ERICKSON v. WASHBURN (2021)

United States Court of Appeals, Ninth Circuit.2021-08-12No. No. 20-35100

Summary · law.co

Holding. The court affirmed the district court's denial of the habeas petition, finding that trial counsel's failure to raise the statute-of-limitations arguments did not constitute ineffective assistance because counsel could have reasonably interpreted Oregon law as rejecting both arguments.

Thomas Erickson appealed a district court's rejection of his federal habeas petition, raising two claims that his trial counsel provided ineffective assistance by failing to present statute-of-limitations arguments in his sex crime prosecution. Erickson argued that counsel should have raised that an older limitations period applied to most of his charges, and alternatively, that counsel should have investigated a report that would have triggered the limitations period under Oregon law, barring prosecution of certain crimes.

The appellate court applied the two-part test for ineffective assistance claims, requiring the petitioner to demonstrate both deficient performance and resulting prejudice. The court found that counsel's decisions fell within the range of reasonable professional assistance because Oregon courts had already rejected the first limitations argument more than a decade before trial, and the report Erickson relied upon was insufficiently specific under Oregon law to trigger the second limitations argument. Because counsel could have reasonably interpreted Oregon law as foreclosing both arguments, the court concluded no deficient performance occurred and affirmed the district court's denial of the habeas petition.

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Key issues

Whether trial counsel's failure to assert statute-of-limitations arguments constituted ineffective assistance of counsel
Whether the 1989 amendments to Oregon's limitations period applied retroactively to pre-1989 sex crimes
Whether a sexual misconduct report was sufficiently specific to trigger the limitations period under Oregon law

Procedural posture

Erickson appealed the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction on two certified ineffective assistance of counsel claims.

Authorities cited

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Opinion · public domain

MEMORANDUM **

Petitioner Thomas Erickson appeals the district courts denial of his habeas petition under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we review the district courts decision de novo. Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). We affirm.

Petitioner raises two certified ineffective assistance of counsel (IAC) claims based on his trial counsels purported failure to present two claimed meritorious statute-of-limitation (SOL) arguments. In his first certified claim, Petitioner argues that his trial counsel failed to argue that only the pre-1989 SOL applied to most of his sex crimes, which therefore barred prosecution of those crimes. In his second certified claim, Petitioner argues that his trial counsel failed to investigate a report of his sexual misconduct, which included eyewitness accounts indicating that Petitioner may have engaged in sexual misconduct with the victim, and that this report would have triggered the SOL under Oregon law and therefore barred prosecution of at least some of the sex crimes for which he was convicted.

To prevail on IAC claims, the petitioner must show both (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Evaluation of counsels performance is “highly deferential,” and there is “a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. A lawyer is not required to make an argument “which he knows to be meritless on the facts and the law” to adequately represent his client. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). And a petitioner claiming IAC must also establish a “reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Here, Petitioners trial counsels conduct fell well within the wide range of reasonable professional assistance, especially when applying Strickland’s highly deferential standard. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. His counsel could have reasonably interpreted Oregon law as rejecting both SOL arguments.

With respect to Petitioners first certified claim, more than a decade before his trial, Oregon courts had already determined that the 1989 amendments to the SOL applied to crimes committed before those amendments became effective—as long as the previous SOL for those crimes had not yet expired. State v. Dufort, 111 Or.App. 515, 827 P.2d 192, 194 (1992); see also State v. Harberts, 198 Or.App. 546, 108 P.3d 1201, 1207 (2005) (affirming Dufort), rev. den., 341 Or. 80, 136 P.3d 1123 (2006). That was the circumstance for Petitioners crimes, which is presumably why his trial counsel didnt pursue that foreclosed argument.

With respect to Petitioners second certified claim, the report Petitioner relies on did not disclose specific facts that formed any basis for the sexual misconduct offenses of which he was ultimately convicted. See State v. Eladem, 290 Or.App. 212, 414 P.3d 426, 430 (2018), rev. den., 363 Or. 119, 421 P.3d 352 (2018); State v. Hutchison, 176 Or.App. 363, 31 P.3d 1123, 1125 (2001). Petitioners trial counsel could have reasonably viewed the report as insufficiently specific to trigger the SOL under Oregon law. See id.

Because Petitioners trial counsel could have reasonably interpreted Oregon law as rejecting both of his SOL arguments, his trial counsels choice not to raise these arguments did not qualify as deficient assistance, nor was it prejudicial. See Lowry, 21 F.3d at 346.

AFFIRMED.

FOOTNOTES

. The parties are familiar with the facts, so we discuss them here only as necessary.

. We decline to expand the Certificate of Appealability to include Petitioners uncertified claim, and therefore dismiss the uncertified claim for lack of jurisdiction. See 9th Cir. R. 22–1(e); Doe v. Woodford, 508 F.3d 563, 569 (9th Cir. 2007).