Brown

MEMORANDUM *

Alvin Brown (“Brown”) appeals the district court’s denial of habeas relief, raising three claims of ineffective assistance of counsel (“IAC”). We affirm.

Regarding Brown’s first IAC claim, based on his attorney’s failure to request a jury instruction that evidence of each incident was not cross-admissible, an attorney cannot be found ineffective for failing to make a request when no trial error has occurred. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir.2005). Here, evidence of Brown’s behavior during each incident was cross-admissible for valid non-propensity purposes because the trial court had properly joined two incidents with intertwining evidence and factual similarities. See State v. Miller, 327 Or. 622, 632 , 969 P.2d 1006 (1998); Or.Rev.Stat. §§ 40.170(3), 132.560(1).

Brown never presented his second IAC claim — based on his attorney’s failure to object to a proposed jury instruction— at the state level, having withdrawn it from the post-conviction court’s consideration. As he can no longer pursue state-court remedies, the claim is procedurally defaulted. Further, there is no constitutional right to an attorney in state post-conviction proceedings.…