Blas Bravo v. Jeri Taylor , 646 F. App'x 554 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLAS RAMOS BRAVO, No. 15-35072
Petitioner - Appellant, D.C. No. 2:13-cv-01048-MA
v.
MEMORANDUM*
JERI TAYLOR,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted March 11, 2016
Portland, Oregon
Before: BERZON and WATFORD, Circuit Judges, and WALTER, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
Petitioner-Appellant Blas Bravo (“Petitioner”), an Oregon state prisoner,
appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.
We affirm.
Petitioner was convicted, after a jury trial, of second-degree sexual abuse, in
violation of Or. Rev. Stat. § 163.425, and tampering with a witness, in violation of
Or. Rev. Stat. § 162.285. The former conviction arose out of Petitioner’s sexual
relationship with an underage female. By a special verdict form, the jury also
found three aggravating factors, upon which the State ultimately sought upward
departure sentences. None of those factors were related to the victim’s age. The
sentencing court imposed the requested departure sentences of 60 months’
incarceration, as to each count, to be served consecutively to each other and to a
previously imposed 200-month sentence already being served by Petitioner.
In his federal habeas petition, Petitioner alleged, inter alia, that the
sentencing court improperly used, or relied upon, the victim’s age as an
aggravating factor in imposing departure sentences and that defense counsel
rendered ineffective assistance of counsel by failing to object to the sentencing
court’s use thereof. The district court denied the petition but granted a certificate of
appealability on the issue now before us: whether defense counsel was ineffective
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in failing to object to the sentencing court’s reference to the victim’s age as an
enhancement factor at sentencing.
Because the state post-conviction court decided Bravo’s ineffectiveness
claim on the merits, he can prevail on his habeas claim only if he can show that the
adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Regarding effective
assistance of counsel, under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), “[t]he pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101
(2011). “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law
is different from an incorrect application of federal law.’” Id. (quoting Williams v.
Taylor, 529 U.S. 362, 410 (2000)). AEDPA “is a difficult to meet and highly
deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011) (citations and internal quotation marks omitted).
The state post-conviction court’s denial of relief after applying Strickland
was not unreasonable. Read in context, the sentencing court’s mention of the
victim’s age did not equate to impermissible reliance thereon as an aggravating
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factor. Counsel for both Petitioner and the State acknowledged, prior to the court’s
sentencing colloquy, the impact of the victim’s age on the facts of this case. In
response, the court also acknowledged the victim’s age which, in this case, is the
fact that caused Petitioner’s actions to be a criminal violation of Or. Rev. Stat. §
163.425. The court then explicitly adopted the findings of the jury, as to the three
aggravating, non-age-related factors. It is undisputed that, on the basis of those
factors alone, the sentencing court was legally authorized to depart from the
presumptive sentence. Under Blakely v. Washington, 542 U.S. 296 (2004), the
determinative question is: could the judge have imposed the sentence given, solely
on the basis of the facts admitted or found by a jury? See 542 U.S. at 303-04. Here,
the answer is yes. Therefore, counsel’s failure to object was not objectively
unreasonable, nor did it prejudice the proceedings. The post-conviction court’s
conclusion that trial counsel was not constitutionally ineffective is neither contrary
to, nor an unreasonable application of, clearly established federal law. 28 U.S.C. §
2254 (d)(1); see also Williams, supra, 529 U.S. at 386 (AEDPA plainly sought to
ensure deference to the determinations of state courts which neither conflict with
federal law nor apply federal law in an unreasonable way). We accordingly affirm
the district court’s denial of Bravo’s habeas petition.
AFFIRMED.
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