                                                                            FILED
                            NOT FOR PUBLICATION
                                                                              JUL 20 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSHUA MARSING,                                   No.    14-36098

              Petitioner-Appellant,               D.C. No. 1:07-cv-00705-CL

 v.
                                                  MEMORANDUM*
JEFF PREMO, Superintendent,

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                              Submitted July 8, 2016**
                                 Portland, Oregon

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

      Joshua Marsing, an Oregon state court prisoner, appeals from the district

court’s denial of his petition for a writ of habeas corpus. As the parties are familiar




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      The district court correctly held that Marsing’s procedural default of the

ineffective assistance of trial counsel claim was not excused under Martinez v.

Ryan, 132 S. Ct. 1309 (2012). To show excusable cause for a procedurally

defaulted ineffective assistance of counsel claim, a petitioner must establish,

among other things, that (1) the claim is substantial and (2) that his post-conviction

relief (PCR) counsel was ineffective for not bringing the claim in state court. Id. at

1320. “To establish ineffective assistance of counsel, [Marsing] must demonstrate

(1) that counsel was ineffective and (2) that counsel’s deficient performance

prejudiced him.” Smith v. Ryan, -- F.3d --, No. 14-99008, 2016 WL 3034147, at

*21 (9th Cir. May 26, 2016) (citing Strickland v. Washington, 466 U.S. 668, 692

(1984)).

      1.     Marsing’s ineffective assistance of trial counsel claim is not

substantial. According to Marsing, trial counsel’s “failure to object to the

admission of TTB’s written log on Fourteenth Amendment grounds fell below an

objective standard of reasonable representation.” We disagree. The introduction

of a coerced confession violates the Constitution only if the confession is the

product of government coercion. Colorado v. Connelly, 479 U.S. 157 (1986).


                                           2
Here, Marsing has offered virtually no evidence of government coercion. It is

irrelevant that TTB might have felt coercive pressure from her parents to confess

to sexual activity with Marsing or that TTB’s parents kept her confined at the

residential facility. There was no evidence of collusion between the detective and

TTB’s parents in eliciting TTB’s confession to sexual relations with Marsing. On

the contrary, TTB testified that the confession just “slipped out” while she was

talking to staff at the residential facility. Thus, trial counsel did not act outside the

wide range of reasonable professional assistance in failing to object to the

introduction of the log on due process grounds.

      Yet, even assuming that counsel should have raised such an objection,

Marsing does not show that he was prejudiced by his trial counsel’s allegedly

deficient performance. Marsing fails to demonstrate that there is a reasonable

probability that he would not have been convicted if his trial counsel had

successfully objected to the log being introduced into evidence. See Strickland,

466 U.S. at 694.

      First, Marsing’s trial counsel undermined the evidentiary value of the written

log during trial by eliciting testimony that TTB was led to believe that she could

not leave the residential facility if she did not admit to sexual contact with

Marsing, and that it was possible that the statements in the log were not completely


                                            3
accurate. Marsing’s counsel also argued during closing argument that the log was

not trustworthy. Therefore, it was not reasonably likely that excluding the log

would have made a difference. Second, the statements in the log were duplicative

of TTB’s testimony. TTB testified about her sexual activity with Marsing at

length, aside from her reading of the log. Lastly, there was overwhelming

evidence that established Marsing’s guilt independently of the log. For example,

the state introduced sexually explicit letters that Marsing exchanged with TTB, and

one of TTB’s friends testified that she saw Marsing engaging in sexual contact

with TTB. Accordingly, Marsing’s ineffective assistance of trial counsel claim

was not substantial.

       2.     Marsing’s PCR counsel was not ineffective by failing to bring the

ineffective assistance of trial counsel claim in state court. As the government

points out, “[a]lthough post-conviction counsel initially alleged that trial counsel

was ineffective for failing to object to admission of the victim’s log, he later

withdrew that claim.” Therefore, there “is a strong presumption that counsel’s

attention to certain issues to the exclusion of others reflects trial tactics rather than

sheer neglect.” Harrington v. Ritcher, 562 U.S. 86, 109 (2011) (internal quotation

marks and citation omitted). PCR counsel’s decision to withdraw the ineffective




                                             4
assistance of trial counsel claim was clearly tactical and reasonable considering its

weaknesses.

      AFFIRMED.




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