Truett Watts v. Rick Coursey ( 2013 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              JUL 23 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TRUETT JOHN WATTS,                               No. 11-35155
    Petitioner - Appellant,            D.C. No. 6:10-cv-00375-HO
    v.
    MEMORANDUM*
    RICK COURSEY,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the District of Oregon
    Michael R. Hogan, District Judge, Presiding
    Argued and Submitted July 8, 2013
    Portland, Oregon
    Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
    An Oregon jury convicted Petitioner Truett John Watts of murder. The
    Oregon post-conviction courts rejected Watts’s contention that he received
    ineffective assistance of counsel (IAC) at trial. Watts filed a federal habeas
    petition raising the same IAC claim he presented in state post-conviction
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    proceedings, and the district court denied the petition. We have jurisdiction over
    Watts’s appeal pursuant to 
    28 U.S.C. §§ 1291
     and 2253, and we affirm.
    The Oregon courts did not have a full and fair opportunity to act on the IAC
    claim Watts presents here: that trial counsel should have pursued a defense theory
    based on Watts’s Paxil ingestion and a rumor that the murder victim might have
    sexually abused Watts.1 O’Sullivan v. Boerckel, 
    526 U.S. 838
    , 842 (1999). Proper
    exhaustion in state court requires a specific statement of operative facts supporting
    a claim. Wood v. Ryan, 
    693 F.3d 1104
    , 1117 (9th Cir. 2012); Moormann v.
    Schriro, 
    426 F.3d 1044
    , 1056 (9th Cir. 2005). A claim is not exhausted merely
    because the facts relied on by a petitioner in federal court were in the state-court
    record. Gulbrandson v. Ryan, 
    711 F.3d 1026
    , 1042 (9th Cir. 2013). We affirm
    based on Watts’s failure to exhaust his new claim in state court. 
    28 U.S.C. § 2254
    (b)(1)(A).
    Alternatively, Watts’s IAC claim lacks merit. See 
    28 U.S.C. § 2254
    (b)(2) (a
    habeas claim may be denied on its merits despite the petitioner’s failure to
    exhaust). Watts denied ever being sexually abused, and even those who harbored
    these suspicions denied having any proof that the sexual abuse occurred. Watts
    points to no evidence that trial counsel failed to investigate all reasonably possible
    1
    Indeed, Watts did not articulate this allegation in the district court.
    2
    defense strategies, cf. Wiggins v. Smith, 
    539 U.S. 510
    , 524–25 (2003), and presents
    no evidence that trial counsel’s decision to pursue an insanity defense, and to
    forego a defense built on unconfirmed suspicions, was unreasonable under the
    circumstances, see Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1407 (2011) (stating a
    court must “affirmatively entertain the range of possible reasons [] counsel may
    have had for proceeding as [he] did.” (internal quotation marks omitted)); Knowles
    v. Mirzayance, 
    556 U.S. 111
    , 127 (2009) (“The law does not require counsel to
    raise every available nonfrivolous defense.”). Accordingly, Watts fails to rebut the
    “strong presumption” that counsel rendered effective assistance. Harrington v.
    Richter, 
    131 S. Ct. 770
    , 787 (2011) (internal quotation marks omitted).
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-35155

Judges: Pregerson, Murguia, Christen

Filed Date: 7/23/2013

Precedential Status: Non-Precedential

Modified Date: 3/2/2024