NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 8 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MICHAEL DECKER, No. 15-35854
Petitioner-Appellee, D.C. No. 6:13-cv-01415-ST
v.
MEMORANDUM*
ROB PERSSON,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted July 8, 2016
Portland, Oregon
Before: PREGERSON, BEA, and OWENS, Circuit Judges.
Respondent-appellant appeals the U.S. District Court’s order granting David
Decker habeas relief from an Oregon State felony murder conviction with burglary
as the predicate felony offense. The District Court granted relief on three claims
under Strickland v. Washington, 466 U.S. 668 (1984).
Claim 1(B) addresses defense trial counsel’s failure to request a jury
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
instruction on the lesser included offense of assault. The District Court’s review of
this claim is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). 28 U.S.C. § 2254. The District Court held that the Oregon
state court decision constituted an unreasonable application of Strickland and
granted habeas relief on claim 1(B).
The two additional habeas claims on appeal, claims 1(F) and 1(C), deal with
defense trial counsel’s failure to address the intent element in Oregon’s burglary
statute. Claim 1(F) involves defense counsel’s failure to argue to the jury that
Decker lacked the intent required for a criminal defendant to be convicted of
burglary under Oregon law. Claim 1(C) involves defense counsel’s failure to
request a jury instruction explaining the intent required for a criminal defendant to
be convicted of burglary under Oregon law.
The District Court excused Decker’s procedural default on claims 1(F) and
1(C) under Martinez v. Ryan, 132 S. Ct. 1309 (2012) even though Decker failed to
raise these claims in the state habeas proceeding as required by Oregon law.
Id. at
1316 (holding that a federal court may excuse a state habeas petitioner’s
procedural default if the petitioner can show cause for the failure to raise the claim
and prejudice resulting from such failure); State v. Robinson,
550 P.2d 758,
25 Or.
2
App. 675 (1976) (per curiam) (holding that, under Oregon law, a claim of
ineffective assistance of counsel must be raised in the initial habeas proceeding).
The District Court also granted habeas relief on claims 1(F) and 1(C) upon de novo
review.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the
District Court’s decisions de novo. Crace v. Herzog,
798 F.3d 840, 846 (9th Cir.
2015).
With respect to claim 1(B), review of which is governed by AEDPA, we
reverse a state court’s decision if it “was contrary to, or involved an unreasonable
application of, clearly established [Supreme Court] law.” 28 U.S.C. § 2254(d)(1).
In this case, the relevant Supreme Court law is Strickland’s ineffective assistance
of counsel standard.
Defense counsel provided an affidavit explaining his decision not to request
an assault instruction. In light of defense counsel’s affidavit, the Oregon state
habeas court denied claim 1(B), holding that defense counsel’s decision not to
request an assault instruction was strategic.
The Oregon state court decision did not constitute an unreasonable
application of Strickland. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (trial
3
court’s ruling must be “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement”). We thus reverse the District Court’s grant of habeas
relief on claim 1(B).
Concerning claims 1(F) and 1(C): To be convicted of burglary under Oregon
law, a defendant must have intended to commit a crime at the time his permission
to remain in the victim’s dwelling is revoked. O.R.S. § 164.225 (A person
commits the crime of burglary in the first degree if the person “enters or remains
unlawfully in a [dwelling] with intent to commit a crime therein.”) (incorporating
by reference O.R.S. § 164.215, burglary in the second degree); In re J.N.S., 308
P.3d 1112, 1117–18,
258 Or. App. 310, 318–19 (2013) (“[T]he proper focus is on
the defendant’s intent at the initiation of the trespass. . . . If the trespass begins
when a defendant remains in a building after authorization has expired or has been
revoked, then we ask whether the defendant possessed the requisite criminal intent
at the time of the unlawful remaining.”). In other words, a defendant must have
the intent to commit a crime when he becomes a trespasser.
The District Court made the following relevant findings of fact:
[Kirk] Jones[, the victim,] began making sexual
4
advances toward [Justin] Starrett [Jones’s and Decker’s
mutual friend] and asked Starrett to spend the night. This
prompted [Decker] to begin teasing Starrett about the
overtures, making Starrett angry. According to [Decker],
Jones told them, “Well, if you’re going to act like that,
you should leave my apartment.”
At that point, Starrett unscrewed the shade of a
nearby lamp, picked up the lamp base with both hands,
said to Decker “this is what I think of faggots,” and
proceeded to hit Jones in the head two or three times.
[Decker] then declared it was “my turn” and proceeded to
pick up a half-gallon glass liquor bottle and throw it at
Jones’s head. The bottle bounced off the top of Jones’s
head, and he began to bleed heavily.
Starrett then picked up a knife and began cutting
Jones’s neck, telling him “this is what happens to faggots.”
Believing that Starrett was going to kill Jones, [Decker]
left the apartment and waited outside. When Starrett
emerged from Jones’s apartment, he informed [Decker]
that he had killed Jones.
....
The State’s medical examiner determined Jones
died of blunt force trauma to the head. He opined that
the knife wound to Jones’s neck was superficial and not
fatal. He noted that the injury to the top of Jones’s head
was consistent with having a bottle thrown at him, but
that he did not expect that specific injury was fatal by
itself. Thus, the jury could infer that Starrett’s blows
with the lamp were the likely cause of death.
The District Court found that Jones revoked Decker’s permission to remain
in the apartment when Jones said, “Well, if you’re going to act like that, you
should leave my apartment.” At trial, defense counsel did not discuss whether
Decker had the intent to assault Jones when Decker was told to leave. Defense
counsel did not argue that Decker lacked the intent necessary to be convicted of
5
burglary—the predicate felony for his murder charge. Defense counsel instead
argued a statutory affirmative defense. See O.R.S. § 163.115(3). We find that
defense counsel’s decision to argue an affirmative defense rather than Decker’s
lack of intent did not constitute ineffective assistance of counsel. See Strickland,
466 U.S. at 689. We therefore reverse the District Court’s grant of habeas relief on
claim 1(F).
As for claim 1(C), the Oregon trial court instructed the jury on the statutory
requirements of Oregon burglary law. The court’s instructions did not specifically
address the intent requirement—namely, that intent to commit a crime must exist at
the time the defendant’s presence in the victim’s home becomes unlawful. On
claim 1(C), the District Court held that trial counsel’s failure to request a jury
instruction on burglary’s intent requirement constituted ineffective assistance of
counsel. We defer our decision on claim 1(C), and remand to the District Court to
determine in the first instance whether the burglary instructions given by the
Oregon trial court to the jury were sufficient or insufficient concerning the intent
element of burglary under Oregon law.
We REVERSE the District Court as to claims 1(B) and 1(F) and
REMAND claim 1(C) for the District Court to determine in the first instance
whether the burglary instructions given by the Oregon trial court to the jury
6
were sufficient or insufficient concerning the intent element of burglary under
Oregon law.
7
FILED
Decker v. Persson, 15-35854
SEP 08 2016
BEA, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority’s reasoning and result as to Decker’s claims 1(B)
and 1(F). But instead of remanding claim 1(C) to the district court, I would reverse
the district court’s grant of habeas relief on this claim as well. The record shows
that the trial judge did instruct the jury that for the state to prove that Decker
committed burglary, the jury must find that “at the time of entering or remaining
unlawfully, David Decker had the intent to commit the crime of assault therein.”1
Because this jury instruction clearly and correctly addressed the intent element of
burglary under Oregon law, Decker’s 1(C) claim that his trial counsel was
constitutionally ineffective for failing to request a jury instruction explaining that
requirement is not supported by the record.
I respectfully dissent from the majority’s remand of claim 1(C).
1
Although the respondent-appellant did not include these jury instructions in
his excerpts of record, the instructions appear in the transcript of Decker’s statecourt trial, which was entered in the district court’s docket. Thus, the instructions
are part of the appellate record, and we may rely on them to decide this appeal. See
Ninth Circuit Rule 10-2 (“[T]he complete record on appeal [includes the] original
pleadings, exhibits and other papers filed with the district court.”); cf. Bolker v.
C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985) (explaining that “we have discretion to
address” issues not raised in the district court where “the pertinent record has been
fully developed”).
