                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 11 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBERT ADAM NEUMAN,                             No.    16-35682

                Petitioner-Appellant,           D.C. No. 2:14-cv-00828-SB

 v.
                                                MEMORANDUM*
MARK NOOTH,

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, Chief Judge, Presiding

                          Submitted November 8, 2017**
                                Portland, Oregon

Before: FERNANDEZ, W. FLETCHER, and MELLOY,*** Circuit Judges.

      State prisoner Robert Neuman pleads an ineffective-assistance-of-counsel

claim in his habeas petition. Neuman asserts trial counsel failed to vigorously



      *
             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).
      ***
            The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
investigate and argue against the use of his prior military convictions for criminal-

history purposes under Oregon’s sentencing guidelines. The state post-conviction-

relief (“PCR”) court determined as a matter of Oregon law that Neuman’s federal

offense of conviction, 18 U.S.C. § 2252A(a)(5)(B), was comparable to a qualifying

Oregon felony, Or. Rev. Stat. § 163.684(1)(a)(A), and could be counted. As such,

the state PCR court concluded that Neuman failed to show prejudice as required

under Strickland v. Washington, 466 U.S. 668, 691–92 (1984). This

determination, while necessarily considering the elements of the federal offense for

comparison purposes, was a state-law determination. See Christian v. Rhode, 41

F.3d 461, 469 (9th Cir. 1994) (holding that a state-court determination that a prior

federal offense counted for state-sentencing-guidelines purposes comprises an

unreviewable state-law determination). “[A] federal court may not overturn a

conviction simply because the state court misinterprets state law.” Medley v.

Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc).

      Moreover, even if we could characterize the error Neuman alleges as

presenting a question of federal law, we would find relief unavailable. Neuman

alleges the state court failed to appreciate that the elements of the identified federal

and state offenses differ. Namely, the federal offense criminalizes the possession

of child pornography, whereas the state offense includes as an additional element

the act of duplication. See State v. Betnar, 166 P.3d 554, 560 (Or. Ct. App. 2007)


                                           2
(addressing the duplication element). Pursuant to Betnar, however, an Oregon jury

may infer an act of duplication when the images of child pornography reside on

certain forms of electronic media. Id. In the present case, Neuman possessed

multiple images on such media. Therefore, contrary to Neuman’s arguments, the

state PCR court did not necessarily overlook the differences between the state and

federal offenses or misconstrue the elements of the federal offense.

      Finally, even if Betnar did not conclusively demonstrate the absence of

prejudice, it raises a sufficiently debatable question as to the application of

Strickland to shield the state PCR court’s decision from federal habeas relief. See

Harrington v. Richter, 562 U.S. 86, 101 (2011) (federal habeas relief is unavailable

where “fairminded jurists could disagree on the correctness of the state court’s

decision” (internal quotation marks omitted)).

      AFFIRMED




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