Robert Bray v. Guy Hall

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERT WAYNE BRAY, No. 13-35689
Petitioner - Appellant, D.C. No. 2:11-cv-01128-SI
v.
MEMORANDUM*
GUY HALL,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted October 9, 2014
Portland, Oregon
Before: FISHER, CHRISTEN and NGUYEN, Circuit Judges.
Robert Wayne Bray appeals the dismissal of his petition for habeas corpus
under 28 U.S.C. § 2254 collaterally attacking his convictions under Oregon law.
Reviewing de novo, we affirm.
1. Bray failed to preserve his sufficiency of evidence claim at trial, so it is
procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Oregon law required Bray to preserve at trial his argument that the prosecution
failed to provide sufficient evidence of his intent to print the images. See, e.g.,
State v. Long, 425 P.2d 528, 529 (Or. 1967). The record does not show the
prosecution abandoned this theory of guilt, as Bray contends. The indictment
charged Bray with knowing possession of images depicting sexually explicit
conduct involving a child “with intent to print or display” them, so Bray was on
notice that either theory of guilt would suffice for conviction. Cf. State v. Hitz, 766
P.2d 373, 375 (Or. 1988) (observing that failure to press an issue “is no waiver,
once an issue has been raised” (emphasis added)).
2. Similarly, Bray’s claim that the prosecution committed misconduct when
it destroyed his hard drive is procedurally defaulted. Bray presented this claim for
the first time during his post-conviction proceeding. Oregon law required Bray to
raise this argument at trial given his knowledge of the hard drive’s destruction. See
Palmer v. State, 867 P.2d 1368, 1371 (Or. 1994). He failed to do so, and he is
therefore barred from raising it in his federal petition. See Coleman, 501 U.S. at
750.
3. The state court reasonably determined Bray’s trial counsel was not
ineffective. Although it did not specifically address whether Bray’s counsel should
have investigated the computer’s capacity to print, the state court’s conclusion that
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Bray did not suffer ineffective assistance is owed deference. See Harrington v.
Richter, 131 S. Ct. 770, 784 (2011). The record shows Bray’s trial counsel hired
an investigator who obtained and reviewed the available material found on Bray’s
computer. Because the hard drive was destroyed before Bray was indicted, his
counsel could not have obtained a mirror image copy of it or otherwise
investigated the hard drive. Therefore, the state court’s determination that Bray’s
counsel was not ineffective was reasonable. See id. at 787-88.
AFFIRMED.
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