NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHN MICHAEL BRAY, No. 14-35011
Petitioner - Appellant, D.C. No. 6:03-cv-01762-TC
v.
MEMORANDUM*
JEFF PREMO, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted March 6, 2015
Portland Oregon
Before: PAEZ and IKUTA, Circuit Judges and SELNA,** District Judge.
John Michael Bray appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition challenging his conviction for two counts of aggravated murder,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
two counts of murder, and three counts of kidnapping. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we affirm.
1. Bray argues that the state postconviction court’s denial of his claim that
trial counsel were ineffective in investigating a testifying codefendant’s plea
agreement was unreasonable. See § 2254(d); Strickland v. Washington, 466 U.S.
668, 687–96 (1984); Davis v. Alaska, 415 U.S. 308, 318 (1974). This argument is
without merit. Trial counsel used a transcript from a September 3, 1992 meeting
between the prosecution and the codefendant in cross-examining the codefendant
about his plea agreement and his understanding of it. The state postconviction
court’s conclusion that trial counsel did not perform deficiently in not also
obtaining a letter from the codefendant’s attorney about his plea agreement did not
involve an unreasonable application of clearly established Supreme Court law. See
§ 2254(d)(1).
2. Bray argues that the state postconviction court unreasonably rejected his
claim that trial counsel were ineffective during the prosecutor’s questioning of
Bray and his codefendant about Bray’s alleged sexual misconduct with others and
with the codefendant. We disagree. During Bray’s testimony about his alleged
misconduct with others, trial counsel recognized the potentially prejudicial effect
of the prosecutor’s questions, decided not to object to avoid drawing the jury’s
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attention to the questions, and successfully argued against the prosecutor referring
to impermissible inferences during closing argument. The state postconviction
court was not unreasonable in determining that trial counsel made a reasonable
strategic decision. See Harrington v. Richter, 562 U.S. 86, 105 (2011); Strickland,
466 U.S. at 690–91. During the codefendant’s testimony about Bray’s alleged
misconduct with others and with the codefendant, trial counsel did not object on
the basis of Oregon Rules of Evidence 404(3) or 403. Yet trial counsel
successfully raised a hearsay objection to prevent the codefendant from testifying
about others’ allegations about Bray. And although trial counsel objected
unsuccessfully and only on relevancy grounds when the codefendant testified
about his own sexual contacts with Bray, this testimony related to evidence that
Bray had exercised control over the codefendant at the time of the murder. The
state postconviction court therefore was not unreasonable in determining that trial
counsel reasonably concluded that any further objections would be unsuccessful.
On this record, Bray fails to show that the state postconviction court’s conclusion
on deficiency was unreasonable under clearly established Supreme Court law. See
§ 2254(d); Strickland, 466 U.S. at 690–91.
3. Bray argues that the state postconviction court unreasonably denied his
claim that trial counsel were ineffective in presenting Bray’s military records
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during the penalty phase of the trial, but not the guilt phase. Bray’s military
records demonstrate his prior military service and honors. Yet, during the guilt
phase, his codefendant testified about how Bray had cited his military background
to intimidate the codefendant. Bray fails to show how the records could have
rebutted that testimony or demonstrated Bray’s psychological state at the time of
the murder. Thus, Bray fails to show that the state postconviction court’s decision
on Strickland’s prejudice prong involved an unreasonable application of clearly
established Supreme Court law. See § 2254(d); Strickland, 466 U.S. at 691–96.
4. Bray argues that the state postconviction court was unreasonable in
denying his claim that trial counsel were ineffective in failing to investigate penalty
phase fingerprint and other evidence linking Bray to a location containing large
amounts of illegal substances. Yet trial counsel consulted with two experts during
the penalty phase about whether Bray could rebut the relevant evidence. And trial
counsel cross-examined a witness to elicit statements indicating that two men other
than Bray had been associated with the location. Given trial counsel’s actions and
the evidence in the record, Bray fails to show that the state postconviction court
unreasonably determined that Bray failed to show any prejudice. See § 2254(d);
Strickland, 466 U.S. at 691–96.
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5.a. Bray also argues that he suffered prejudice from trial counsel’s
inadequate investigation of the fingerprint evidence before Bray rejected a pretrial
plea offer. See Lafler v. Cooper, 132 S. Ct. 1376, 1384–85 (2012). The State has
argued that this claim is a “new” claim on federal habeas review because Bray did
not refer to the plea offer in his ineffective assistance of trial counsel claims in his
initial state postconviction petition. See Dickens v. Ryan, 740 F.3d 1302, 1317–19
(9th Cir. 2014). As the record reflects, Bray raised this claim for the first time in
his postconviction appeal to the state court of appeals.
5.b. The district court agreed with the State and rejected this claim. It first
assumed without deciding that Bray’s argument was procedurally barred under
state law and that Bray could overcome the bar under Martinez v. Ryan, 132 S. Ct.
1309 (2012). The court then addressed the merits of Bray’s underlying claim that
trial counsel were ineffective in plea negotiations with the prosecutors. The court
concluded that on this record Bray cannot demonstrate prejudice resulting from
trial counsel’s performance relating to the pretrial plea offer. As noted by the
district court, Bray testified at his state postconviction deposition that had he
known of the fingerprint evidence before trial he would have “seriously considered
[the plea offer] a lot more.” He also stated, however, that “the only reason [he]
wouldn’t take the deal [wa]s because [the prosecutor] wanted [him] to take the deal
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for murder and [he] wouldn’t agree to a murder charge.” Other than these general
statements, Bray failed to provide information about the timing or substance of
plea negotiations. Thus, we conclude that Bray cannot meet the first requirement
of the Lafler analysis, see Lafler, 132 S. Ct. at 1384–85, and affirm the district
court’s denial of this claim.1
6. In addition to the certified issues, Bray seeks certificates of appealability
regarding two due process claims. See 9th Cir. R. 22-1(e). Because we conclude
that Bray has failed to make a “substantial showing of the denial of a constitutional
right,” we decline to expand the certificate of appealability. See § 2253(c)(2). Cf.
Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005).
AFFIRMED.
1
We also reject Bray’s claim of prejudice at the guilt phase resulting from
the cumulative impact of trial counsel’s alleged deficiencies. Cf. Harris By &
Through Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995).
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