                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                                OCT 29 2014

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

ROBERT WAYNE BRAY,                                No. 13-35689

             Petitioner - Appellant,              D.C. No. 2:11-cv-01128-SI

       v.
                                                  MEMORANDUM*
GUY HALL,

             Respondent - Appellee.

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

                      Argued and Submitted October 9, 2014
                               Portland, Oregon

Before: FISHER, CHRISTEN and NGUYEN, Circuit Judges.

      Robert Wayne Bray appeals the dismissal of his petition for habeas corpus

under 28 U.S.C. § 2254 collaterally attacking his convictions under Oregon law.

Reviewing de novo, we affirm.

      1. Bray failed to preserve his sufficiency of evidence claim at trial, so it is

procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Oregon law required Bray to preserve at trial his argument that the prosecution

failed to provide sufficient evidence of his intent to print the images. See, e.g.,

State v. Long, 425 P.2d 528, 529 (Or. 1967). The record does not show the

prosecution abandoned this theory of guilt, as Bray contends. The indictment

charged Bray with knowing possession of images depicting sexually explicit

conduct involving a child “with intent to print or display” them, so Bray was on

notice that either theory of guilt would suffice for conviction. Cf. State v. Hitz, 766

P.2d 373, 375 (Or. 1988) (observing that failure to press an issue “is no waiver,

once an issue has been raised” (emphasis added)).

       2. Similarly, Bray’s claim that the prosecution committed misconduct when

it destroyed his hard drive is procedurally defaulted. Bray presented this claim for

the first time during his post-conviction proceeding. Oregon law required Bray to

raise this argument at trial given his knowledge of the hard drive’s destruction. See

Palmer v. State, 867 P.2d 1368, 1371 (Or. 1994). He failed to do so, and he is

therefore barred from raising it in his federal petition. See Coleman, 501 U.S. at

750.

       3. The state court reasonably determined Bray’s trial counsel was not

ineffective. Although it did not specifically address whether Bray’s counsel should

have investigated the computer’s capacity to print, the state court’s conclusion that


                                           2
Bray did not suffer ineffective assistance is owed deference. See Harrington v.

Richter, 131 S. Ct. 770, 784 (2011). The record shows Bray’s trial counsel hired

an investigator who obtained and reviewed the available material found on Bray’s

computer. Because the hard drive was destroyed before Bray was indicted, his

counsel could not have obtained a mirror image copy of it or otherwise

investigated the hard drive. Therefore, the state court’s determination that Bray’s

counsel was not ineffective was reasonable. See id. at 787-88.

      AFFIRMED.




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