David Decker v. Rob Persson

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 8 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID MICHAEL DECKER, No. 15-35854

Petitioner-Appellee, D.C. No. 6:13-cv-01415-ST

v.

MEMORANDUM*

ROB PERSSON,

Respondent-Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted July 8, 2016 Portland, Oregon

Before: PREGERSON, BEA, and OWENS, Circuit Judges.

Respondent-appellant appeals the U.S. District Court’s order granting David

Decker habeas relief from an Oregon State felony murder conviction with burglary

as the predicate felony offense. The District Court granted relief on three claims

under Strickland v. Washington, 466 U.S. 668 (1984).

Claim 1(B) addresses defense trial counsel’s failure to request a jury * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. instruction on the lesser included offense of assault. The District Court’s review of

this claim is governed by the…

MEMORANDUM *

Respondent-appellant appeals the U.S. District Court’s order granting David Decker habeas relief from an Oregon State felony murder conviction with burglary as the predicate felony offense. The District Court granted relief on three claims under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Claim 1(B) addresses defense trial counsel’s failure to request a jury instruction on the lesser included offense of assault. The District Court’s review of this claim is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”). 28 U.S.C. § 2254 . The District Court held that the Oregon state court decision constituted an unreasonable application of Stñckland and granted habeas relief on claim 1(B).

The two additional habeas claims on appeal, claims 1(F) and 1(C), deal with defense trial counsel’s failure to address the intent element in Oregon’s burglary statute. Claim 1(F) involves defense counsel’s failure to argue to the jury that Decker lacked the intent required for a criminal defendant to be convicted of burglary under Oregon law. Claim 1(C) involves defense counsel’s failure to request a jury instruction…

concurring in part and dissenting in part:

I agree with the majority’s reasoning and result as to Decker’s claims 1(B) and 1(F). But instead of remanding claim 1(C) to the district court, I would reverse the district court’s grant of habeas relief on this claim as well. The record shows that the trial judge did instruct the jury that for the state to prove that Decker committed burglary, the jury must find that “at the time of entering or remaining unlawfully, David Decker had the intent to commit the crime of assault therein.” 1 Because *524 this jury instruction clearly and correctly addressed the intent element of burglary under Oregon law, Decker’s 1(C) claim that his trial counsel was constitutionally ineffective for failing to request a jury instruction explaining that requirement is not supported by the record.

I respectfully dissent from the majority’s remand of claim 1(C).

. Although the respondent-appellant did not include these jury instructions in his excerpts of record, the instructions appear in the transcript of Decker’s state-court trial, which was *524 entered in the district court's docket. Thus, the instructions are part of the appellate record, and we may…