Lambert v. Hall, No. 2:2015cv00847 - Document 86 (D. Or. 2018)

Court Description: OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus (# 27 ) is denied. The Court does, however, issue a Certificate of Appealability as to Petitioner's argued claims identified as Grounds One, Two, and Three of his Amended Petition. Signed on 11/7/2018 by Judge Michael H. Simon. (joha)
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Lambert v. Hall Doc. 86 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CHRISTOPHER TERRELL LAMBERT, Case No. 2:15-cv-00847-SI Petitioner, OPINION AND ORDER v. GUY HALL, Respondent. Kristina S. Hellman Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com SIMON, District Judge. Petitioner U.S.C. § 2254 brings this habeas challenging the corpus case legality pursuant of his to 28 state-court convictions for Attempted Murder, Assault, and Unlawful Use of a Firearm. Amended For the following Writ of Habeas Corpus (#27) reasons, the Petition for is denied. BACKGROUND On July 28, 2002, Petitioner visited the Quest nightclub in Portland where he became McClure. Bystanders thereafter, Petitioner stomach, separated Petitioner missed involved in a fired McClure, a the two handgun but leg. All three survived, men but, in McClure's struck Y'isha Rosbrough in the arm, dispute with Hollis Shontae shortly direction. Bell in the and Michael Newman in the and McClure and two other witnesses to the event identified Petitioner as the shooter. Police arrested Petitioner on August 11, 2002 and, eight days later, the Multnomah County Grand Jury indicted him on four counts of Second Degree, Degree, Firearm. Attempted and one eight Murder, count counts Respondent's of of Exhibit three counts Attempted Unlawful 102. Assault Assault Use The of of trial a in the Weapon court in the First with a appointed Richard Vogt to represent Petitioner. Petitioner began to construct a false alibi, prompting him to recruit witnesses to provide perjured testimony. He contacted Quadree Bradley, Jennifer Napolitano, and Brandon help him establish a misleading version of events. Napolitano agreed to help him in this endeavor. 2 - OPINION AND ORDER Jenkins to Bradley and Petitioner November 2002, next proceeded to secure different lawyer. he relieved Vogt of further representation, In and hired Randy Richardson for a flat fee of $20,000. Represented by new counsel, conference Petitioner's on January 30, case 2003 proceeded with to Multnomah a settlement County Circuit Court Judge Julie Frantz. During that settlement conference, the prosecutor offered to settle the case if Petitioner would plead guilty to various charges that resulted in a sentence of 140 months, but the case did not settle. Petitioner proceeded to a jury trial where he claimed that he was not at the Quest nightclub at the time of the shooting, and that the State's eyewitnesses respective identifications. Napolitano, both of whom testified that Lush nightclub contrary to at the the time The were of State's evidence, defense the mistaken called in Bradley Petitioner was shooting their at and at the Quest and, Petitioner was wearing blue jeans, a white shirt, a white visor, and white shoes. 1 In what became a turning point at testified that she had seen a friend of hers, trial, Napolitano Samoyya Morrison, on the night of the shooting outside the Quest nightclub, spoken to her for a period of 10-15 minutes. having regular contact with Morrison before and Napolitano denied that evening, and further denied that she had spoken with Morrison since the night of the shooting. The State called Morrison as a rebuttal witness who testified that, contrary to Napolitano's testimony, 1 she had The State's eyewitnesses testified that the shooter had been wearing a light-colored shirt with dark stripes and black pants. Trial Transcript ( 2 / 2 5 / 0 3 ) , pp . 2 4 9 , 3 5 5 - 5 6 . 3 - OPINION AND ORDER been with her shooting, outside spoke boyfriend nowhere of the with near at Moses Quest, Lake and club. She also Napolitano and had on had never testified last the her of the seen Napolitano she frequently that seen night less than three weeks before the trial. The jury found Petitioner guilty of all charges. Sentencing was postponed, Napolitano' s Morrison. however, trial testimony Napolitano Richardson, as because told he the was police so contradictory officers she "told me to wanted to police that her that of with call him if anything like testimony p. 2. was to to why talk this happened." 2 Respondent's Exhibit 117, admitted investigated She ultimately not truthful. She claimed that after the shooting, Petitioner called her from jail and sent her letters telling her what to say, description shooting. of clothing Richardson he told was wearing Napolitano to including a false the night destroy of the the letters because they might incriminate Petitioner. According to Napolitano, she attended a meeting held by Richardson at which Bradley and Petitioner's girlfriend, Rashida Peterson, were present. Richardson went over the story they were supposed to relate and showed them the clothes they were to describe Petitioner as wearing on the night of the shooting. Id at 17-19. Napolitano later told Richardson that she was hesitant to testify falsely on Petitioner's behalf but was also fearful of retaliation if she did not 2 lie because Petitioner's family Evidence would show 152 telephone calls between Richardson and Napolitano. CR 20-5, p. 65. 4 - OPINION AND ORDER knew where she lived. Richardson encouraged Napolitano to adhere to the fabricated resulting in a story and brief even sexual began to see relationship. her When Napolitano subsequently called Richardson to advise him that intend to testify falsely on Petitioner's socially, she did not behalf, Richardson became agitated. He showed up at Napolitano's apartment fifteen minutes later, consistently Napolitano and with offered the accepted her story $300 money he from and if she Lambert Richardson would had in testify established. exchange for her false testimony. According to Napolitano, in the aftermath of her testimony, Richardson had been particularly concerned about the portion of her testimony involving Samoyya Morrison because she was not part of the false alibi. Richardson instructed Napolitano to get in touch with Morrison and advise her not to answer her door so that the State would be unable to serve her with a subpoena to compel her appearance at trial. Morrison initially ignored authorities when they showed up at her home and knocked on her door, but subpoena. later answered As noted above, the door and was served with a Morrison appeared at trial and cast significant doubt on Petitioner's alibi. Authorities also interviewed Bradley after the trial, also admitted to providing false Petitioner in the form of a who testimony provided to him by letter sent through Rashida Peterson. Peterson was able to confirm Bradley's statements. Police also interviewed Brandon Jenkins, whose car had been hit by a bullet during the shooting. 5 - OPINION AND ORDER He claimed Petitioner had sent a letter to him, also by way of a third party, asking that he identify someone else as the shooter. Jenkins did not do as Petitioner asked, and instead kept the letter and provided it to the authorities during the post-trial investigation. Petitioner appeared for sentencing on April 17, 2003, but the trial judge informed the parties that sentencing would not take place. Richardson was not present in the courtroom at the beginning of the hearing because he was being served elsewhere in the courthouse with search warrants for his home, office, and person related moved to to Petitioner's disqualify criminal Richardson investigation put case. as As a result, counsel Richardson and the because State the new in the Petitioner conflicted position of co-conspirators. The prosecutor felt that Petitioner needed to be represented by independent counsel, but Richardson disagreed. He advised the trial court that Petitioner could waive any Petitioner's conflict option that whether to might exist, proceed and with that it Richardson was as counsel. Over the State's objection, the trial court asked Petitioner if he wished to have new counsel appointed to which Petitioner replied, CR 20-4, p. 241. "No, I'm comfortable with Mr. Richardson." The trial judge appointed independent counsel to consult with Petitioner, but allowed Richardson to remain as counsel of applicable record rules. until Four she days could more later, thoroughly however, the study trial the judge removed Richardson from the case and ultimately appointed Lisa Ludwig to represent Petitioner at sentencing. 6 - OPINION AND ORDER On December indicted 12, 2003, Richardson pertaining to and bribery, the Multnomah Petitioner perjury, and County with Grand various witness Jury charges tampering. While those charges were pending, sentencing regarding the Attempted Murder 4, took place on April sentence on the charges 2005. arising expressly stated that she misconduct with respect to from would the The judge, the not shooting consider falsified when imposing at Quest, Petitioner's evidence. She did, however, state: I find that the testimony and the exhibits regarding defendant's role and conduct in soliciting false testimony is reliable. This is clearly reprehensible behavior that cannot be tolerated by the Court, but the justice system, or by the public. It demeans our entire system. And it shows incredible disrespect and arrogance, and perhaps stupidity, as well, on the part of the defendant, and anyone involved with him, in attempting to subvert justice. Sentencing Transcript (4/5/2005), p. 181. She then proceeded to sentence Petitioner to a sentence totaling 250 months. Lisa Ludwig filed Petitioner's sentencing, based upon: (1) a Motion for New Trial shortly after claiming that a new trial was in order "irregularity insufficiency of the evidence. in the proceedings,n and (2) Ludwig argued that not only was Richardson's conduct reprehensible, but he failed to convey the State's plea offer to Petitioner such that he was the victim of ineffective assistance of counsel. Respondent's Exhibit 166. The trial court did not rule on the Motion which was deemed denied 7 - OPINION AND ORDER 55 days after its filing under Oregon's procedural rules. See ORCP 64 ( F) ( 1) . In May 2005, to Bribe a Commit Petitioner entered a guilty plea to Conspiracy Witness, Perjury, Bribing a Witness, Solicitation Tampering with Witnesses. to 22 months in prison, the sentence Richardson As a Commit result, Perjury, Perjury and the court sentenced him 18 of which it imposed consecutively to stemming proceeded to Criminal Conspiracy to to from the Attempted trial where he was Murder trial. acquitted of all charges. Petitioner took a certain treatment direct records trial court's P.3d 945 decision rev. (2009), alleged that should not have been The Oregon Court of Appeals affirmed Supreme Court denied review. 210 in which he of his victims admitted during his trial. the appeal without opinion, and the Oregon State v. Lambert, 228 Or. App. 756, denied, 347 Or. 533, 225 P.3d 43 (2010). Petitioner next for filed Umatilla County where, post-conviction relevant to this case, he relief in alleged that Richardson failed to relay the State's plea offer to him. The PCR not Court credible, of fer denied and that directly Respondent's decision, court's relief, but Judge to Exhibit the decision finding Frantz him 159, Oregon without the p. 2. Petitioner issuing a conference. appealed affirmed written Lambert v. was State's plea settlement of Appeals Oregon Supreme Court denied review. 8 - OPINION AND ORDER Petitioner communicated the during Court that the opinion, Coursey, this lower and the 2 65 Or. App. 759, 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 May 18, 2015, and amended his Petition with the assistance of appointed counsel on April 22, 2016 to state the following claims: 1. Richardson rendered ineffective assistance when he failed to inform Petitioner of the State's offer of a plea bargain, and failed to counsel Petitioner about the possibility of resolution of his case through plea negotiations; 2. Petitioner was deprived of his right to conflict-free representation where Richardson was motivated by his own personal and financial self-interest; 3. Petitioner was denied the effective assistance of counsel when he was represented by a trial attorney who had an unwaivable conflict of interest, and was motivated solely by his own personal and financial self-interest; and 4. Appellate counsel was ineffective for failing to raise on appeal the denial of Petitioner's Motion for New Trial. Amended Petition (#27). Respondent because: One; ( 1) (2) Petitioner asks the Court the Grounds is PCR Court Two unable and to to deny relief on these claims reasonably denied relief on Ground Three excuse nevertheless lack merit; and (3) burden of proof as to Ground Four. Ill 9 - OPINION AND ORDER are his procedurally default, and defaulted, the claims Petitioner fails to sustain is DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the (2) "based on an Supreme Court unreasonable of the United determination of States;" the or facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). § to. clearly A state established court decision precedent if is the "contrary state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] set of facts decision of that cases" or "if the state court confronts a are materially [the Supreme] indistinguishable from Court and nevertheless arrives result different from [that] precedent." Williams v. Taylor, a at a 529 U.S. 362, 405-06 (2000). § Under the 2254 ( d) ( 1) , a state from court [the "unreasonable federal identifies Supreme habeas the Court's] application" court may grant correct decisions governing but clause relief legal of "if the principle unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" decision to be more than 10 - OPINION AND ORDER clause requires the state court incorrect or erroneous. Id at 410. Twenty-eight U.S.C. 2254 (d) § "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree [the that Supreme] the state Court's court's precedents. decision conflicts with It goes farther." no Harrington v. Richter, 562 U.S. 86, 102 (2011). Twenty-eight U.S. C. to "challenge the attempt to show substantial 2254 (d) ( 2) § substance of the that evidence those in also allows a petitioner state court's findings the state were court not findings and supported by record." Benedetti, 693 F.3d 1140, 1146 (9 th Cir. 2012). Hibbler v. 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,' we must be 'particularly colleagues.'" Hernandez v. 2014) Taylor v. (quoting deferential Holland, Maddox, especially because to our 857 ( 9th Cir. 1000 ( 9 th Cir. 750 F.3d 843, 366 F. 3d 992, state-court 2004)). II . Ground One Petitioner constitutionally State's plea negotiations. claims first ineffective offer, As an or when 11 - OPINION AND ORDER he otherwise initial Richardson that matter, failed counsel the to him Court was convey the on plea notes that Petitioner support Such § attempts his to rely claim which he evidence is not on a variety of new never presented to properly considered evidence the to PCR Court. here. u.s.c. 28 2254 (d) (1); Cullen v. Pinholster, 563 U.S. 170, 182-83 (2011). Accordingly, this Court considers only the evidence that was properly at issue in Petitioner's PCR proceeding. Because no Supreme Court precedent is that corresponds to the facts of this case, general two-part test established by directly on point the court uses the the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. First, below Knowles Mirzayance, 556 U.S. 111, 122-23 (2009). Petitioner must show that his counsel's performance fell an objective Washington, in v. 466 U.S. evaluating standard of 668, 686-87 counsel's reasonableness. Strickland v. (1984). Due to the difficulties performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689. Second, Petitioner must show that his counsel's performance prejudiced the whether defense. Petitioner probability that, The appropriate can but for show "that test there for is prejudice a is reasonable 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 12 - OPINION AND ORDER of the trial. Id at 696. When Strickland's general standard is combined with the standard of review governing result is a 28 U.S.C. 2254 § "doubly deferential habeas judicial corpus cases, review." the Mirzayance, 556 U.S. at 122. During the PCR proceeding, Petitioner submitted two pieces of evidence relevant to his Ground One claim. First, offered his own Affidavit previously filed in support Motion for New Trial in which he claimed that "Mr. never asked [during the settlement conference] the sentence bargain." would Respondent's offered Lisa support his if Exhibit Ludwig's Motion be I 166, Affidavit for New was p. which Trial. In 14. In had her Richardson nor was I interested he of his or at any other time if I was willing to make a plea bargain, what Petitioner in a told plea addition, also he used Affidavit, to Ludwig stated that her review of Richardson's file failed to show any indication that he conveyed the State's plea offer to Petitioner. Id at 11. The State countered by offering prosecutor in which she stated that, with these improbable types that of settlement petitioner would the Affidavit of the "based upon my experience hearings, have it been seems unaware highly of the possibility of settlement and its terms." Respondent's Exhibit 120, pp. offered 1-2. a Consistent with this Affidavit, letter from Judge 13 - OPINION AND ORDER Frantz wherein the she State also stated that although she did not recall the particulars of Petitioner's settlement conference, she could outline her standard approach to cases settling criminal that she decades." Respondent's Exhibit 174, p. involved Judge Frantz had 1. reviewing with a "followed for two Part of that approach defendant the possible sentence if convicted at trial, and then proceeding to "discuss the is being contemplated, of going to plea defendant proposal can that weigh the risk trial so the versus the certainty of a plea proposal if approved by the senior DDA' s." Id at 3. Judge Frantz did state, however, that "[v]ery, very seldom, but perhaps specifically before she defendant. the a couple recall," had an Id at 4. of times settlement opportunity in cases conferences to speak Petitioner. I ended directly do not abruptly with a Given the remainder of the record, however, remote instances mentioned by Judge included which Specifically, Frantz would not have although he stated in his Affidavit seeking a new trial that Judge Frantz never conveyed the particulars of the State's plea offer to him, he did agree that Judge Frantz had met personally with him and told him what his maximum sentence would be if convicted at trial, and that a plea deal would reduce his sentence. p. 14. 14 - OPINION AND ORDER Respondent's Exhibit 166, The finding PCR that Respondent's Court rejected Petitioner Exhibit 159, Petitioner's "refused p. 2. to The accept Ground any PCR Court One plea also claim, offer." made the following findings: 3. Based on [Petitioner's] behavior in this case and his subsequent convictions, it is clear that he has no respect for the truth and is totally without credibility. * * * * * 7. This court also does not believe that during the course of the judicial settlement conferment, the judge didn't explain any plea off er or the process of an offer to [Petitioner] . [Petitioner] raised this issue in [his] motion for a new trial and the motion was denied and could have been appealed. 8. R. Richardson's trial performance (disregarding the use of perjury for a moment) was more than adequate. 9. Lambert comes to this court as a coconspirator of Richardson. Before retaining Richardson, Lambert had already arranged for three witnesses to lie. Richardson clearly had an ethical and legal obligation to refuse to use the defense, but Lambert didn't care about any of that. He cannot now complain about the course of conduct he initiated, paid for and participated in. There is no evidence or even claim that he would have abandoned the defense or that he regrets the conspiracy--only that he regrets losing. Respondent's Exhibit 159, pp. 2-3. Petitioner states that he was not with Richardson at the time that the State made its plea offer, and the evidence showed 15 - OPINION AND ORDER that nothing in Richardson's file indicated notes that Richardson communicated the plea offer to his client. Petitioner argues that there was no evidence in the record to support the PCR Court's factual determination that Judge Frantz actually communicated the State's plea offer to him, 3 thus he believes the PCR Court's factual finding on this point amounts to mere speculation. Petitioner presented the plea offer issue to the PCR Court for a determination, thus placing that court in the position of having to render a decision based upon a rather scant record of something that might, or might not have, The that PCR Court credibility, therefore find thereby left any found Petitioner negating only with the specific was completely lacking Petitioner's Affidavit. It fact notation been orally conveyed. in that Ludgwig was Richardson's files was unable to that he communicated the plea of fer to Petitioner. The absence of that information did never plea of fer with establish that Petitioner, Richardson nor did it not discussed the speak directly to whether Judge Frantz conveyed the plea offer to Petitioner when 3 Petitioner also asserts that the PCR Court erroneously stated that Petitioner could have appealed the issue on direct review because the issue pertained to ineffective assistance of counsel, something that can only be raised during a PCR proceeding in Oregon's courts. It is not appropriate for this Court to second-guess the PCR Court's ruling on this state-law procedural issue. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). In any event, the resolution of Petitioner's Ground One claim does not depend on whether the PCR Court correctly interpreted Oregon law concerning the appealability of the denial of Petitioner's Motion for New Trial. 16 - OPINION AND ORDER she met with him personally. Indeed, given Judge Frantz's letter and the prosecutor's Affidavit, there was evidence in the record from which the PCR Court could make a reasonable factual finding that Judge Frantz conveyed the State's plea offer of 140 months directly to Petitioner. Certainly, Petitioner has not presented clear and convincing evidence to the contrary to overcome this factual finding. See 28 U.S.C. 2254 (e) (1). § Consequently, even if Richardson failed to communicate the plea deal to his client, such an omission did not result in prejudice to Petitioner. Petitioner fails to establish prejudice for another reason, as well. findings Assuming he could regarding his overcome lack of the PCR Court's credibility and Judge factual Frantz' s communication of the plea offer, he has not overcome the finding that he was not prepared to accept a plea deal (let alone a 140month plea deal) . Even prior to sentencing), sentence but regarding Respondent's after the was willing to surrounding events Exhibits (but the State offered Petitioner a 120-month only if he the jury had convicted him 175 & 176, p. off er his the 2. cooperation Attempted Murder. Petitioner, however, flatly refused to offer his cooperation as to the incident. Id. Respondent's Exhibit 176, p. 2. Even in his Motion for New Trial predicated upon the alleged failure to communicate a plea offer, Petitioner stated only that he would have "considered" the State's plea offer had it been conveyed, not that he would have 17 - OPINION AND ORDER accepted it. reasons, the contrary to, Respondent's Exhibit 166, PCR Court's nor an established federal denial of unreasonable law. p. 14. this For all of these claim application is neither of clearly The decision also did not involve an unreasonable determination of the facts in light of the evidence presented. III. Grounds Two and Three As Grounds Two and Three, Petitioner argues that he was denied his right to conflict-free representation. The Court must first resolve whether Petitioner can overcome his adequately preserve Grounds Two and Three in the through a showing parties agree of that cause the and Court prejudice. is developed in the PCR proceeding, not In limited failure to state courts doing to so, the the record thus the Court also considers all of Petitioner's Exhibits, most of which are newly developed. A. Exhaustion and Martinez A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, through a direct appeal or collateral proceedings, either before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 ( 1982) . A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards 18 - OPINION AND ORDER v. Carpenter, 529 U.S. U.S. 722, 750 446, (2000); Coleman v. 451 Thompson, 501 (1991). Petitioner concedes that Grounds Two and Three are procedurally defaulted because he failed to fairly present them to Oregon's state courts during his PCR proceedings. He argues, however, the that his PCR attorney was ineffective for not raising claims such that he can excuse his default by way of a showing of cause and prejudice pursuant to Martinez v. Ryan, 566 U.S. 1, 4 (2012). 1. Standards Traditionally, used to default. the establish the performance of PCR counsel could not be cause Coleman v. Thompson, constitutionally constitutes ( 1987) cause); (there is no and prejudice 501 U.S. ineffective Pennsylvania excuse 722, a 753-54 Finley, right to procedural (1991) assistance v. constitutional to of (only counsel U.S. 551, 556 counsel in a PCR 481 proceeding). However, in Martinez v. Ryan, 566 U.S. 1, 4 (2012), the Supreme Court found "it . necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." "Inadequate assistance of counsel proceedings may establish cause at for Id at 8. It concluded, initial-review collateral a prisoner's procedural default of a claim of ineffective assistance at trial." Id. 19 - OPINION AND ORDER In order to establish cause to excuse his default pursuant to Martinez, Petitioner must show that his underlying claim of ineffective assistance of trial counsel is substantial insofar as it has "some merit." He must also demonstrate that his PCR attorney was ineffective under the 4 66 U.S. standards of Strickland v. ( 1984) for failing to raise the claim. "[T]o fulfill this requirement, a petitioner must not only show Washington, that PCR counsel prejudiced 668 performed petitioner, probability that, deficiently, i.e., that but there also was that this a reasonable absent the deficient performance, the result of the post-conviction proceedings would have been different." Runningeagle v. Ryan, (quotation omitted). necessarily require reasonable probability 825 Such the 970, F.3d finding, a Court to that the ( 9th 982 conclude of Cir. course, that 2017) would there is a ineffective trial-level assistance claim would have succeeded had it been raised. Id. 2. Analysis To evaluate Petitioner's cause and prejudice argument, Court raised Sixth looks to the in Grounds Amendment representation. viability of Two and Three carries Wheat v. with the attorney conflict of the Amended it a United States, right to 486 U.S. the claims Petition. The conflict-free 153 (1988). In order to establish a Sixth Amendment violation, a petitioner who raised no objection at trial must show that "an actual conflict 20 - OPINION AND ORDER of interest adversely affected his lawyer's performance." Cuyler v. 446 U.S. Sullivan, that his a 335, 348 (1980). "[A] defendant who shows conflict of interest actually affected the adequacy of representation need not demonstrate prejudice in order to obtain relief." Id at 349-50. Petitioner contends that Richardson held a his former Office, employer, the Multnomah County from which he had resigned while investigation into questionable grudge against District Attorney's suspended pending an practices and tactics. Petitioner's Exhibit 62. Petitioner asserts that Richardson, who was disbarred by the time PCR counsel filed his Amended Petition, was absolutely fixated on besting his former employer at trial, leaving him motivated solely by his own self-interest and causing him to hide the State's plea offer from Petitioner. Petitioner reasons that where an actual, interest existed between Richardson unwaivable conflict of and him, PCR counsel was obliged to present the issue to the PCR Court. The first presumed Sullivan's conflict between instances present 162, 168 problem an involving in presumption of the Petitioner's prejudice in attorney and multiple Petitioner's (2002), with case. the his argument presence client representation, In Mickens v. of is a 21 - OPINION AND ORDER "is justified an that actual limited situation Taylor, Supreme Court determined that prejudice is 535 to not U.S. Sullivan's because joint representation and because defendants of conflicting interests counsel's conflicting is inherently suspect, obligation is to multiple . make it difficult to measure the precise harm . arising from counsel's errors." 535 U.S. at 168. The Ninth emphasized actively Circuit that recognized "[t]he a showing required Sullivan represented that conflicting interests, Court Mickens that counsel which did not support the expansive application to other sorts of conflicts or ethical violations, such as conflicts between a client's welfare and counsel's financial interests." United States v. Wal ter-Eze, 869 F.3d stated 891 (2017) that the (internal quotation Court "Mickens omitted). specifically It and further explicitly concluded that Sullivan was limited to joint representation" and that anything else amounted to an open question. Earp v. Ornoski, 431 F.3d 1158, 1184 (9 th Cir. 2005). Similarly, Oregon law has not extended Sullivan beyond the scope of joint representation. 327, 330 Al though (1988); Clark v. Petitioner See Datta v. Oregon, directs this Keeney, 267 Or. App. Court to 544, cases 90 Or. App. 550 (2014). that predate Mickens, do not directly discuss Sullivan, or are from judicial districts that are not binding on this court or Oregon's state courts, law was they are not persuasive to show that this area of the so well established in Plaintiff's favor that PCR counsel was obligated to raise a Sullivan claim in state court. 22 - OPINION AND ORDER See Sophanthavong 2004) v. Palmateer, 378 F.3d 859, 870 (9th Cir. ("Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms."). Putting aside the claim that Richardson limited scope of Sullivan, was a motivated by Petitioner's blinding desire to prevail against his former employer at trial no matter the cost is belied including settled prior by three with to the record. Respondent involving the serious Multnomah Petitioner's County trial. identifies felonies, District Respondent's seven that Richardson Attorney's Exhibit cases, Office 178. These dispositions suggest Petitioner's decision to forego a plea was not based upon any obstinate refusal to enter a guilty plea on Richardson's part. While Petitioner correctly asserts that the record does not contain all of the particulars of these cases, the fact that Richardson settled all of them with the Multnomah County District Attorney's Office belies Petitioner's assertion that Richardson was motivated only by his own desire to prevail in cases involving his former employer by refusing to settle, taking the cases to trial irrespective of his client's interest, and using any means necessary to prevail. Even if Petitioner could prove that Richardson's own personal and overriding interest was to proceed to trial without advising Petitioner of approach does not the appear 23 - OPINION AND ORDER State's to 140-month plea offer, conflict with Petitioner's this own desires. As the PCR Court found in this case, Petitioner "had already decided his defense and had arranged the witnesses the time he retained [Petitioner's] request, he and witnesses were "Richardson going to lie knew at that by the [Petitioner's] Petitioner "clearly never attempted to change the plan 11 his indicated crimes. Richardson, 11 attorney a willingness Respondent's fabricated had his own agreed to admit Exhibit alibi to[,] 159, before he and 11 his Petitioner participation p. in his Where Petitioner retained Richardson, 2. ever never Richardson's purported desire to prevail at trial by any means necessary was consistent with Petitioner's own approach to the case. There is further evidence of Petitioner's unwillingness to accept a plea offer from the State. trial, Petitioner: After he was convicted at (1) rebuffed the State's 120-month plea offer because he was unwilling to cooperate with the its investigation pertaining to the Quest would not be willing to months for all shooting; settle convictions, witness tampering. for and that he any sentence exceeding 90 including (2) expressed those Respondent's Exhibits 175 & associated 176. with Given that Petitioner was unwilling to settle for a 120-month sentence in the wake of his conviction, have accepted a he cannot establish that he would 140-month offer prior to trial that include a resolution of the witness tampering charges. 24 - OPINION AND ORDER did not PCR counsel not to raise predicated had a variety of strategically an ineffective assistance on a conflict Richardson. As a result, below an objective of interest sound of trial between reasons counsel claim Petitioner and PCR counsel's performance did not fall standard of reasonableness, thus Petitioner fails to establish cause and prejudice to excuse his default. IV. Ground Four Finally, ineffective Petitioner for failing Motion for New Trial. his briefing proof. and, See Silva v. (Petitioner bears alleges to appeal the appellate counsel denial Petitioner's of Petitioner has not argued this therefore, Woodford, the that burden has not sustained 279 F.3d 825, of proving 835 his his claim in burden (9th Cir. claims) . Petitioner had briefed the merits of this claim, was of 2002) Even if the court has examined it based upon the existing record and determined that it does not entitle him to relief. Ill Ill Ill Ill Ill Ill Ill Ill 25 - OPINION AND ORDER CONCLUSION For the reasons identified above, Writ of Habeas Corpus (#27) is denied. the Amended Petition for The Court does, however, issue a Certificate of Appealabili ty as to Petitioner's argued claims identified as Grounds One, Two, and Three of his Amended Petition. IT IS SO ORDERED. DATED this 1 r't--- day of November, 2018. Mic ael H. Simon United States District Judge 26 - OPINION AND ORDER