Michael James Russum v. KEVIN JACKSON, Acting Superintendent of Two Rivers Correctional Institution

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL JAMES RUSSUM,
Petitioner-Appellant,
v.
KEVIN JACKSON, Acting Superintendent
of Two Rivers Correctional Institution,
Respondent-Appellee.
No. 20-35774
D.C. No. 2:18-cv-02035-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted July 6, 2021**
Portland, Oregon
Before: M. MURPHY,*** PAEZ, and BENNETT, Circuit Judges.
A jury found Michael Russum guilty of four counts of Sodomy in the
first degree, Or. Rev. Stat. § 163.405. After, his convictions were affirmed
* 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).
*** The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
AUG 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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on direct appeal, State v. Russum, 333 P.3d 1191 (Or. Ct. App. 2014),
Russum filed a state-court petition for post-conviction relief. He asserted
counsel was ineffective in eliciting at trial evidence the prosecution was
precluded from adducing. See generally State v. Southard, 218 P.3d 104
(Or. 2009). See also State v. Volynets-Vasylchenko, 267 P.3d 206 (Or. Ct.
App. 2011). Applying Strickland v. Washington, 466 U.S. 668 (1984), the
state court found that trial counsel’s decision to adduce the challenged
testimony was strategic and, furthermore, determined trial counsel’s
strategic choice was reasonable.
After exhausting his state-court remedies, Russum brought the instant
28 U.S.C. § 2254 habeas petition, reasserting his claim of ineffective
assistance of trial counsel. Applying the standards set out in 28 U.S.C.
§ 2254(d)(1) and (2), the district court denied relief. Russum appeals.
Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c),1 this
court affirms the denial of Russum’s habeas petition.
1. The state post-conviction court found, as a matter of fact, that trial
counsel made a strategic decision in adducing the evidence at issue. As the
1 The district court granted Russum a certificate of appealability
as to his claim of ineffective assistance of trial counsel. 28 U.S.C.
§ 2253(c)(1)(A), (c)(3).

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federal district court correctly determined, the state court’s factual finding is
reasonable. See id. § 2254(d)(2). In particular, the state court’s finding is
supported by the following evidence: (1) trial counsel’s affidavit; (2) the
consistency between trial counsel’s decision to adduce the testimony and his
theory of defense, as set out in his opening and closing statement ; and
(3) record indications, in the form of an agreement by the prosecution not to
adduce the challenged evidence, that trial counsel was aware the challenged
evidence had the potential to be damaging.
The standard set out in § 2254(d) is exceedingly difficult to satisfy.
[A] state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different
conclusion in the first instance. . . . [E]ven if reasonable minds
reviewing the record might disagree about the finding in
question, on habeas review that does not suffice to supersede the
trial court’s determination.
Wood v. Allen, 558 U.S. 290, 301 (2010) (internal quotations and alterations
omitted); Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014). Here,
sufficient record evidence supports the state court’s factual finding and,
thus, even if this court would not have made the same finding, the state
court’s factual determination is not unreasonable. Murray, 745 F.3d at 999.
2. Having found that trial counsel’s decision to introduce the
challenged evidence was well-informed and strategic, the state post-
conviction court further determined that trial counsel’s decision was

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reasonable. As the federal district court correctly determined, the state
court’s resolution of Strickland’s performance prong is reasonable. See 28
U.S.C. § 2254(d)(1). Even in the context of de novo review, Strickland’s
performance prong is difficult to satisfy. Harrington v. Richter, 562 U.S.
86, 105 (2011). “A court considering a claim of ineffective assistance must
apply a strong presumption that counsel’s representation was within the
wide range of reasonable professional assistance.” Id. at 104 (internal
quotations omitted). Under this deferential standard, “strategic choices
made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
Here, the state court reasonably concluded that trial counsel’s decision to
elicit the challenged evidence, as part of an overall strategy of raising doubt about
the objectivity of all the CARES-related evidence adduced by the prosecution at
trial, was reasonable. Again, whether this court would have so determined if
asked to resolve that question in the first instance is not determinative.
Instead, the question is “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” See Harrington, 562
U.S. at 105. The answer to that question is clearly “yes.”
AFFIRMED.

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