FILED

NOT FOR PUBLICATION

AUG 08 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS GERALD ERICKSON, No. 15-35320

Petitioner-Appellant, D.C. No. 2:12-cv-01466-BR

v.

MEMORANDUM*

RICK COURTNEY, Superintendent at East Oregon Correctional Institution,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submitted March 10, 2017 Portland, Oregon

Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,** District Judge.

Petitioner Thomas Gerald Erickson appeals the district court’s judgment

dismissing his petition for writ of habeas corpus. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. U.S.C. §§ 1291 and 2253. We review de novo. Smith v. Ryan, 823 F.3d 1270,

1278-79 (9th Cir. 2016). We reverse and remand.

1. Trial court proceedings. Erickson was charged in 2003 with various sex

offenses committed against his daughter. Evidence at Erickson’s jury trial

included testimony that the alleged abuse had been reported to an authority at least

ten years earlier. Erickson’s trial counsel moved for a judgment of acquittal on

statute of limitations grounds. The trial court denied the motion and Erickson was

convicted of first-degree sodomy, first-degree sexual abuse, and attempted first-

degree rape. On direct review, Erickson’s appellate counsel did not raise the

statute of limitations issue. The Oregon Court of Appeals affirmed the convictions,

and the Oregon Supreme Court denied review.

2. State post-conviction proceedings. On August 3, 2010, Erickson filed

pro se a state petition for post-conviction relief, raising several claims of

ineffective assistance of his trial counsel (IATC), including a claim that trial

counsel failed to argue effectively for acquittal on statute of limitations grounds.

Erickson’s pro se petition did not include supporting documents. The post-

conviction court appointed counsel for Erickson. On November 4, 2011, Erickson

filed a notice with the post-conviction court concerning the attorney’s allegedly

deficient performance, stating that the attorney failed to work on his case. The

2 15-35320 post-conviction trial court denied Erickson’s request for new counsel and

admonished the parties to “work together.” On January 31, 2011, the appointed

counsel filed a notice that Erickson’s pro se petition, filed without supporting

documents, was Erickson’s formal post-conviction petition. On February 1, 2011,

the state moved for summary judgment on the grounds that Erickson failed to

attach any evidence supporting the petition, as required by Or. Rev. Stat.

§ 138.580.1 On February 9, 2011, Erickson moved pro se to dismiss his appointed

counsel for failure to perform. The post-conviction trial court notified Erickson

that it would not accept his pro se motion because Erickson was represented by

counsel. Erickson’s appointed counsel filed no response to the motion for

summary judgment. On March 9, 2011, the post-conviction trial court granted the

state’s summary judgment motion and dismissed Erickson’s pro se petition with

prejudice. Erickson appealed pro se the summary judgment. A newly-appointed

post-conviction appellate counsel filed a brief stating that he found no meritorious

issues for appeal. The Oregon Court of Appeals affirmed without opinion.

Appellate counsel declined to petition for review in the Oregon Supreme Court.

1 Or. Rev. Stat. § 138.580 provides, in relevant part, “[a]ffidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition.”

3 15-35320 Erickson petitioned pro se for review to the Oregon Supreme Court and his petition

for review was denied.

3. Federal habeas proceedings. In 2013, Erickson filed pro se a petition for

federal habeas relief alleging his IATC claim as well as ineffective assistance of his

post-conviction counsel for failure to effectively raise the IATC claim. The district

court denied the habeas petition, concluding that Erickson has procedurally

defaulted his IATC claim. The district court determined that the post-conviction

trial court’s dismissal for noncompliance with Or. Rev. Stat. § 138.580 was a

decision on the merits.

This court granted a certificate of appealability on the issue whether the

district court properly ruled that the IATC claim was procedurally defaulted.

4. Procedural default. Erickson acknowledges that his IATC claim was

procedurally defaulted because his post-conviction counsel did not raise the IATC

issue in Oregon’s appellate courts. He contends that the post-conviction trial court

did not make a decision on the merits, and his procedural default is excused under

an exception articulated in Martinez v. Ryan, 566 U.S. 1 (2012). We agree.

In Martinez, the Supreme Court instructed that a procedural default caused

by the failure of state post-conviction trial counsel to raise an IATC claim may be

excused if the petitioner can demonstrate that (1) appointed counsel in the post-

4 15-35320 conviction trial court was ineffective under the standards of Strickland v.

Washington, 466 U.S. 668 (1984); and (2) the underlying IATC has some merit.

Martinez, 566 U.S. at 14. This exception does not apply if a claim was litigated on

the merits in the state court. Detrich v. Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013)

(en banc).

Here, the post-conviction trial court’s dismissal for the reason that Erickson

failed to attach documents to his petition was not a decision on the merits. See

Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013) (describing a “decision on the

merits” as one involving an assessment of “[t]he intrinsic rights and wrongs of a

case as determined by matters of substance, in distinction from matters of form.”)

(internal citations omitted). The post-conviction trial court did not assess the

merits because post-conviction trial counsel provided the court with no evidence

whatsoever. Moreover, following the state’s motion for summary judgment for

failure to comply with Or. Rev. Stat. § 138.580, Erickson’s counsel failed to

respond to the state’s summary judgment motion. With no statutorily-required

supporting materials, allegedly caused by either the inadequacy or abandonment of

appointed counsel, the post-conviction trial court could not make a substantive

evaluation of the intrinsic merits of Erickson’s claims. Cf. Ogle v. Nooth, 330 P.3d

572, 584 (Or. 2015) (holding that Or. Rev. Stat. § 138.580 does not require

5 15-35320 attachment of evidence that meets some particular standard of reliability, but

requires attachment of “some evidence supporting each element of each asserted

claim for relief”). In this circumstance, the post-conviction trial court’s dismissal

of Erickson’s petition hinged upon a matter of procedural form rather than

substance, as well as alleged inadequacy. See Johnson, 133 S. Ct. at 1097

(explaining that when a federal claim is rejected or overlooked in state court due to

inadvertence, a prisoner is entitled to make his case before a federal judge).

Erickson contends that his post-conviction trial counsel was ineffective

under Strickland, and the underlying IATC was substantial. The respondent does

not address these contentions in its briefing, thus effectively conceding Erickson’s

arguments.2 Cf. Nardi v. Stewart, 354 F.3d 1134, 1142 (9th Cir. 2004) (noting that

when respondent makes no mention it its brief of certain issues that have been

raised, respondent effectively waives the arguments), overruled on other grounds

by Day v. McDonough, 547 U.S. 198, 209 (2006). Accordingly, Erickson has met

2 Even if the respondent had not waived these issues, Erickson appears to meet the requirements for the Martinez exception. His post-trial counsel essentially abandoned him by choosing to rely on an obviously procedurally deficient petition and failing to respond to the motion for summary judgment, which could constitute deficient performance under Strickland. And at least one of Erickson’s statute-of-limitations-based IATC arguments has some merit. See Martinez, 566 U.S. at 14.

6 15-35320 the narrow exception in Martinez. We reverse the judgment of the district court

and remand for further proceedings.

REVERSED and REMANDED.

7 15-35320

FILED

Erickson v. Courtney, 15-35320

AUG 08 2017

BENITEZ, District Judge, dissenting. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Because this is a simple case of an unexhausted meritless habeas claim, I

respectfully dissent and would affirm the district court’s dismissal.

In the initial post-conviction proceedings, the state court dismissed the

petition. The dismissal order was short. It did not say that the dismissal was based

solely on procedural grounds. It simply said: “The Court being first fully advised,

and finding there is no genuine issue of material fact, and that the defendant is

entitled to judgment as a matter of law, Now, THEREFORE, IT IS ORDERED that

defendant’s Motion for Summary Judgment is granted. IT IS FURTHER

ORDERED that petitioner’s pro se Petition for Post-Conviction Relief is dismissed

with prejudice.”

In my view, the federal district court correctly decided that the state court

decision was a decision on the merits. See Harrington v. Richter, 562 U.S. 86, 99

(2011) (“When a federal claim has been presented to a state court and the state

court has denied relief, it may be presumed that the state court adjudicated the

claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.”) (citation omitted). Since the ineffective assistance of

trial counsel claim was not also presented to the state’s highest court, it is an

unexhausted claim, correctly dismissed on federal habeas review. See Rose v. Lundy, 455 U.S. 509, 515 (1982) (“[A]s a matter of comity, federal courts should

not consider a claim in a habeas corpus petition until after the state courts have had

an opportunity to act.”) (citing Ex parte Royall, 117 U.S. 241, 251 (1886)); see

also 28 U.S.C. § 2254(b)(1).

The majority presumes that the state post-conviction court dismissal was not

on the merits but instead based upon petitioner’s failure to support his habeas claim

with documentary evidence as required by Oregon’s post-conviction procedures.

But that assumes that claim had merit. The federal district court had the state trial

transcript at its disposal. Presumably, the state post-conviction court did too. At

trial, petitioner’s counsel argued the statute of limitations issue and lost. See

district court docket # 25-3, pp. 162-72. What kind of documentary evidence

would a court now expect to support his ineffective assistance of trial counsel

claim? An affidavit from another attorney to the effect that trial counsel should

have been more persuasive and a more persuasive attorney would have changed the

outcome on the legal question? No.

Viewed through the lens of the trial transcript, the state post-conviction

dismissal on the merits makes sense. The statute of limitations argument was

weak. Trial counsel was not deficient. Appellate counsel was not deficient for not

raising the weak claim on direct appeal. Post-conviction counsel was not deficient

2 for not attaching support for a meritless ineffective assistance of trial/appellate

counsel claim. The state court looked at the petitioner’s new claim of ineffective

assistance, judged that it lacked merit, and concluded that this was the reason no

supporting evidence was (or ever could) be provided. The federal district court

judge, herself a former state trial court and circuit court judge, correctly determined

that the state court ruled on the lack of merit. Since the claim is now procedurally

defaulted and petitioner can show neither “cause” because post-conviction counsel

was not deficient, nor “prejudice” because the original trial counsel was not

deficient, the narrow escape hatch of Martinez v. Ryan was closed. The federal

claim was dismissed as unexhausted. I would affirm.

3