Kory Pedersen v. Oregon Board of Parole

K
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 24 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KORY CHRISTIAN PEDERSEN,                        No.    19-35599

                Petitioner-Appellant,           D.C. No. 6:17-cv-00145-JR

 v.
                                                MEMORANDUM*
OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION,

                Respondent-Appellee.

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

                    Argued and Submitted December 10, 2020
                              Seattle, Washington

Before: BERZON, MILLER, and BRESS, Circuit Judges.

      Kory Pedersen appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition. We review de novo the district court’s denial of § 2254 relief.

Carter v. Davis, 

946 F.3d 489

, 501 (9th Cir. 2019). We have jurisdiction under 28

U.S.C. § 2253, and we affirm.

      Pedersen resisted arrest and then twice shot at the arresting police officer. An


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Oregon jury found Pedersen guilty of attempted aggravated murder and other

offenses. Pedersen now contends that his trial lawyer provided ineffective assistance

of counsel by not adequately investigating and presenting Pedersen’s claim that he

shot at the officer in self-defense and by failing to put on additional expert witnesses

to support Pedersen’s theory that his second shot was involuntary.

      Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

we may only grant habeas relief if the state court’s decision (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States”; or (2) “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d).          To establish ineffective assistance,

Pedersen must show that (1) his counsel performed deficiently, and (2) counsel’s

deficient performance prejudiced him. Strickland v. Washington, 

466 U.S. 668

, 687

(1984). Under AEDPA, we may only grant relief if the constitutional violation is

“beyond any possibility for fairminded disagreement.” Harrington v. Richter, 

562 U.S. 86

, 103 (2011).1

      Assuming without deciding that counsel acted deficiently, the state court

could reasonably conclude that counsel’s performance was not prejudicial—that


1
 The State has forfeited its argument, made for the first time on appeal, that Pedersen
failed to exhaust his claims by not raising them in state post-conviction proceedings.
See Franklin v. Johnson, 

290 F.3d 1223

, 1233 (9th Cir. 2002).

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there is no “reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694

.

Pedersen’s counsel did make a self-defense argument to the jury, and the jury was

given a self-defense instruction. The jury also heard Pedersen’s testimony about

why he fired the first shot, as well as a video that documented most of the encounter.

      In finding Pedersen guilty, the jury determined that he had the necessary intent

to kill the officer without proper justification for at least one of the shots. Under

these circumstances, the state court could reasonably conclude that a more accurate

presentation of the self-defense theory would not have changed the result.

Id. That is especially

the case considering the apparent weakness of Pedersen’s self-defense

theory, including the fact that Pedersen never saw the officer draw his handgun or

begin to do so before Pedersen fired the first shot. The jury either decided that

Pedersen did not intend to hit the officer with the first shot, in which case the

inaccurate self-defense theory would not have mattered, or it concluded that

Pedersen did have the intent to kill the officer when he fired the first shot, in which

case it would not have mattered whether the jury was told that he need not have that

intent to succeed on self-defense. Either way, the attorney’s inaccuracy as to the

Oregon law of self-defense did not matter to the jury verdict.

      We likewise reject Pedersen’s argument that the state court decision was an

unreasonable application of Strickland because counsel acted deficiently by failing


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to put on expert testimony from Captain Kenneth Herbst concerning whether the

arresting officer’s actions violated Oregon’s Department of Public Safety Standards

and Training guidelines for the use of force. Pedersen’s “right to use force in self-

defense depends on [his] own reasonable belief in the necessity for such action, and

not on whether the force used or about to be used on him actually was unlawful.”

State v. Oliphant, 

218 P.3d 1281

, 1290 (Or. 2009). Given the marginal relevance of

Herbst’s proposed testimony, reasonable jurists could determine that counsel’s

alleged error was not prejudicial. See 

Harrington, 562 U.S. at 103

.

        The state court could likewise reasonably conclude that any error in counsel’s

failure to put on additional experts for Pedersen’s second fired shot was not

prejudicial. Counsel already put forward an expert witness who testified that it was

“very possible” that Pedersen fired the second shot involuntarily because the officer

had shot Pedersen in the hand. The jury thus had a basis to vindicate this theory,

had it credited it. Pedersen has not shown how additional experts on this topic would

have changed the result. That is particularly so considering that this defense at most

went to the second shot and did not absolve Pedersen of responsibility for the first

shot.

        AFFIRMED.




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