                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID MICHAEL DECKER,                           No.    17-35152

                Petitioner-Appellant,           D.C. No.
                                                6:13-cv-01415-SI
 v.

ROB PERSSON,                                    MEMORANDUM*

                Respondent-Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                      Argued and Submitted March 20, 2018
                           San Francisco, California

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

       Petitioner David Decker (“Decker”) appeals from the district court’s denial

of habeas relief on his conviction and sentence for felony murder, which was based

on the predicate felony of burglary. We have jurisdiction under 18 U.S.C. § 1291

and § 2253. We review the district court’s denial of a petition for habeas relief de

novo, Blair v. Martel, 645 F.3d 1151, 1154 n.1 (9th Cir. 2011), and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      In 2006, Decker was convicted by a jury in Oregon state court of felony

murder of Kirk Jones (“Jones”). The felony murder charge was based on

allegations that Jones died while Petitioner and an accomplice, Justin Starrett

(“Starrett”), were committing a burglary and as a result of their conduct in

committing that crime. The district court initially granted habeas relief on three of

Decker’s habeas claims, but this court reversed as to two of those claims and

remanded the third. Decker v. Persson, 663 F. App’x 520, 521, 523 (9th Cir.

2016) (“Decker I”),1 cert. denied, 137 S. Ct. 1232 (2017).

      Decker’s remaining habeas claim—the sole claim at issue on this appeal—is

that his trial counsel rendered ineffective assistance of counsel (“IAC”) when he

failed to request an instruction on the intent element of the burglary charge that

would have clarified to the jury that the burglary charge required the state to prove

that Decker formed the intent to assault Jones at the time that Decker “unlawfully

remained” in Jones’s apartment; that is, when Jones told Decker and Starrett to

leave (thus withdrawing their licenses to be in his home) and they did not leave.

Because Decker failed to raise this claim in his state post-conviction proceeding,

he must establish that his post-conviction-relief counsel (“PCR counsel”) was

constitutionally defective in failing to raise it in that proceeding. Martinez v. Ryan,



      1
        The material facts of this case are recounted in this court’s previous
decision in this case. See Decker I, 663 F. App’x at 522–23.

                                          2                                      17-35152
566 U.S. 1, 17 (2012). Then, if that procedural default is excused, Decker must

prove both that (1) trial counsel rendered ineffective assistance and (2) Decker was

prejudiced thereby because there is a reasonable probability that Decker would

have been found not guilty of felony murder had counsel requested a different

instruction on intent. See Strickland v. Washington, 466 U.S. 668, 687, 694

(1984).

      Under Oregon law, a person is guilty of felony murder if, in the course of

committing a burglary in the first degree (a felony), a participant in the felony

causes the death of another person. Or. Rev. Stat. § 163.115(1)(b)(C). A person is

guilty of burglary in the first degree if he “violates ORS 164.215 and the building

is a dwelling.” Or. Rev. Stat. § 164.225(1). Section 164.215 provides that a

person is guilty of burglary under that section if he “enters or remains unlawfully

in a building with intent to commit a crime therein.” Or. Rev. Stat. § 164.215(1).

Remaining unlawfully means “failing to leave after authorization to be present

expires or is revoked.” In re JNS, 308 P.3d 1112, 1117 (Or. Ct. App. 2013). In

determining whether the intent element of section 164.215 is satisfied, the “proper

focus is on the defendant’s intent at the initiation of the trespass.” Id. at 1118.

      At trial, the Oregon court gave the following instruction regarding the

elements of the predicate felony of burglary:

      Oregon law provides that a person commits the crime of Burglary in
      the First Degree if the person enters or remains unlawfully in a dwelling

                                           3                                     17-35152
      with the intent to commit a crime therein. In this case, to establish the
      crime of Burglary in the First Degree, the state must prove beyond a
      reasonable doubt . . . [that] at the time of entering or remaining
      unlawfully, David Decker had the intent to commit the crime of assault
      [in Jones’s apartment].
As the district court found below, the jury instruction given at trial correctly

explained the law as to when Decker must have formed the intention to commit

assault to be guilty of first-degree burglary. The instruction given “provided

accurate, if somewhat general, guidance to the jury on what it was required to

find,” and was therefore adequate under Oregon law. State v. Pedersen, 255 P.3d

556, 564 (Or. Ct. App. 2011) (“It is not error for a trial court to refuse to give a

requested instruction if the instruction given by the court, although not in the form

requested, adequately covers the subject of the requested instruction.”).

      Decker argues that trial counsel nonetheless rendered IAC by failing to

request an instruction more specifically tailored to a defense that Decker did not

form the requisite intent “at the time of entering or remaining unlawfully.”2 But

this argument cannot overcome the deference applied to the performance of both


      2
         Decker’s Opening Brief also argues that trial counsel was ineffective
because he failed to object to the prosecution’s characterizations of the intent
element of the burglary charge, but no separate claim based on failures to object is
before us here. Decker I, 663 F. App’x at 522 (“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.”); id. at 523
(remanding for 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”).

                                           4                                       17-35152
PCR and trial counsel. This court held in Decker I that Decker’s trial counsel’s

“decision to argue an affirmative defense[3] rather than Decker’s lack of intent [to

assault Jones at the time he was told to leave] did not constitute ineffective

assistance of counsel.” Decker I, 663 Fed. Appx. at 523. That was a proper

application of Strickland’s mandate for reviewing courts to “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. Indeed, all of the cases

Decker cites to show the viability of the foregone defense strategy were decided

after both his trial and his initial state post-conviction proceeding. State v. Werner,

383 P.3d 875 (Or. Ct. App. 2016); State v. Gordon, 383 P.3d 942 (Or. Ct. App.

2016); State v. Berndt, 386 P.3d 196 (Or. Ct. App. 2016); In re JNS, 308 P.3d 1112

(Or. Ct. App. 2013). Therefore, trial counsel’s failure to seek a more detailed

instruction on the timing of Decker’s intent to assault Jones—because trial counsel

reasonably pursued a different defense—was “within the wide range of reasonable


      3
       Trial counsel argued a statutory affirmative defense based on Or. Rev. Stat.
§ 163.115(3), which provides:
      It is an affirmative defense to a charge of [felony murder] that the
      defendant: (a) Was not the only participant in the underlying crime; (b)
      Did not commit the homicidal act or in any way solicit, request,
      command, importune, cause or aid in the commission thereof; (c) Was
      not armed with a dangerous or deadly weapon; (d) Had no reasonable
      ground to believe that any other participant was armed with a dangerous
      or deadly weapon; and (e) Had no reasonable ground to believe that any
      other participant intended to engage in conduct likely to result in death.

                                          5                                      17-35152
professional assistance.” Strickland, 466 U.S. at 689 (“A fair assessment of

attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.”

(emphasis added)).

      Moreover, even if we were inclined to depart from the law of the case to

hold that trial counsel’s failure to raise another defense was unreasonable (and thus

that failure to request a jury instruction in service of that other defense was

unreasonable as well), we would not be able to say here that PCR counsel’s failure

to raise an IAC claim on that basis was itself unreasonable. See Decker I, 663 Fed.

Appx. at 523 (holding that trial counsel in this case did not render ineffective

assistance in arguing the statutory defense rather than a defense based on the intent

element of the burglary charge); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir.

2012) (“[Post-conviction] [c]ounsel is not necessarily ineffective for failing to raise

even a nonfrivolous claim.”). Decker failed to address his procedural default in his

Opening Brief and then failed to file a Reply Brief after Respondent raised it in his

Answering Brief. Decker has therefore failed to carry his burden to establish

grounds for habeas relief.

      AFFIRMED.




                                           6                                      17-35152
                                                                       FILED
Decker v. Persson, No. 17-35152                                         AUG 16 2018

MURGUIA, Circuit Judge, dissenting:                                 MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS


      By failing to request a clarifying instruction on the intent element of

burglary, David Decker’s trial counsel, D. Olcott Thompson, committed an error

that rendered his performance at trial constitutionally deficient. This error was fatal

to Decker’s defense: it permitted the jury to reach a guilty verdict that was

unsupported by any evidence at trial, and it resulted in the imposition of a

mandatory sentence of life in prison. Because Decker has proven his ineffective

assistance of counsel claim, I respectfully dissent.

      The question presented by this appeal is whether Thompson deprived

Decker of the effective assistance of counsel by failing to request an additional jury

instruction on the intent element of burglary, which was the predicate offense for

Decker’s felony murder charge. In order to prove the ineffective assistance of trial

counsel under the Sixth Amendment, Decker must show that (1) Thompson’s

performance at trial was deficient, which requires showing that Thompson “made

errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,” and (2) Decker was prejudiced by the

deficient performance, meaning he was deprived of “a trial whose result is

reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the


                                          1
test are met here.

      First, by permitting the jury to reach a verdict based on a misunderstanding

of Oregon law, Thompson’s performance was deficient. Under Oregon law, “a

person commits the crime of burglary in the second degree if the person enters or

remains unlawfully in a building with intent to commit a crime therein.” Or. Rev.

Stat. § 164.215(1). Critical here, the intent to commit a crime must be formed

contemporaneously with the decision to enter or remain unlawfully in the building.

In re J.N.S., 308 P.3d 1112, 1117–18 (Or. Ct. App. 2013). In fact, intent to commit

a subsequent crime must be the purpose for the defendant’s decision to remain. See

id.

      Where, as here, “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.” Id. at 1118 (emphasis in original). As the majority correctly notes,

Decker’s trespass began when Kirk Jones revoked his permission for Decker to be

in the apartment by asking Decker to leave. Following an exchange between Jones

and Justin Starrett, Jones stated: “Well, if you’re going to act like that, you should

leave my apartment.” Because this was the moment that Jones revoked his license

for Decker to remain in the apartment, it was at this moment, and not after, that


                                           2
Decker must have formed the intent to commit assault on Jones for the purposes of

proving burglary. See id.

      As Magistrate Judge Janice Stewart correctly found in her original Findings

and Recommendation, there was no evidence presented at trial that Decker

intended to commit assault when his trespass began. This case was unusual, in that

Decker had been invited into Jones’s apartment as a guest. When Jones asked

Starrett and Decker to leave, Decker had been in the apartment with Jones and

Starrett for over five hours, drinking and playing games. During all of that time

there was no indication of violence. Jones asked Decker and Starrett to leave

because Jones was in a disagreement with Starrett, not with Decker. Decker’s

assault for the purposes of proving burglary was the single act of throwing a bottle

of vodka at Jones. It was not planned, and it did not occur until after Starrett had

initiated the violence by hitting Jones over the head with a lamp. Even assuming

Decker had an inkling of the events to come at the time his trespass began, this is

insufficient under Oregon law, which requires that the defendant act with “a

conscious objective to cause the result or to engage in the conduct so described.”

State v. Cook, 335 P.3d 846, 849 (Or. Ct. App. 2014) (quoting Or. Rev. Stat.

§ 161.085(7)). On these facts, had Thompson made intent the centerpiece of his

defense, the prosecution’s case would have failed.


                                           3
      Perhaps realizing that there was no evidence to support a burglary charge,

the prosecution advanced a theory that Decker’s trespass began at a different

time—the time of the assault itself. Specifically, the prosecution repeatedly told the

jury that Jones “impliedly” revoked his permission for Decker to remain in the

apartment when Decker committed the assault on Jones. This theory—that Jones

impliedly revoked permission for Decker to remain when the assault began—

benefitted the prosecution by eliminating the burden of proof on the intent element

of burglary. Specifically, the contemporaneity requirement would always be

satisfied: Decker’s intent to commit the assault on Jones would necessarily be

contemporaneous with the unlawful remaining because both occurred at the time of

the assault itself. In other words, the prosecution’s burden of proving the elements

of intent and unlawful remaining was met by the very fact of the felony itself.

      This theory of burglary has been repeatedly and strongly rejected by Oregon

courts. See State v. Berndt, 386 P.3d 196, 200 (Or. Ct. App. 2016) (reversing

burglary conviction where “the only conduct on which the state relied at trial to

assert that defendant had acted outside the scope of his license, and therefore

unlawfully remained on the premises, was his commission of a crime.”); State v.

Werner, 383 P.3d 875, 881 (Or. Ct. App. 2016) (“Because it is inconsistent with

the legislature’s definition of burglary and because it would greatly expand the


                                          4
crime of burglary despite the absence of any indication that the legislature intended

such an expansion, we reject the state’s argument that commission of a crime in a

building, in and of itself, converts a lawful entry into an unlawful remaining.”); In

re J.N.S., 308 P.3d at 1118–19 (rejecting the state’s theory “that a person may

commit second-degree burglary by entering a premises and then forming the intent

to commit a crime therein.”).1 The idea that intent can be proved by the very fact

of the subsequent felony misconstrues the purpose of the burglary statute, which is

to penalize the act of entering a building with the intent to commit a felony. State

v. Chatelain, 220 P.3d 41, 45 (Or. 2009) (en banc). In fact, the contemporaneity of

the unlawful remaining and the intent to commit a felony is critical because it is

what distinguishes the crime of burglary both from a criminal trespass and from the

subsequently committed felony. See Berndt, 386 P.3d at 199 (“[T]he legislature

intended burglary to be separate from (and not dependent upon) the subsequent




      1
         The majority dismisses these cases as irrelevant because they were
decided after Decker’s trial. But these cases did not change the law on burglary in
Oregon. Rather, they simply stated what should be obvious: if intent could be
proved by the very fact of the subsequent felony, then every single felony
committed inside a dwelling would automatically give rise to a burglary charge. As
noted herein, this is not the case. See Chatelain, 220 P.3d at 45 (discussing 4
William Blackstone, Commentaries on the Laws of England 227 (1769) (“[I]t is
clear, that [the] breaking and entry must be with a felonious intent, otherwise it is
only a trespass.”)).

                                          5
commission of the intended crime . . . .” (quoting Werner, 383 P.3d at 880–81));

Chatelain, 220 P.3d at 45 (“Since the time of Blackstone, the defendant’s intent to

commit a crime in the building has been the characteristic distinguishing burglary

from mere trespass.”). Erasing this distinction is an error of consequence: it

eliminates the state’s burden of proof on the intent element of burglary, which is

“the essence of the offense.” In re J.N.S., 308 P.3d at 1119 (citation omitted).

Indeed, under the prosecution’s theory, any felony committed inside a dwelling

would constitute burglary, which of course makes no sense. Yet, that is what

occurred here.

      Decker’s trial counsel did not argue intent and never objected to the

prosecution’s theory of the case.2 Nor did he request an instruction clarifying that

intent must have been formed at the time Jones asked Decker to leave, and not

sometime thereafter. See id. at 1117–18. Armed with a different instruction, the

jury might have been forced to arrive at the same conclusion reached by Magistrate




      2
         In his federal habeas petition, Decker also raised a claim that Thompson
was ineffective for failing to argue to the jury that Decker lacked the intent
required for a criminal defendant to be convicted of burglary under Oregon law.
See Decker v. Persson, 663 F. App’x 520, 521 (9th Cir. 2016) (“Decker I”). The
prior Ninth Circuit panel in this case reversed the district court’s order granting
that claim on the merits. Id. at 523. I was not a member of the prior panel, and I do
not agree with its disposition.

                                          6
Judge Stewart—namely, that at the time Jones asked Decker to leave there was no

evidence presented at trial that Decker had formed the intent to commit assault on

Jones. Instead, by failing to correct the prosecution’s misstatement of law,

Thompson permitted the jury to reach a verdict on the assumption that Decker’s

unlawful remaining began at the very moment he assaulted Jones, which required

no evidence of intent at all.

      The trial court’s instruction on the intent element of burglary would be

sufficient if there was only one moment in time when Decker might have formed

the intent to commit assault. But the jury was incorrectly allowed to believe that

there were two times in which Decker might have formed the intent to commit the

assault on Jones—either at the time Jones asked Decker to leave, or at the time of

the assault itself. This legal error was not corrected in the jury instructions, even

though this Oregon burglary offense required intent to have been formed at the

time Jones verbally rescinded his permission for Decker to remain and not later.

This error was also compounded by the prosecution’s repeated misstatements of

what the law required during closing statements.

      In the absence of this critical information, the jury, not surprisingly, found

the elements of burglary had been met and entered a guilty verdict for the felony

murder charge. The trial judge subsequently imposed the mandatory life sentence.


                                           7
Considering all these circumstances, I conclude that Thompson’s failure to rectify

the prosecution’s misstatements of law constituted an “error [] so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and that Decker was prejudiced by this error. Strickland, 466 U.S. at

687. Therefore, Decker has proven his ineffective assistance of counsel claim with

regard to trial counsel. 3



       3
          Decker would not be able to show prejudice if, even in spite of
Thompson’s deficient performance, the timing of events could give rise to a
reasonable inference that Decker’s intent was formed at the time Jones asked him
to leave the apartment. See Cook, 335 P.3d at 848 (“The state may rely on
circumstantial evidence and reasonable inferences flowing from that evidence to
establish any element of a charged crime, including intent.” (internal quotation
marks and citation omitted)). Here, several facts undermine the conclusion that
Decker remained unlawfully for the purpose of assaulting Jones at the time Jones
asked Decker and Starrett to leave. First, as discussed above, Decker had been in
the apartment for at least 5 hours before Starrett assaulted Jones. For those five
hours and even up to the time consent was revoked, there was no suggestion of
violence on the part of Decker or animosity between Decker and Jones. Earlier in
the evening Decker called Jones a “faggot,” “fag,” and a “punk.” However, this
was sometime before Michelle Wolf left the apartment, and her testimony was that
Decker and Starrett were joking around. When Jones did ultimately ask Decker and
Starrett to leave, there was an ongoing dispute between Starrett and Jones, who
were lovers—not between Jones and Decker, who had no prior relationship of
consequence. The reasonable inference is that the impetus for Starrett’s assault was
Jones’s sexual advances, which were directed at Starrett, not Decker.
      Second, when Jones revoked his consent for Decker and Starrett to stay in
his apartment, Decker simply remained sitting on the couch as he had been doing
for some time. In fact, Decker simply sat and watched as Starrett unscrewed the
lamp, while Jones had his back turned, and then hit Jones over the head. This does
not suggest Decker had “a conscious objective to cause the result or to engage in

                                          8
      In reaching its conclusion that Thompson’s performance was not deficient,

the majority does not address all of these facts, but rather cites to the deference that

we owe to the performance of trial counsel. To this point, I respectfully disagree

with the conclusion reached by the prior panel that Thompson’s decision to argue

an affirmative defense rather than Decker’s lack of intent was a legitimate trial

strategy. Decker I, 663 F. App’x at 523 (“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.”). This conclusion was unsupported by

the record. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (a

court may depart from the law of the case where the first decision was clearly

erroneous). Thompson’s statutory affirmative defense, which requires proof of

each of five elements, several of which were lacking here, was flimsy at best. See



the conduct so described.” Id. at 849 (quoting Or. Rev. Stat. § 161.085(7)). It was
not until after Starrett used the lamp to assault Jones that Decker demonstrated any
intent to assault Jones. In fact, Decker’s trial counsel elicited testimony from
several witnesses that Decker did not know that Starrett was going to assault Jones
or plan the assault in any way.
       On these facts, the proximity in time does not give rise to a reasonable
inference of intent at the time permission to remain was revoked. Id. at 848
(“There is a difference between inferences that may be drawn from circumstantial
evidence and mere speculation. Reasonable inferences are permissible; speculation
and guesswork are not.” (internal quotation marks and citations omitted)). Rather,
the evidence suggests that Decker formed the intent to commit assault after Starrett
assaulted Jones.

                                           9
Or. Rev. Stat. § 163.115(3).

      More importantly, however, even assuming that the statutory affirmative

defense was valid, Thompson is not immunized from constitutional challenge

because he had any strategy—his decision to abandon an alternative defense that

had a high probability of success must have been strategic as well. See United

States v. Alferahin, 433 F.3d 1148, 1161 (9th Cir. 2006) (Alferahin’s counsel did

not intend strategically to forego the materiality instruction, but rather “had no idea

that such an instruction was available to his client as a matter of right.”); United

States v. Span, 75 F.3d 1383 1387–88 (9th Cir. 1996) (defense counsel’s

performance was deficient in failing to object to an erroneous instruction on an

excessive force defense, even where counsel had three other valid defenses that

were asserted at trial). Thompson indicated no such strategy with regard to an

intent defense. Rather, Thompson’s affidavit suggests that Thompson failed to

even identify the prosecution’s error, much less comprehend its gravity. Cf.

Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985) (“Apparently defense

counsel, with adequate knowledge of the law and the evidence, abandoned pursuit

of an instruction on voluntary manslaughter in accord with the strategy that he

believed would procure the most advantageous defense for Butcher. It can be

inferred that in taking this course of action counsel believed that such a request


                                          10
would have been fruitless or even harmful to his client.” (emphasis added)). For

these reasons, again, I must respectfully depart from the majority’s conclusion that

Thompson’s performance was constitutionally sound.

      Finally, in order to win on the merits of his ineffective assistance of counsel

claim, Decker must show that his post-conviction relief counsel was ineffective in

failing to raise the claim that trial counsel was ineffective. I agree with the district

court’s original conclusion in this case that under Martinez v. Ryan, 566 U.S. 1

(2012), Decker has shown that his claim is substantial, and that he has

demonstrated cause and prejudice to overcome procedural default on this claim.

See Atwood v. Ryan, 870 F.3d 1033, 1059–60 (9th Cir. 2017).

      There is no dispute that Decker failed to raise his IAC claim (“Claim 1(C)”)

before the state courts, which would now find Decker’s claim procedurally barred.

See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). Procedural default may be

excused, however, if Decker can show cause and prejudice. See Coleman v.

Thompson, 501 U.S. 722, 746–47 (1991). In Martinez, the Supreme Court held that

“[i]nadequate assistance of counsel at initial-review collateral proceedings may

establish cause for a prisoner’s procedural default of a claim of ineffective

assistance at trial.” 566 U.S. at 9.

      “[T]o establish ‘cause’ to overcome procedural default under Martinez, a


                                           11
petitioner must show: (1) the underlying ineffective assistance of trial counsel

claim is ‘substantial’; (2) the petitioner was not represented or had ineffective

counsel during the [state post-conviction relief (“PCR”)] proceeding; (3) the state

PCR proceeding was the initial review proceeding; and (4) state law required (or

forced as a practical matter) the petitioner to bring the claim in the initial review

collateral proceeding.” Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en

banc) (citing Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)). Here, the third and

fourth elements are met. See Or. Rev. Stat. § 138.550(3) (“All grounds for relief

claimed by petitioner in a petition [for post-conviction relief] must be asserted in

the original or amended petition, and any grounds not so asserted are deemed

waived unless the court on hearing a subsequent petition finds grounds for relief

asserted therein which could not reasonably have been raised in the original or

amended petition.”). Therefore, in order to overcome the default, Decker must

show that his PCR counsel was ineffective under the standards of Strickland, and

that his underlying claim of ineffective assistance of trial counsel is “substantial.”

Martinez, 566 U.S. at 14.

      Regarding the first requirement, a claim is “substantial” if it has “some

merit.” Id. For the reasons discussed above, Decker’s ineffective assistance of

counsel claim is meritorious, and the first requirement to show cause under


                                          12
Martinez is satisfied. See id.

      Regarding the second requirement, neither the magistrate judge nor the

district court made any factual findings on the question of whether Decker’s post-

conviction relief counsel at the initial collateral review proceeding was deficient in

failing to raise the present IAC claim. Ordinarily a remand would be appropriate to

determine this “highly fact- and record-intensive analysis.” Woods v. Sinclair, 764

F.3d 1109, 1138 (9th Cir. 2014) (quoting Detrich v. Ryan, 740 F.3d 1237, 1262

(9th Cir. 2013) (Watford, J., concurring)). However, I note that Respondent

Persson did not object to the Magistrate Judge’s failure to explicitly address the

performance of PCR counsel, as he was required to do. Rather, Persson’s objection

focused wholly on the Magistrate Judge’s construction of Oregon law. Therefore,

any challenge on this ground was waived long ago, and at this stage in these

proceedings remand is neither appropriate nor necessary on the procedural default

issue. See Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (finding the

application of waiver doctrine was necessary to prevent inequity).

      In sum, I cannot agree with the majority’s conclusion that the given

instruction was “general[] guidance” that adequately covered the subject of the

requested instruction. On the particular facts of this case, it was, rather, an

incomplete instruction. See State v. Bistrika, 322 P.3d 583, 595 (Or. Ct. App. 2014)


                                           13
(“Instructional error exists where the instructions give the jury ‘an incomplete and

thus inaccurate legal rule’ to apply to the facts . . . .” (quoting Wallach v. Allstate

Ins. Co., 180 P.3d 19 (Or. 2008) (en banc)). The court’s given instruction failed to

convey to the jury a critical piece of information, which, if included, more likely

than not would have led the jury to reach a verdict of “not guilty.” See Wallach,

180 P.3d at 26 (court’s instruction constituted reversible error where instruction

was “too broad,” in that “[i]t permitted the jury to find the defendant . . . guilty for

conduct that did not constitute the charged crime, as well as for conduct that did”

(discussing State v. Pine, 82 P.3d 130 (2003)); cf. State v. Pedersen, 255 P.3d 556,

564 (Or. Ct. App. 2011) (“We cannot say the trial court’s instruction created an

erroneous impression of the law or that defendant was entitled to his requested

instruction.”). Moreover, no other instruction given by the judge clarified this

grievous deficiency. See State v. Woodman, 138 P.3d 1, 8 (Or. 2006) (en banc)

(“[W]e read the instructions as a whole to determine whether they state the law

accurately.” (citations omitted)). On the facts of this case, the instruction was

erroneous and Thompson’s failure to identify or rectify the error violated Decker’s

rights under the Sixth Amendment.

      Because Decker has succeeded on his ineffective assistance of counsel

claim, I would remand with instructions to the district court to grant Decker’s


                                           14
petition for writ of habeas corpus. Accordingly, I dissent.




                                         15
