FILED
NOT FOR PUBLICATION JUL 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUETT JOHN WATTS, No. 11-35155
Petitioner - Appellant, D.C. No. 6:10-cv-00375-HO
v.
MEMORANDUM*
RICK COURSEY,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted July 8, 2013
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
An Oregon jury convicted Petitioner Truett John Watts of murder. The
Oregon post-conviction courts rejected Watts’s contention that he received
ineffective assistance of counsel (IAC) at trial. Watts filed a federal habeas
petition raising the same IAC claim he presented in state post-conviction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
proceedings, and the district court denied the petition. We have jurisdiction over
Watts’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
The Oregon courts did not have a full and fair opportunity to act on the IAC
claim Watts presents here: that trial counsel should have pursued a defense theory
based on Watts’s Paxil ingestion and a rumor that the murder victim might have
sexually abused Watts.1 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Proper
exhaustion in state court requires a specific statement of operative facts supporting
a claim. Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012); Moormann v.
Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005). A claim is not exhausted merely
because the facts relied on by a petitioner in federal court were in the state-court
record. Gulbrandson v. Ryan, 711 F.3d 1026, 1042 (9th Cir. 2013). We affirm
based on Watts’s failure to exhaust his new claim in state court. 28 U.S.C. §
2254(b)(1)(A).
Alternatively, Watts’s IAC claim lacks merit. See 28 U.S.C. § 2254(b)(2) (a
habeas claim may be denied on its merits despite the petitioner’s failure to
exhaust). Watts denied ever being sexually abused, and even those who harbored
these suspicions denied having any proof that the sexual abuse occurred. Watts
points to no evidence that trial counsel failed to investigate all reasonably possible
1
Indeed, Watts did not articulate this allegation in the district court.
2
defense strategies, cf. Wiggins v. Smith, 539 U.S. 510, 524–25 (2003), and presents
no evidence that trial counsel’s decision to pursue an insanity defense, and to
forego a defense built on unconfirmed suspicions, was unreasonable under the
circumstances, see Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (stating a
court must “affirmatively entertain the range of possible reasons [] counsel may
have had for proceeding as [he] did.” (internal quotation marks omitted)); Knowles
v. Mirzayance, 556 U.S. 111, 127 (2009) (“The law does not require counsel to
raise every available nonfrivolous defense.”). Accordingly, Watts fails to rebut the
“strong presumption” that counsel rendered effective assistance. Harrington v.
Richter, 131 S. Ct. 770, 787 (2011) (internal quotation marks omitted).
AFFIRMED.
3