Brandon Long v. Richard Coursey , 683 F. App'x 561 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON M. LONG, No. 16-35033
Petitioner-Appellant, D.C. No. 2:13-cv-02139-SB
v.
MEMORANDUM*
RICHARD COURSEY, Superintendent,
Eastern Oregon Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted March 8, 2017**
Portland, Oregon
Before: O’SCANNLAIN, FISHER and FRIEDLAND, Circuit Judges.
Brandon Long appeals the district court’s denial of his 28 U.S.C. § 2254habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Brandon Long was convicted of one count of attempted first-degree rape in
violation of OR. REV. STAT. §§ 163.375, 161.405; two counts of attempted first-
degree sodomy in violation of OR. REV. STAT. §§ 163.405, 161.405; and two
counts of attempted first-degree sexual abuse in violation of OR. REV. STAT. §§
163.427, 161.405. On two of these counts, the state court found upward departure
sentences were warranted based on certain aggravating factors, including that Long
violated court orders. Long argues that the court violated his right to jury
factfinding under Blakely v. Washington, 542 U.S. 296 (2004), when it imposed
upward departure sentences and that he was denied constitutionally effective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), when
his attorney allegedly failed to advise him of his Blakely rights.
“We review de novo the district court’s denial of a petition for writ of
habeas corpus.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Under the
Antiterrorism and Effective Death Penalty Act, a petitioner seeking habeas relief
must demonstrate that the state court’s decision on the merits was contrary to, or
involved an unreasonable application of, clearly established federal law under
United States Supreme Court precedent, or that the decision was based on an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
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1. Assuming arguendo Long’s Blakely rights were violated, the violation
was harmless. See Washington v. Recuenco, 548 U.S. 212, 215, 218 (2006)
(holding Blakely violations are subject to harmless error review); United States v.
Salazar-Lopez, 506 F.3d 748, 752 (9th Cir. 2007) (same). The inquiry under the
harmless error standard is whether “in light of the record as a whole,” the error
“had substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). Under that test, habeas relief is appropriate only
if the court is “in grave doubt as to whether a jury would have found the relevant
aggravating factors beyond a reasonable doubt.” Butler v. Curry, 528 F.3d 624,
648 (9th Cir. 2008) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).
Under Oregon law, a court may base an upward departure sentence on a
single aggravating factor. See State v. Barrett, 894 P.2d 1183, 1185 (Or. Ct. App.
1995); State v. Williams, 883 P.2d 918, 919 (Or. Ct. App. 1994). Where, as here, a
court makes clear that each of the aggravating factors independently justified the
departure, a Blakely error will be harmless if it is not prejudicial as to at least one
of the cited factors. See Barrett, 894 P.2d at 1185.
The record shows Long violated court orders by failing to enroll in sex
offender treatment for longer than a week and by having contact with his children.
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Long suggests no reason why the jury would not have found these violations
beyond a reasonable doubt. On this record, therefore, there is no grave doubt the
jury would have found one or both of these aggravating factors.
2. Assuming arguendo Long’s trial counsel’s alleged failure to advise him
of his Blakely rights fell below an objective standard of reasonableness, no
prejudice resulted. See Strickland, 466 U.S. at 694. There is no reasonable
probability Long’s sentence would have been different but for his counsel’s error,
because the record shows a jury would have found Long violated court orders, and
thus that an aggravating factor was satisfied.
AFFIRMED.
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