                             NOT FOR PUBLICATION                          FILED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 Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). 28 U.S.C. § 2254. The District Court held that the Oregon

state court decision constituted an unreasonable application of Strickland 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 explaining the intent required for a criminal defendant to

be convicted of burglary under Oregon law.

      The District Court excused Decker’s procedural default on claims 1(F) and

1(C) under Martinez v. Ryan, 132 S. Ct. 1309 (2012) even though Decker failed to

raise these claims in the state habeas proceeding as required by Oregon law. Id. at

1316 (holding that a federal court may excuse a state habeas petitioner’s

procedural default if the petitioner can show cause for the failure to raise the claim

and prejudice resulting from such failure); State v. Robinson, 550 P.2d 758, 25 Or.

                                          2
App. 675 (1976) (per curiam) (holding that, under Oregon law, a claim of

ineffective assistance of counsel must be raised in the initial habeas proceeding).

The District Court also granted habeas relief on claims 1(F) and 1(C) upon de novo

review.

      We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the

District Court’s decisions de novo. Crace v. Herzog, 798 F.3d 840, 846 (9th Cir.

2015).

      With respect to claim 1(B), review of which is governed by AEDPA, we

reverse a state court’s decision if it “was contrary to, or involved an unreasonable

application of, clearly established [Supreme Court] law.” 28 U.S.C. § 2254(d)(1).

In this case, the relevant Supreme Court law is Strickland’s ineffective assistance

of counsel standard.

      Defense counsel provided an affidavit explaining his decision not to request

an assault instruction. In light of defense counsel’s affidavit, the Oregon state

habeas court denied claim 1(B), holding that defense counsel’s decision not to

request an assault instruction was strategic.

      The Oregon state court decision did not constitute an unreasonable

application of Strickland. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (trial

                                          3
court’s ruling must be “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement”). We thus reverse the District Court’s grant of habeas

relief on claim 1(B).

       Concerning claims 1(F) and 1(C): To be convicted of burglary under Oregon

law, a defendant must have intended to commit a crime at the time his permission

to remain in the victim’s dwelling is revoked. O.R.S. § 164.225 (A person

commits the crime of burglary in the first degree if the person “enters or remains

unlawfully in a [dwelling] with intent to commit a crime therein.”) (incorporating

by reference O.R.S. § 164.215, burglary in the second degree); In re J.N.S., 308

P.3d 1112, 1117–18, 258 Or. App. 310, 318–19 (2013) (“[T]he proper focus is on

the defendant’s intent at the initiation of the trespass. . . . If the trespass begins

when a defendant remains in a building after authorization has expired or has been

revoked, then we ask whether the defendant possessed the requisite criminal intent

at the time of the unlawful remaining.”). In other words, a defendant must have

the intent to commit a crime when he becomes a trespasser.

       The District Court made the following relevant findings of fact:
                     [Kirk] Jones[, the victim,] began making sexual


                                             4
             advances toward [Justin] Starrett [Jones’s and Decker’s
             mutual friend] and asked Starrett to spend the night. This
             prompted [Decker] to begin teasing Starrett about the
             overtures, making Starrett angry. According to [Decker],
             Jones told them, “Well, if you’re going to act like that,
             you should leave my apartment.”
                     At that point, Starrett unscrewed the shade of a
             nearby lamp, picked up the lamp base with both hands,
             said to Decker “this is what I think of faggots,” and
             proceeded to hit Jones in the head two or three times.
             [Decker] then declared it was “my turn” and proceeded to
             pick up a half-gallon glass liquor bottle and throw it at
             Jones’s head. The bottle bounced off the top of Jones’s
             head, and he began to bleed heavily.
                     Starrett then picked up a knife and began cutting
             Jones’s neck, telling him “this is what happens to faggots.”
             Believing that Starrett was going to kill Jones, [Decker]
             left the apartment and waited outside. When Starrett
             emerged from Jones’s apartment, he informed [Decker]
             that he had killed Jones.
             ....
                     The State’s medical examiner determined Jones
             died of blunt force trauma to the head. He opined that
             the knife wound to Jones’s neck was superficial and not
             fatal. He noted that the injury to the top of Jones’s head
             was consistent with having a bottle thrown at him, but
             that he did not expect that specific injury was fatal by
             itself. Thus, the jury could infer that Starrett’s blows
             with the lamp were the likely cause of death.

      The District Court found that Jones revoked Decker’s permission to remain

in the apartment when Jones said, “Well, if you’re going to act like that, you

should leave my apartment.” At trial, defense counsel did not discuss whether

Decker had the intent to assault Jones when Decker was told to leave. Defense

counsel did not argue that Decker lacked the intent necessary to be convicted of

                                          5
burglary—the predicate felony for his murder charge. Defense counsel instead

argued a statutory affirmative defense. See O.R.S. § 163.115(3). We find that

defense counsel’s decision to argue an affirmative defense rather than Decker’s

lack of intent did not constitute ineffective assistance of counsel. See Strickland,

466 U.S. at 689. We therefore reverse the District Court’s grant of habeas relief on

claim 1(F).

      As for claim 1(C), the Oregon trial court instructed the jury on the statutory

requirements of Oregon burglary law. The court’s instructions did not specifically

address the intent requirement—namely, that intent to commit a crime must exist at

the time the defendant’s presence in the victim’s home becomes unlawful. On

claim 1(C), the District Court held that trial counsel’s failure to request a jury

instruction on burglary’s intent requirement constituted ineffective assistance of

counsel. We defer our decision on claim 1(C), and remand to the District Court to

determine in the first instance whether the burglary instructions given by the

Oregon trial court to the jury were sufficient or insufficient concerning the intent

element of burglary under Oregon law.

     We REVERSE the District Court as to claims 1(B) and 1(F) and
REMAND claim 1(C) for the District Court to determine in the first instance
whether the burglary instructions given by the Oregon trial court to the jury


                                           6
were sufficient or insufficient concerning the intent element of burglary under
Oregon law.




                                       7
                                                                               FILED
Decker v. Persson, 15-35854
                                                                               SEP 08 2016
BEA, J., concurring in part and dissenting in part:                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      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 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).



1
       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 entered in the district court’s docket. Thus, the instructions
are part of the appellate record, and we may rely on them to decide this appeal. See
Ninth Circuit Rule 10-2 (“[T]he complete record on appeal [includes the] original
pleadings, exhibits and other papers filed with the district court.”); cf. Bolker v.
C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985) (explaining that “we have discretion to
address” issues not raised in the district court where “the pertinent record has been
fully developed”).
