Thomas Erickson v. Susan Washburn ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS GERALD ERICKSON, No. 20-35100
Petitioner-Appellant, D.C. No. 2:12-cv-01466-IM
v.
MEMORANDUM*
SUSAN WASHBURN, Superintendent of
Eastern Oregon Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Karin J. Immergut, District Judge, Presiding
Submitted August 10, 2021**
Seattle, Washington
Before: BEA, BRESS, and VANDYKE, Circuit Judges.
Petitioner Thomas Erickson appeals the district court’s 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 court’s decision de novo. Boyer v. Belleque, 659
*
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).
F.3d 957, 964 (9th Cir. 2011). We affirm.1
Petitioner raises two certified ineffective assistance of counsel (IAC) claims
based on his trial counsel’s 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 (1984).
Evaluation of counsel’s performance is “highly deferential,” and there is “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. 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 counsel’s
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The parties are familiar with the facts, so we discuss them here only as necessary.
2
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Here, Petitioner’s trial counsel’s 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. His counsel could have
reasonably interpreted Oregon law as rejecting both SOL arguments.
With respect to Petitioner’s 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, 827 P.2d
192, 194 (Or. Ct. App. 1992); see also State v. Harberts, 108 P.3d 1201, 1207 (Or.
Ct. App. 2005) (affirming Dufort), rev. den., 136 P.3d 1123 (Or. 2006). That was
the circumstance for Petitioner’s crimes, which is presumably why his trial counsel
didn’t pursue that foreclosed argument.
With respect to Petitioner’s 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 Statev. Eladem, 414 P.3d 426,
430 (Or. Ct. App. 2018), rev. den., 421 P.3d 352 (Or. 2018); Statev. Hutchison, 31
P.3d 1123, 1125 (Or. Ct. App. 2001). Petitioner’s trial counsel could have
reasonably viewed the report as insufficiently specific to trigger the SOL under
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Oregon law. See id.Because Petitioner’s trial counsel could have reasonably interpreted Oregon
law as rejecting both of his SOL arguments, his trial counsel’s choice not to raise
these arguments did not qualify as deficient assistance, nor was it prejudicial. See
Lowry, 21 F.3d at 346.2
AFFIRMED.
2
We decline to expand the Certificate of Appealability to include Petitioner’s
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).
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