Robert Bray v. Guy Hall

MEMORANDUM

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 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). Oregon law required Bray to preserve at trial his ar-igument that the prosecution failed to provide sufficient evidence of his intent to print the images. See, e.g., State v. Long, 246 Or. 394 , 425 P.2d 528, 529 (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, 307 Or. 183 , 766 P.2d 373, 375 (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…