limited vocabulary, difficulty understanding abstract concepts, 

and limited problem-solving skills. Overall, Dr. Arnaut opined, 

the victim's communication, daily living, and socialization skills 

placed her in the bottom 0.3 percent of the population, and that 

the victim's overall mental age was the equivalent of a six-yearold child. Dr. Arnaut expressed her view on the victim's ability 

to consent to sexual acts as follows: 

My concern based upon the level of functioning that 

I saw and something that I noted in my report is that I 

was - it felt to me that she would be unable to come up 

with complex or novel solutions to a problem. So, for 

example, she couldn't even rephrase something when I 

wasn't understanding what she was telling me. Put her in 

a more complex situation, [I have] concerns she would be 

able to problem solve very well or even know there were 

certain avenues open to her. For example, if she felt 

that someone was approaching her inappropriately, that 

there might be protective services who would be available 

to help her, I would not expect that she might know that. 

So I would think her problem-solving skills were 

relatively limited, as would be her verbal skills, in 

dealing with the situation. 

Another concern that I would have is based on my 

reading of the literature in this area, which indicates 

that indi victuals diagnosed with mental retardation or 

disabling conditions are often particularly vulnerable to 

individuals in the family, because they are trained over 

a number of years to become dependent upon family members 

and not to question what family members ask them to do 

and have difficulty problem solving around those issues. 

So I think she was doubly vulnerable . because of 

this being an alleged family situation as well as because 

of her - the disabilities that were evidenced to me in 

the evaluation. 

11 - OPINION AND ORDER -
The Oregon Court of Appeals found Dr. Arnaut's testimony alone 

was sufficient to support the jury's verdict. 

Appeals explained: 

As the Court of 

Arnaut's testimony that the victim may not "even know 

that there were certain avenues open to her" and that sh.e 

was unlikely to "question what family members ask [her] 

to do" supports the reasonable inference that the 

victim's mental defect prevented her from understanding 

that she could decline defendant's sexual advances. 

Without such understanding, the victim was unable to 

"exercise. . judgment and. . mak[e] choices based 

on an understanding of the nature of [her] own conduct." 

Barteaux, 212 Or. App. at 122 (quoting Reed, 339 Or. at 244) 

(alterations in original). The Court of Appeals concluded that "a 

rational juror could have inferred that [the victim] lacked the 

capacity to consent from Arnaut's testimony that [the victim's] 

mental defect prevented her from 'understand[ing] .. how to say 

no.'" Id. 

The Court of Appeals went on to note that, although Arnaut's 

expert testimony was alone sufficient to support the jury's 

verdict, the state also introduced evidence of Petitioner's own 

acknowledgment that he believed the victim lacked the capacity to 

consent. "Defendant's acknowledgment, based on his interaction 

with the victim, that she was not capable of consent lends further 

support to the inference that the victim did not understand that 

she could choose whether to engage in sexual relations with 

defendant." Barteaux, 212 Or. App. at 123 (footnote omitted). 

12 - OPINION AND ORDER -
Finally, the Oregon Court of Appeals addressed Petitioner's 

contention that there was evidence from which the jury could have 

reasonably inferred that the victim was capable of consenting to 

sexual relations: 

The existence of that evidence, however, does not affect 

our analysis. For instance, a reasonable juror could 

infer from the victim's own testimony that she understood 

the. moral implications of having sexual contact with 

defendant. See 339 Or. at 245, 118 P.3d 791. As the 

Supreme Court explained in Reed, "[t]he jury, however, 

was free to reject her testimony and to rely on other 

testimony and evidence relevant to its determination 

whether the victim's mental defect had rendered her 

incapable of consenting to sexual contact." Id. at 245, 

118 P.3d 791. Thus, here, we are concerned only with 

whether there was evidence that supported the jury's 

finding that the victim lacked the capacity to consent by 

reason of her mental defect; we do not sit as factfinder 

and choose between competing inferences. 

Barteaux, 212 Or. App. at 124. 

Having carefully reviewed the entire record, this Court 

concludes the Oregon Court of Appeals' decision was not objectively 

unreasonable. The Court notes a rational juror reviewing the 

evidence could easily choose amongst competing inferences and 

determine that the victim's mental defect rendered her incapable of 

consenting to sexual contact. That evidence addressed, among other 

things, the victim's limited vocabulary, difficulty understanding 

abstract concepts, and limited problem- solving skills placing her 

in the bottom O .1 percent of the population with a mental ageequivalency of a six-year-old. The jury was also able to assess 

the victim's trial testimony rationally and to conclude from their 

13 - OPINION AND ORDER -
observations of the victim that her limited level of executive 

functioning and ability to express herself verbally. They heard 

the victim identify herself as "23" years of age, when in reality 

she was 46; they heard that she can write her first and last name 

and a few of her cats' names, but nothing else, and that she does 

not know how to read; she lives at home with her mother, requires 

care in her daily living activities, and is subject to a 

guardianship. 

Moreover, the jury heard that Petitioner told a police officer 

that the victim was mentally challenged and that she could not 

consent or could consent only "to a degree." On cross-examination, 

Petitioner agreed that he was the "adult" in the situation, and the 

victim was the "child." 

Finally, as the Oregon Court of Appeals found, Dr. Arnaut's 

testimony provided a clear nexus between the victim's disability 

and her incapacity to appraise the nature of the sexual contact. 

Because of the victim's disability and her familial status with 

Petit~oner, the victim would be unable to consider her options. 

Based on the record and viewing the evidence in the light most 

favorable to the prosecution, the Court finds there was sufficient 

evidence that any rational trier of fact cou.ld have found the 

essential elements of the crimes charged against Petitioner. Payne 

v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Accordingly, the state 

court decision denying relief on this claim was not an unreasonable 

14 - OPINION AND ORDER -
application of clearly established federal law, and Petitioner is 

not entitled to habeas relief. 

D. Ground V (C) - Ineffective Assistance for Failure to 

Advise on Plea Offer 

In sub-part C of Ground V, Petitioner alleges trial counsel 

was ineffective when he failed to adequately advise Petitioner 

regarding the risks and benefits of rejecting the state's plea 

offer. Petitioner presented this claim to the state PCR court, 

which denied relief. 

Under well-established Supreme Court precedent, the right to 

the effective assistance of counsel extends to "the plea-bargaining 

process," including the decision whether to accept or reject a plea 

offer. Lafler, 566 U.S. at 162; Frye, 566 U.S. at 145; Hill v. 

Lockhart, 474 U.S. 52, 58-59 (1985). To establish ineffective 

assistance, a petitioner must show that "counsel's performance was 

deficient," and that counsel's "deficient performance prejudiced 

the defense." Stricklandv. Washington, 466U.S. 668,687 (1994). 

To show deficient performance, a petitioner "must show that 

counsel's representations fell below an objective standard of 

reasonableness." Id. at 688. The question is not whether 

counsel's advice was correct, but "whether that advice was within 

the range of competence demanded of attorneys in criminal cases." 

McMann v. Richardson, 397 U.S. 759, 771 (1970) To establish 

prejudice in the context of a plea claim, a petitioner "must show 

the outcome of the plea process would have been different with 

15 - OPINION AND ORDER -
competent advice." Lafler, 566 U.S. at 163. Where a petitioner 

rejects the state's plea offer, "he must show that, but for the 

ineffective advice of counsel, there is a reasonable probability he 

would have accepted the plea offer and received a sentence less 

severe than the sentence imposed." Crawford v. Fleming, 323 

F.Supp.3d 1186, 1191 (D. Or. 2018) (citing Lafler, 566 U.S. at 

164) 

In the PCR proceeding on remand from the Oregon Court of 

Appeals, Petitioner presented an affidavit stating as follows: 

I believe that I attended two settlement 

conferences. One was before Judge Frantz, I do not 

remember the name of the other judge. The Judges told 

me, about a trial, that it would more than likely make 

the length of time that I might serve longer, I recall a 

proposed sentence of 8 years for a negotiated settlement. 

At the time of the 8-year offer, [trial counsel] had 

given me absolutely no indication as to what my prospects 

were should I go to trial. He neither encouraged nor 

discouraged me to participate in negotiations. He said 

nothing one way or the other. I had no basis for 

evaluating whether the offer was good or bad. He told me 

that it was up to me. He did not ask whether I had 

questions. He did not ask if he I [sic] would accept the 

offer. 

Resp. Exh. 133, p. 6. 

The state countered with an affidavit from Petitioner's trial 

counsel, who stated: 

I certainly advised [Petitioner] that for each 

separate sexual act consecutive sentences could be 

imposed. I told him that I agreed with Judge Frantz that 

he would get more time than the pretrial offer due to 

repeated contact and that he was a middle-aged man having 

sexual contact with his developmentally delayed relative. 

In fact, the judge only had to run one count of sodomy 

16 - OPINION AND ORDER -
partially consecutive to reach the total of 180 months. 

His assertion that he did not know about the possibility 

of consecutive sentences is simply not true. Judge 

Frantz was very careful to explain this concept to him 

and so did I. I did not tell him that convictions were 

certain. Al though petitioner admitted to much of the 

sexual contact I felt that there was a legitimate issue 

as to whether the victim has the mental capacity to 

consent. Although it is often possible to predict the 

outcome of a trial for a client, petitioner's case could 

have gone either way. However, he was told it was a oneissue case and if the jury believed the victim could not 

legally consent he would be convicted of all, or at least 

most, of the charges. I did not urge him to go to trial. 

Judge Frantz and I both urged caution. Petitioner often 

referred to his health issues and felt he would not 

survive the offered prison term. I believe this 

consideration and not wanting to go to prison as a sex 

offender caused him to choose trial. 

Resp. Exh. 143, pp. 1-2. The state also submitted an affidavit 

from the prosecutor, who described the settlement conferences 

before the criminal trial: 

Petitioner was advised of his chances at trial, 

including the probable outcome of. trial, by three 

different judges: presiding criminal judge Julie E. 

Frantz on November 19, 2002, Judge Jean Maurer on 

November 26, 2002, and Judge Janice Wilson on November 

29, 2002. On November 19, 2002, I extended a plea offer 

of 100 months at a judicial settlement conference with 

Judge Frantz. On November 26, 2002, we attempted a lastminute settlement with Judge Maurer. I told [Petitioner] 

that the 100-month plea offer would expire at noon that 

day. [Petitioner] started crying and said that he would 

die in prison if he took the plea offer. He said he has 

to go to trial. On November 27, 2002, my notes reflect 

[ Petitioner's] ongoing refusal to commit to the plea 

offer. On November 29, 2002, this case was sent to Judge 

Wilson for trial. Judge Wilson tried to talk 

[ Petitioner] into accepting the plea, but [ Petitioner] 

wanted a postponement to hire his own attorney. Judge 

Wilson denied that request. On November 29, I told 

[Petitioner] to cut his losses now or he would face 

serious time if convicted. He opted for trial. 

17 - OPINION AND ORDER -
In other words, [ Petitioner] was given ample warning 

about what he was facing by three different judges. He 

knew the risks of proceeding to trial, but consistently 

refused to take the plea offer and exercised his right to 

trial. 

Resp. Exh. 116, pp. 1-2. 

The PCR trial judge considered and rejected Petitioner's 

ineffective assistance of counsel claim. At the PCR hearing, the 

trial judge addressed the claim: 

[HJ aving conducted hundreds, for sure, of these 

settlement conferences as a judge and knowing as I do the 

experience and demeanor of [the] three judges with whom 

[Petitioner] discussed his case, I feel confident that 

these judges did not attempt to assert the role of a· 

defense attorney, but rather that they would have 

explained to him what the - the issues before him were. 

And based upon, again, my assessment of the evidence 

that's been produced by both parties, this was a oneissue case; and that is, whether or not there was a 

prospect that this girl, victim - well, maybe she was a 

young woman. I can't even remember her age, but I said 

- I saw part of the transcript of her - of the direct 

examination with her. 

And as best I could tell from that degree of 

transcript, she's pretty seriously limited. And if 

anybody in the world knew the extent of that limitation, 

it was [Petitioner]. 

He was a family member. He was familiar with her. 

He was the one quite clearly taking advantage of her. 

And so I - I do not believe - and I believe petitioner 

has not proven - that these judges set about to try to 

explain the facts of the case and what the most likely 

outcome of those facts might be, but rather explained to 

him the risk that if, in fact, the jurors determine that 

this young girl was sufficiently disabled as to be 

incapacitated and incapable of giving consent, that he 

was in a very bad situation because there were multiple 

acts over a period of time. 

18 - OPINION AND ORDER -
He would've been in a position of trust with this 

girl. And - as a member of the family. And that the 

risk of consecutive sentences was almost inevitable, if 

not multiple consecutive sentences. 

And so in my opinion these judges provided 

opportunity, which [trial counsel] took advantage 

explain to [Petitioner] that you' re rolling 

prettying [sic] big dice here and it's probably 

good idea. 

ample 

of to 

some 

not a 

That's what I believe [trial counsel] said to him, 

more or less. And my opinion that [Petitioner] at the 

age he was - he's about five years older than I am - and 

I can appreciate that if I was his age at the time this 

case was headed and I was having to make a decision and 

the - and the prosecutor was saying, "Well, I' 11 agree to 

eight years," that he might very well think, we1'1, gosh, 

you know, I might not survive eight years, so I might as 

well see what happens with trial, and really probably 

didn't want to believe that having lived probably a 

pretty good life otherwise that he was going to end his 

life in such a horrible fashion and decided to take a 

direct chance at trial. 

* * * 

So I find that - that the advice was appropriately 

given. It was within ABA standards. 

[Petitioner] simply chose to take his chances and 

hope for the best and it did not turn out well for him. 

And as a result I find he has not proven his case. 

I find no error was committed and I find that any 

error that might have been committed was ameliorated by 

the information provided by not one, but apparently three 

different judges who gave [Petitioner] an opportunity to 

change his mind. 

Resp. Exh. 145, pp. 25-27. The PCR judge subsequently entered 

judgment against Petitioner, explaining his decision as follows: 

The court finds that Petitioner has not proven that 

any errors were committed by trial counsel. Nor has 

Petitioner proven that there is a reasonable probability 

19 - OPINION AND ORDER -
that even if any error alleged was proven, that the 

result would have been different. 

* * * 

The chief issue before this court is whether trial 

counsel failed to advise Petitioner to take an offer from 

the DA of an 8-year sentence. Petitioner acknowledges 

that he participated in settlement discussions with two, 

seasoned trial judges. Since he admits that evidence 

against him was extremely strong, the only point of such 

discussions was to help Petitioner understand the risk of 

a sentence longer than 8 years. The court finds 

Petitioner's affidavit, exhibit 4, is not believable. On 

the other hand, the court finds credible the affidavit of 

trial counsel, exhibit 115. The court finds that 

Petitioner knew he was exposed to Measure 11 & 

consecutive sentences. Petitioner's assertions to the 

contrary are not credible. Counsel for Petitioner 

alleges that he has already proven that trial counsel's 

performance was deficient. Trial Memo, p. 8. This is 

not correct. No error has been proven. 

Resp. Exh. 146, pp. 2-3. 

In light of the evidence before the PCR trial court, this 

Court concludes the decision to deny relief on Petitioner's claim 

of ineffective assistance of counsel was not contrary to nor an 

unreasonable application of Strickland. The PCR trial court 

reasonably concluded that trial counsel did not commit any errors 

and that, in any event, there was no reasonable probability that 

the result would have been different. Accordingly, the PCR court's 

decision is entitled to deference, and Petitioner is not entitled 

to habeas relief. 

20 - OPINION AND ORDER -
II. Cause and Prejudice to Excuse Procedurally Defaulted Claims 

Under Martinez v. Ryan 

As noted, Petitioner concedes he procedurally defaulted the 

grounds alleged in Claim I, Claim III, and sub-parts A, D, and E of 

Claim V, but he contends his procedural default should be excused 

under Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012). In 

Martinez, the Supreme Court held that "[i]nadequate assistance of 

counsel at initial review collateral proceedings may establish 

cause for a prisoner's procedural default of a claim of ineffective 

assistance of counsel at trial." Id. at 1351. To satisfy Martinez 

a habeas petitioner must show the following: (1) the underlying 

ineffective assistance of counsel claim is substantial; ( 2) the 

petitioner had ineffective counsel during the state collateral 

proceedings; (3) the state collateral proceeding was the initial 

review proceeding for the claim; and (4) state law required the 

petitioner to bring the claim in the initial review proceeding. 

Trevino v. Thaler, 569 us 413, 133 S. Ct. 1911, 1919 (2013). 

In Oregon, the state post-conviction procedure is the initial 

review proceeding for claims of ineffective assistance of trial 

counsel, and Oregon law requires that ineffective assistance claims 

be raised at post-conviction. State v. Robinson, 25 Or. App. 675, 

550 P.2d 758, 758 (Or. App. 1976) (holding ineffective assistance 

of counsel claims may only be resolved in a post-conviction 

proceeding); Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) 

21 - OPINION AND ORDER -
(noting Oregon requires ineffective assistance claims to be raised 

in a collateral proceeding), cert. denied, 133 S. Ct. 863 (2013). 

The analysis, therefore, centers on prongs one and two. 

Under the first Martinez requirement, a petitioner must come 

forward with facts to demonstrate that his underlying ineffective 

assistance claim is "substantial," or has "some merit." Martinez, 

132 S. Ct. at 1318. To establish a claim is "substantial 1 n a 

petitioner must generally show that trial counsel rendered 

deficient performance and that petitioner suffered prejudice as a 

result of counsel's errors. Finnel v. Belleque, Civ. No. 3:06-

cv-00828-BR, 2015 WL 225817, at *3 (D. Or. Jan. 15, 2015) Because 

the "substantiali ty" analysis under Martinez is not a merits 

review, but more akin to whether a certificate of appealability 

should issue, a habeas petitioner has satisfied the first prong of 

Martinez if he has shown that the merits of an ineffective 

assistance claim would be "debatable among jurists of reason" or 

the issues are deserving of further pursuit. Detrich v. Ryan, 740 

F.3d 1237, 1245 (9th Cir. 2013) (en bane) (citing Miller-El v. 

Cockrell, 537 U.S. 322 (2003)) 1 cert. denied, 134 S. Ct. 2662 

(2014) . Stated inversely, a claim is "insubstantial" if "it does 

not have any merit . or is wholly without factual support." 

Martinez, 132 S. Ct. at 1319. 

Under the second Martinez prong, a petitioner must show that 

he either had no counsel on the initial post-conviction review, or 

22 - OPINION AND ORDER -
that PCR counsel was "ineffective under the standards of 

Strickland." Id. at 1318. Thus, a petitioner must show that PCR 

counsel's performance in the initial-review collateral proceeding 

fell below constitutional standards. Id. at 1319. Not every error 

by PCR counsel will constitute "cause;" indeed, PCR counsel "is not 

necessarily ineffective for failing to raise even a nonfrivolous 

claim." Sexton,. 67 9 F. 3d at 115 7. To show prejudice, a petitioner 

must show that if PCR counsel had not performed deficiently, the 

result of the PCR proceeding would have been different. Clabourne 

v. Ryan, 745 F.3d 362, 376-77 (9th Cir. 2014), overruled on other 

grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) This 

determination "is necessarily connected to the strength of the 

argument that trial counsel's assistance was ineffective." Id. at 

377-78. The court may address either inquiry first, as resolution 

of one prong may obviate the need to address the other. Martinez, 

' 132 S. Ct. at 1319. 

A. Claims I and III - Denial of Choice of Counsel and 

Impermissibly Vague Statute 

In Claim I, Petitioner alleges the trial court violated his 

Sixth Amendment right to choice of counsel by denying Petitioner a 

continuance to retain a different attorney. In Claim III, 

Petitioner alleged the trial judge violated his due process rights 

because an element of his charged offenses, that the victim was 

"incapable of consent by reason of mental defect," is impermissibly 

23 - OPINION AND ORDER -
vague. Petitioner did not assign either of these claims as error on 

direct appeal as required under Oregon law. 2 Petitioner cannot 

excuse these trial error claims on the basis of ineffective 

assistance of PCR counsel. To the extent the Supreme Court 

recognized in Martinez that ineffective assistance of PCR counsel 

may be cause to excuse a procedural default, "it can only excuse a 

claim of ineffective assistance of trial counsel, not a claim of 

trial court error." Nash v. Nooth, Civ. No. 2:14-cv-02002-MA, 2017 

WL 3083414, at *4 (D. Or. July 18, 2017) (citing Martinez, 566 U.S. 

at 9) (emphasis added); see also Davila v. Davis, 137 S. Ct. 2058, 

2067 (2017) (declining to extend Martinez beyond its narrow scope). 

Accordingly, Petitioner cannot obtain habeas corpus relief on 

Claims I and III. 

B. Claim V(A) - Ineffective Assistance of Trial Counsel for 

Failure to Assert Petitioner's Right to Counsel 

In sub-part A of Ground V, Petitioner alleges trial counsel 

failed to adequately assert Petitioner's right to counsel of 

choice. In his state PCR petition, Petitioner alleged the 

following claims: 

C. Petitioner's trial attorney failed to make [an] 

a de qua te record to preserve petitioner's rights 

under the Constitutions of Oregon and of the United 

States, including his right to be represented by 

retained counsel of [his] choice. 

2 In Oregon, most trial errors must be raised by direct appeal 

to the Oregon Court of Appeals. Kellotat v. Cupp, 719 F.2d 1027, 

1030 (9th Cir. 1983). 

24 - OPINION AND ORDER -
D. Petitioner's trial attorney failed to represent 

petitioner relative to the issue of whether his 

trial should be delayed so that petitioner could be 

represented by retained counsel of his own choice. 

E. Petitioner's trial attorney failed to disclose to 

the trial judge information that would have 

necessarily revealed that he was not prepared for 

trial, and that petitioner's trial should be 

continued so that petitioner could be represented 

by retained counsel of his own choice. At that 

time, petitioner's trial attorney was subject to a 

conflict of interest with petitioner, such that 

disclosure of information by petitioner's trial 

attorney would undermine his own legal interests. 

Resp. Exh. 113, p. 15. In his PCR appeal, however, Petitioner did 

not raise these claims. Consequently, Petitioner's default of the 

claim alleged in sub-part A of Claim V did not occur at the PCR 

trial stage, and Martinez is not available to excuse the default. 

See Martinez, 132 S. Ct. at 1315 (holding the exception does not 

extend to attorney errors in any proceeding beyond the first 

occasion the state allows a prisoner to raise a claim of 

ineffective assistance of trial counsel); Davila, 137 S. Ct. at 

2 0 6 6-67 ( explaining Martinez applies only to initial-review PCR 

proceedings, and not appeals from such proceedings). Accordingly, 

Petitioner is not entitled to habeas relief on the claim alleged in 

sub-part A of Claim V. 

C. Claim V(D) Ineffective Assistance of Trial and 

Appellate Counsel for Failure to Challenge Statute as 

Impermissibly Vague 

Petitioner alleges trial counsel was ineffective in failing to 

challenge the statutes under which Petitioner was convicted as 

25 - OPINION AND ORDER -
impermissibly vague. Petitioner argues that "[t]he Oregon Supreme 

Court's clarification respecting the meaning of 'mental defect' 

leaves that meaning unconstitutionally vague. Specifically, 

in an effort to clarify what the relevant statute's term 

'appraising' means, [State v. J Reed holds that 'appraisal' must 

constitute an exercise of judgment and the making of choices based 

on an understanding of the nature of one's own conduct." 

Petitioner's Brief in Support~ p. 13 (internal citation omitted). 

Assuming that the Oregon Supreme Court's decision in Reed 

rendered the statute impermissibly vague, Petitioner cannot 

establish that post-conviction counsel was ineffective in failing 

to assert a claim that trial counsel should have challenged the 

statute on this basis because Reed was not decided until two years 

after Petitioner's trial. Post-conviction counsel could reasonably 

have determined at the time that assigning error to the actions of 

trial counsel based upon a decision that was not announced until 

after trial counsel's representation would be meri tless. See 

Williams v. Nooth, 606 Fed. Appx. 380 (9th Cir. 2015) (reasonable 

PCR counsel would know that the court "does not mandate prescience, 

only objectively reasonable advice under prevailing professional 

norms") (citing Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th 

Cir. 2004), cert. denied, 136 S. Ct. 1528 (2016) Moreover, the 

Martinez exception doe not apply to claims of ineffective 

assistance of appellate counsel. Davila, 137 S. Ct. at 2062-63. 

26 - OPINION AND ORDER -
Accordingly, Petitioner's procedural default cannot be excused 

under Martinez because he cannot establish that PCR counsel was 

ineffective, and Petitioner is not entitled to habeas relief on 

sub-part D of Claim V. 

D. Claim V (E) - Ineffective Assistance of Trial and 

Appellate Counsel for Failure to Adequately Assert 

Insufficiency of the Evidence 

In sub-part E of Ground V, Petitioner asserts trial and 

appellate counsel failed to adequately assert and argue that the 

trial evidence was insufficient to prove guilt beyond a reasonable 

doubt. 3 As discussed above, however, Petitioner has not 

established that there was insufficient evidence to support his 

conviction. Accordingly, Petitioner cannot excuse the default of 

his claim that trial counsel provided ineffective assistance 

through Martinez, as it is not a substantial claim and, in aI}y 

event, PCR trial counsel would have recognized that trial counsel 

did adequately assert and argue that the trial evidence was 

insufficient to prove guilty beyond a reasonable doubt. As noted 

above, Petitioner cannot excuse the default of his appellate 

counsel, as Martinez does not extend to claims of ineffective 

assistance of appellate counsel. Id. As such, Petitioner is not 

entitled to relief on sub-part E of Claim V. 

3 In fact, as discussed above, trial counsel made this very 

objection, appellate counsel raised the claim as a preserved 

assignment of error on direct appeal, and the Oregon Court of 

Appeals issued a written decision on the claim. 

27 - OPINION AND ORDER -
III. Claims Not Addressed by Petitioner 

As noted above, Petitioner does not address the remaining 

claims in his Brief in Support of Amended Petition. Additionally, 

Petitioner does not attempt to refute Respondent's argument that 

these claims do not entitle him to habeas corpus relief. 

Accordingly, Petitioner has not sustained his burden of 

demonstrating why he is entitled to relief on his unargued claims. 

See Lampert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004) 

(petitioner bears burden of proving his case); Davis v. Woodford, 

384 F.3d 628, 638 (9th Cir. 2003) (same). Nevertheless, the Court 

has reviewed Petitioner 1 s unargued claims and is satisfied that 

Petitioner is not entitled to relief on the remaining claims 

alleged in his Petition for Writ of Habeas Corpus. 

CONCLUSION 

For these reasons, the Court DENIES the Amended Petition for 

Writ of Habeas Corpus (ECF No. 25) and DISMISSES this action. The 

Court DENIES a certificate of appealability as Petitioner has not 

made a substantial showing of the denial of a constitutional right. 

See 28 U.S.C. § 2253 (c) (2). 

IT IS SO ORDERED. 

DATED this_\ __ day of~, 2018. 

United States District Judge 

28 - OPINION AND ORDER -