                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 30 2015

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

JOHN MICHAEL BRAY,                               No. 14-35011

              Petitioner - Appellant,            D.C. No. 6:03-cv-01762-TC

  v.
                                                 MEMORANDUM*
JEFF PREMO, Superintendent,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                       Argued and Submitted March 6, 2015
                                Portland Oregon

Before: PAEZ and IKUTA, Circuit Judges and SELNA,** District Judge.

       John Michael Bray appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging his conviction for two counts of aggravated murder,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
two counts of murder, and three counts of kidnapping. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253, and we affirm.

      1. Bray argues that the state postconviction court’s denial of his claim that

trial counsel were ineffective in investigating a testifying codefendant’s plea

agreement was unreasonable. See § 2254(d); Strickland v. Washington, 466 U.S.

668, 687–96 (1984); Davis v. Alaska, 415 U.S. 308, 318 (1974). This argument is

without merit. Trial counsel used a transcript from a September 3, 1992 meeting

between the prosecution and the codefendant in cross-examining the codefendant

about his plea agreement and his understanding of it. The state postconviction

court’s conclusion that trial counsel did not perform deficiently in not also

obtaining a letter from the codefendant’s attorney about his plea agreement did not

involve an unreasonable application of clearly established Supreme Court law. See

§ 2254(d)(1).

      2. Bray argues that the state postconviction court unreasonably rejected his

claim that trial counsel were ineffective during the prosecutor’s questioning of

Bray and his codefendant about Bray’s alleged sexual misconduct with others and

with the codefendant. We disagree. During Bray’s testimony about his alleged

misconduct with others, trial counsel recognized the potentially prejudicial effect

of the prosecutor’s questions, decided not to object to avoid drawing the jury’s


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attention to the questions, and successfully argued against the prosecutor referring

to impermissible inferences during closing argument. The state postconviction

court was not unreasonable in determining that trial counsel made a reasonable

strategic decision. See Harrington v. Richter, 562 U.S. 86, 105 (2011); Strickland,

466 U.S. at 690–91. During the codefendant’s testimony about Bray’s alleged

misconduct with others and with the codefendant, trial counsel did not object on

the basis of Oregon Rules of Evidence 404(3) or 403. Yet trial counsel

successfully raised a hearsay objection to prevent the codefendant from testifying

about others’ allegations about Bray. And although trial counsel objected

unsuccessfully and only on relevancy grounds when the codefendant testified

about his own sexual contacts with Bray, this testimony related to evidence that

Bray had exercised control over the codefendant at the time of the murder. The

state postconviction court therefore was not unreasonable in determining that trial

counsel reasonably concluded that any further objections would be unsuccessful.

On this record, Bray fails to show that the state postconviction court’s conclusion

on deficiency was unreasonable under clearly established Supreme Court law. See

§ 2254(d); Strickland, 466 U.S. at 690–91.

      3. Bray argues that the state postconviction court unreasonably denied his

claim that trial counsel were ineffective in presenting Bray’s military records


                                          3
during the penalty phase of the trial, but not the guilt phase. Bray’s military

records demonstrate his prior military service and honors. Yet, during the guilt

phase, his codefendant testified about how Bray had cited his military background

to intimidate the codefendant. Bray fails to show how the records could have

rebutted that testimony or demonstrated Bray’s psychological state at the time of

the murder. Thus, Bray fails to show that the state postconviction court’s decision

on Strickland’s prejudice prong involved an unreasonable application of clearly

established Supreme Court law. See § 2254(d); Strickland, 466 U.S. at 691–96.

      4. Bray argues that the state postconviction court was unreasonable in

denying his claim that trial counsel were ineffective in failing to investigate penalty

phase fingerprint and other evidence linking Bray to a location containing large

amounts of illegal substances. Yet trial counsel consulted with two experts during

the penalty phase about whether Bray could rebut the relevant evidence. And trial

counsel cross-examined a witness to elicit statements indicating that two men other

than Bray had been associated with the location. Given trial counsel’s actions and

the evidence in the record, Bray fails to show that the state postconviction court

unreasonably determined that Bray failed to show any prejudice. See § 2254(d);

Strickland, 466 U.S. at 691–96.




                                          4
      5.a. Bray also argues that he suffered prejudice from trial counsel’s

inadequate investigation of the fingerprint evidence before Bray rejected a pretrial

plea offer. See Lafler v. Cooper, 132 S. Ct. 1376, 1384–85 (2012). The State has

argued that this claim is a “new” claim on federal habeas review because Bray did

not refer to the plea offer in his ineffective assistance of trial counsel claims in his

initial state postconviction petition. See Dickens v. Ryan, 740 F.3d 1302, 1317–19

(9th Cir. 2014). As the record reflects, Bray raised this claim for the first time in

his postconviction appeal to the state court of appeals.

      5.b. The district court agreed with the State and rejected this claim. It first

assumed without deciding that Bray’s argument was procedurally barred under

state law and that Bray could overcome the bar under Martinez v. Ryan, 132 S. Ct.

1309 (2012). The court then addressed the merits of Bray’s underlying claim that

trial counsel were ineffective in plea negotiations with the prosecutors. The court

concluded that on this record Bray cannot demonstrate prejudice resulting from

trial counsel’s performance relating to the pretrial plea offer. As noted by the

district court, Bray testified at his state postconviction deposition that had he

known of the fingerprint evidence before trial he would have “seriously considered

[the plea offer] a lot more.” He also stated, however, that “the only reason [he]

wouldn’t take the deal [wa]s because [the prosecutor] wanted [him] to take the deal


                                            5
for murder and [he] wouldn’t agree to a murder charge.” Other than these general

statements, Bray failed to provide information about the timing or substance of

plea negotiations. Thus, we conclude that Bray cannot meet the first requirement

of the Lafler analysis, see Lafler, 132 S. Ct. at 1384–85, and affirm the district

court’s denial of this claim.1

      6. In addition to the certified issues, Bray seeks certificates of appealability

regarding two due process claims. See 9th Cir. R. 22-1(e). Because we conclude

that Bray has failed to make a “substantial showing of the denial of a constitutional

right,” we decline to expand the certificate of appealability. See § 2253(c)(2). Cf.

Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005).

      AFFIRMED.




      1
       We also reject Bray’s claim of prejudice at the guilt phase resulting from
the cumulative impact of trial counsel’s alleged deficiencies. Cf. Harris By &
Through Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995).

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