Joshua Marsing v. JEFF PREMO, Superintendent

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA MARSING,
Petitioner-Appellant,
v.
JEFF PREMO, Superintendent,
Respondent-Appellee.
No. 14-36098
D.C. No. 1:07-cv-00705-CL
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted July 8, 2016**
Portland, Oregon
Before: PREGERSON, BEA, and OWENS, Circuit Judges.
Joshua Marsing, an Oregon state court prisoner, appeals from the district
court’s denial of his petition for a writ of habeas corpus. As the parties are familiar
FILED
JUL 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The district court correctly held that Marsing’s procedural default of the
ineffective assistance of trial counsel claim was not excused under Martinez v.
Ryan, 132 S. Ct. 1309 (2012). To show excusable cause for a procedurally
defaulted ineffective assistance of counsel claim, a petitioner must establish,
among other things, that (1) the claim is substantial and (2) that his post-conviction
relief (PCR) counsel was ineffective for not bringing the claim in state court. Id. at
1320. “To establish ineffective assistance of counsel, [Marsing] must demonstrate
(1) that counsel was ineffective and (2) that counsel’s deficient performance
prejudiced him.” Smith v. Ryan, -- F.3d --, No. 14-99008, 2016 WL 3034147, at
*21 (9th Cir. May 26, 2016) (citing Strickland v. Washington, 466 U.S. 668, 692
(1984)).
1. Marsing’s ineffective assistance of trial counsel claim is not
substantial. According to Marsing, trial counsel’s “failure to object to the
admission of TTB’s written log on Fourteenth Amendment grounds fell below an
objective standard of reasonable representation.” We disagree. The introduction
of a coerced confession violates the Constitution only if the confession is the
product of government coercion. Colorado v. Connelly, 479 U.S. 157 (1986).
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Here, Marsing has offered virtually no evidence of government coercion. It is
irrelevant that TTB might have felt coercive pressure from her parents to confess
to sexual activity with Marsing or that TTB’s parents kept her confined at the
residential facility. There was no evidence of collusion between the detective and
TTB’s parents in eliciting TTB’s confession to sexual relations with Marsing. On
the contrary, TTB testified that the confession just “slipped out” while she was
talking to staff at the residential facility. Thus, trial counsel did not act outside the
wide range of reasonable professional assistance in failing to object to the
introduction of the log on due process grounds.
Yet, even assuming that counsel should have raised such an objection,
Marsing does not show that he was prejudiced by his trial counsel’s allegedly
deficient performance. Marsing fails to demonstrate that there is a reasonable
probability that he would not have been convicted if his trial counsel had
successfully objected to the log being introduced into evidence. See Strickland,
466 U.S. at 694.
First, Marsing’s trial counsel undermined the evidentiary value of the written
log during trial by eliciting testimony that TTB was led to believe that she could
not leave the residential facility if she did not admit to sexual contact with
Marsing, and that it was possible that the statements in the log were not completely
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accurate. Marsing’s counsel also argued during closing argument that the log was
not trustworthy. Therefore, it was not reasonably likely that excluding the log
would have made a difference. Second, the statements in the log were duplicative
of TTB’s testimony. TTB testified about her sexual activity with Marsing at
length, aside from her reading of the log. Lastly, there was overwhelming
evidence that established Marsing’s guilt independently of the log. For example,
the state introduced sexually explicit letters that Marsing exchanged with TTB, and
one of TTB’s friends testified that she saw Marsing engaging in sexual contact
with TTB. Accordingly, Marsing’s ineffective assistance of trial counsel claim
was not substantial.
2. Marsing’s PCR counsel was not ineffective by failing to bring the
ineffective assistance of trial counsel claim in state court. As the government
points out, “[a]lthough post-conviction counsel initially alleged that trial counsel
was ineffective for failing to object to admission of the victim’s log, he later
withdrew that claim.” Therefore, there “is a strong presumption that counsel’s
attention to certain issues to the exclusion of others reflects trial tactics rather than
sheer neglect.” Harrington v. Ritcher, 562 U.S. 86, 109 (2011) (internal quotation
marks and citation omitted). PCR counsel’s decision to withdraw the ineffective
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assistance of trial counsel claim was clearly tactical and reasonable considering its
weaknesses.
AFFIRMED.
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