                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 28 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BLAS RAMOS BRAVO,                                No. 15-35072

              Petitioner - Appellant,            D.C. No. 2:13-cv-01048-MA

 v.
                                                 MEMORANDUM*
JERI TAYLOR,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                      Argued and Submitted March 11, 2016
                                Portland, Oregon

Before: BERZON and WATFORD, Circuit Judges, and WALTER, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
      Petitioner-Appellant Blas Bravo (“Petitioner”), an Oregon state prisoner,

appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.

We affirm.

      Petitioner was convicted, after a jury trial, of second-degree sexual abuse, in

violation of Or. Rev. Stat. § 163.425, and tampering with a witness, in violation of

Or. Rev. Stat. § 162.285. The former conviction arose out of Petitioner’s sexual

relationship with an underage female. By a special verdict form, the jury also

found three aggravating factors, upon which the State ultimately sought upward

departure sentences. None of those factors were related to the victim’s age. The

sentencing court imposed the requested departure sentences of 60 months’

incarceration, as to each count, to be served consecutively to each other and to a

previously imposed 200-month sentence already being served by Petitioner.

      In his federal habeas petition, Petitioner alleged, inter alia, that the

sentencing court improperly used, or relied upon, the victim’s age as an

aggravating factor in imposing departure sentences and that defense counsel

rendered ineffective assistance of counsel by failing to object to the sentencing

court’s use thereof. The district court denied the petition but granted a certificate of

appealability on the issue now before us: whether defense counsel was ineffective




                                           2
in failing to object to the sentencing court’s reference to the victim’s age as an

enhancement factor at sentencing.

      Because the state post-conviction court decided Bravo’s ineffectiveness

claim on the merits, he can prevail on his habeas claim only if he can show that the

adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Regarding effective

assistance of counsel, under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), “[t]he pivotal question is whether the state court’s application of the

Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101

(2011). “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law

is different from an incorrect application of federal law.’” Id. (quoting Williams v.

Taylor, 529 U.S. 362, 410 (2000)). AEDPA “is a difficult to meet and highly

deferential standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563

U.S. 170, 181 (2011) (citations and internal quotation marks omitted).

      The state post-conviction court’s denial of relief after applying Strickland

was not unreasonable. Read in context, the sentencing court’s mention of the

victim’s age did not equate to impermissible reliance thereon as an aggravating


                                           3
factor. Counsel for both Petitioner and the State acknowledged, prior to the court’s

sentencing colloquy, the impact of the victim’s age on the facts of this case. In

response, the court also acknowledged the victim’s age which, in this case, is the

fact that caused Petitioner’s actions to be a criminal violation of Or. Rev. Stat. §

163.425. The court then explicitly adopted the findings of the jury, as to the three

aggravating, non-age-related factors. It is undisputed that, on the basis of those

factors alone, the sentencing court was legally authorized to depart from the

presumptive sentence. Under Blakely v. Washington, 542 U.S. 296 (2004), the

determinative question is: could the judge have imposed the sentence given, solely

on the basis of the facts admitted or found by a jury? See 542 U.S. at 303-04. Here,

the answer is yes. Therefore, counsel’s failure to object was not objectively

unreasonable, nor did it prejudice the proceedings. The post-conviction court’s

conclusion that trial counsel was not constitutionally ineffective is neither contrary

to, nor an unreasonable application of, clearly established federal law. 28 U.S.C. §

2254 (d)(1); see also Williams, supra, 529 U.S. at 386 (AEDPA plainly sought to

ensure deference to the determinations of state courts which neither conflict with

federal law nor apply federal law in an unreasonable way). We accordingly affirm

the district court’s denial of Bravo’s habeas petition.

      AFFIRMED.


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