NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL LOREN JENKINS, No. 22-35341
Petitioner-Appellant, D.C. No. 2:16-cv-00247-YY
v. MEMORANDUM* ERIN REYES, Superintendent Two Rivers Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court for the District of Oregon Marco A. Hernández, Chief District Judge, Presiding
Argued and Submitted April 3, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and SILVER,** District Judge.
Oregon state prisoner Daniel Loren Jenkins appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas petition challenging his 2005 conviction for
solicitation to commit aggravated murder. Applying the Antiterrorism and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. Effective Death Penalty Act (“AEDPA”), the district court, as relevant here, denied
habeas relief (and a certificate of appealability) on Jenkins’s ineffective assistance
of counsel and bill of attainder claims. We granted a partial certificate of
appealability on the ineffective assistance of counsel claim. As the parties are
familiar with the facts, we do not recount them here. We affirm.
1. Jenkins’s ineffective assistance of counsel claim fails the “‘doubly’
deferential review” under the combination of Strickland v. Washington, 466 U.S.
668 (1984), and AEDPA. Michaels v. Davis, 51 F.4th 904, 939 (9th Cir. 2022)
(per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)), petition for
cert. filed, No. 23-5038 (U.S. June 30, 2023).
To establish ineffective assistance of counsel, a defendant must show that
“counsel’s performance was deficient” and “the deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687. Strickland instructs that “[t]he proper
measure of attorney performance” is “reasonableness under prevailing professional
norms.” Id. at 688. The Supreme Court has not “define[d] with greater precision
the weight to be given to recognized canons of ethics, the standards established by
the state in statutes or professional codes, and the Sixth Amendment, in defining
the proper scope and limits on [attorney] conduct.” Nix v. Whiteside, 475 U.S.
157, 165-66 (1986).
Under AEDPA, we may grant relief only if the state court’s adjudication
2 “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2). The Oregon Circuit Court’s denial of
Jenkins’s petition on collateral review provides the “relevant rationale” under
AEDPA. See Wilson v. Sellers, 584 U.S. 122, 125 (2018).
The Oregon Circuit Court’s decision denying post-conviction relief was
neither contrary to, nor involved an unreasonable application of, clearly established
law. The Oregon Circuit Court dismissed Jenkins’s claim “for all of the reasons”
offered by the state. Those reasons included:
Before disclosing petitioner’s actual threat of harm to the Bidwells and their children, Lynne Dickison took all available steps to determine whether she was ethically required to make that disclosure. The Oregon State Bar investigated the matter and found “no credible evidence of misconduct” by Ms. Dickison.
It was not unreasonable for the Circuit Court to conclude that Dickison did
not depart from the applicable ethical norms. Dickison reasonably believed that
she could disclose the communication under professional norms prevailing at the
time and conducted a reasonable investigation and inquiry before coming to that
conclusion. See McClure v. Thompson, 323 F.3d 1233, 1245-46 (9th Cir. 2003)
(“Reasonableness of belief may be strongly connected to adequacy of investigation
3 or sufficiency of inquiry in the face of uncertainty.”); Michaels, 51 F.4th at 931-33,
936-37.
Disciplinary Rule (“DR”) 4-101(C)(3) of the 1999 Oregon Code of
Professional Responsibility permitted the disclosure of “[t]he intention of the
lawyer’s client to commit a crime and the information necessary to prevent the
crime.” In her own professional judgment, Dickison understood Jenkins to have a
“clear and serious intent at that time to follow through” with crimes of violence
against Bidwell, his wife, and their children. Dickison also credited Dr. Colby’s
“professional opinion” that “given his testing of Mr. Jenkins he believed that Mr.
Jenkins would carry out those threats as soon as he was able to.”
Based on “the statement to Dr. Colby, Dr. Colby’s opinion about
dangerousness, Dr. Colby’s opinion about intent to follow through, the police
reports in this case and the history of this case, [and] the defendant’s [violent]
personal history,” Dickison could have reasonably believed that DR 4-101(C)(3)
permitted disclosure. Further, the Oregon State Bar had advised her that she could
ethically disclose Jenkins’s threats as long as she “believed that they were viable.”
Jenkins counters that Dickison’s letters to the State Bar—acknowledging
that Jenkins’s “release was not imminent nor contemplated”—indicate that her
disclosure was unreasonable. But even if Jenkins’s release from custody were not
imminent, the record indicates that Dickison was concerned that Jenkins would be
4 able to “reach[] somebody in the outside and pay[] them to hurt somebody or kill
somebody” or that he “might have contact with someone inside the jail who would
then do his bidding once they were released.” Dickison’s concern was especially
reasonable because Jenkins had been charged with soliciting murder prior to
making the threats in question.
Dickison conducted a thorough and thoughtful inquiry before choosing to
reveal the threats. See McClure, 323 F.3d at 1245-46. Prior to her disclosure,
Dickison 1) had a law student at her firm investigate the ethical code; 2) called the
Oregon State Bar for advice; 3) talked to her boss; and 4) asked the trial court
judge whether (hypothetically) she could disclose. See id. at 1246. The Oregon
Circuit Court reasonably denied Jenkins’s claim on the ground that Dickison “took
all available steps to determine whether she was ethically required to make that
disclosure.” Jenkins does not point to any case that would have required Dickison
to consult with her client prior to disclosure.
Jenkins argues that the fact that the Oregon Court of Appeals already held
that Jenkins’s statements to Dr. Colby “were protected by the attorney-client
privilege,” see State v. Jenkins, 79 P.3d 347, 348 (Or. Ct. App. 2003), opinion
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL LOREN JENKINS, No. 22-35341
Petitioner-Appellant, D.C. No. 2:16-cv-00247-YY
v. MEMORANDUM* ERIN REYES, Superintendent Two Rivers Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court for the District of Oregon Marco A. Hernández, Chief District Judge, Presiding
Argued and Submitted April 3, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and SILVER,** District Judge.
Oregon state prisoner Daniel Loren Jenkins appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas petition challenging his 2005 conviction for
solicitation to commit aggravated murder. Applying the Antiterrorism and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. Effective Death Penalty Act (“AEDPA”), the district court, as relevant here, denied
habeas relief (and a certificate of appealability) on Jenkins’s ineffective assistance
of counsel and bill of attainder claims. We granted a partial certificate of
appealability on the ineffective assistance of counsel claim. As the parties are
familiar with the facts, we do not recount them here. We affirm.
1. Jenkins’s ineffective assistance of counsel claim fails the “‘doubly’
deferential review” under the combination of Strickland v. Washington, 466 U.S.
668 (1984), and AEDPA. Michaels v. Davis, 51 F.4th 904, 939 (9th Cir. 2022)
(per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)), petition for
cert. filed, No. 23-5038 (U.S. June 30, 2023).
To establish ineffective assistance of counsel, a defendant must show that
“counsel’s performance was deficient” and “the deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687. Strickland instructs that “[t]he proper
measure of attorney performance” is “reasonableness under prevailing professional
norms.” Id. at 688. The Supreme Court has not “define[d] with greater precision
the weight to be given to recognized canons of ethics, the standards established by
the state in statutes or professional codes, and the Sixth Amendment, in defining
the proper scope and limits on [attorney] conduct.” Nix v. Whiteside, 475 U.S.
157, 165-66 (1986).
Under AEDPA, we may grant relief only if the state court’s adjudication
2 “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2). The Oregon Circuit Court’s denial of
Jenkins’s petition on collateral review provides the “relevant rationale” under
AEDPA. See Wilson v. Sellers, 584 U.S. 122, 125 (2018).
The Oregon Circuit Court’s decision denying post-conviction relief was
neither contrary to, nor involved an unreasonable application of, clearly established
law. The Oregon Circuit Court dismissed Jenkins’s claim “for all of the reasons”
offered by the state. Those reasons included:
Before disclosing petitioner’s actual threat of harm to the Bidwells and their children, Lynne Dickison took all available steps to determine whether she was ethically required to make that disclosure. The Oregon State Bar investigated the matter and found “no credible evidence of misconduct” by Ms. Dickison.
It was not unreasonable for the Circuit Court to conclude that Dickison did
not depart from the applicable ethical norms. Dickison reasonably believed that
she could disclose the communication under professional norms prevailing at the
time and conducted a reasonable investigation and inquiry before coming to that
conclusion. See McClure v. Thompson, 323 F.3d 1233, 1245-46 (9th Cir. 2003)
(“Reasonableness of belief may be strongly connected to adequacy of investigation
3 or sufficiency of inquiry in the face of uncertainty.”); Michaels, 51 F.4th at 931-33,
936-37.
Disciplinary Rule (“DR”) 4-101(C)(3) of the 1999 Oregon Code of
Professional Responsibility permitted the disclosure of “[t]he intention of the
lawyer’s client to commit a crime and the information necessary to prevent the
crime.” In her own professional judgment, Dickison understood Jenkins to have a
“clear and serious intent at that time to follow through” with crimes of violence
against Bidwell, his wife, and their children. Dickison also credited Dr. Colby’s
“professional opinion” that “given his testing of Mr. Jenkins he believed that Mr.
Jenkins would carry out those threats as soon as he was able to.”
Based on “the statement to Dr. Colby, Dr. Colby’s opinion about
dangerousness, Dr. Colby’s opinion about intent to follow through, the police
reports in this case and the history of this case, [and] the defendant’s [violent]
personal history,” Dickison could have reasonably believed that DR 4-101(C)(3)
permitted disclosure. Further, the Oregon State Bar had advised her that she could
ethically disclose Jenkins’s threats as long as she “believed that they were viable.”
Jenkins counters that Dickison’s letters to the State Bar—acknowledging
that Jenkins’s “release was not imminent nor contemplated”—indicate that her
disclosure was unreasonable. But even if Jenkins’s release from custody were not
imminent, the record indicates that Dickison was concerned that Jenkins would be
4 able to “reach[] somebody in the outside and pay[] them to hurt somebody or kill
somebody” or that he “might have contact with someone inside the jail who would
then do his bidding once they were released.” Dickison’s concern was especially
reasonable because Jenkins had been charged with soliciting murder prior to
making the threats in question.
Dickison conducted a thorough and thoughtful inquiry before choosing to
reveal the threats. See McClure, 323 F.3d at 1245-46. Prior to her disclosure,
Dickison 1) had a law student at her firm investigate the ethical code; 2) called the
Oregon State Bar for advice; 3) talked to her boss; and 4) asked the trial court
judge whether (hypothetically) she could disclose. See id. at 1246. The Oregon
Circuit Court reasonably denied Jenkins’s claim on the ground that Dickison “took
all available steps to determine whether she was ethically required to make that
disclosure.” Jenkins does not point to any case that would have required Dickison
to consult with her client prior to disclosure.
Jenkins argues that the fact that the Oregon Court of Appeals already held
that Jenkins’s statements to Dr. Colby “were protected by the attorney-client
privilege,” see State v. Jenkins, 79 P.3d 347, 348 (Or. Ct. App. 2003), opinion
adhered to as modified on reconsideration, 83 P.3d 390 (Or. Ct. App. 2004),
indicates that Dickison’s performance was necessarily deficient. But whether a
5 state court may have so ruled as a matter of evidentiary law does not pre-determine
this court’s analysis of the Sixth Amendment question under Strickland.
Though the relevant provision of the 1999 Oregon Evidence Code,
§ 503(4)(a), was stricter than DR 4-101(C)(3)—allowing disclosure only where
professional services were “sought or obtained to enable or aid anyone to commit
or plan to commit” a crime—Dickison could have reasonably thought that the
Code of Professional Responsibility permitted her disclosure of Jenkins’s
statements regardless of whether they could later be used against him as a matter of
state evidentiary law. See Michaels, 51 F.4th at 936 (inquiring into the existence
of a “plausible exception to the attorney-client privilege or the duty of
confidentiality under which” an attorney “might have reasonably been acting”
(emphasis added)).
2. We decline to expand the certificate of appealability to include
Jenkins’s bill of attainder claim. See 9th Cir. R. 22-1(e). Jenkins has not made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Oregon Evidence Code § 504-5 neither imposed punishment on
Jenkins nor was applied to him absent a judicial trial. See Selective Serv. Sys. v.
Minn. Pub. Int. Rsch. Grp., 468 U.S. 841, 846-47 (1984).
AFFIRMED.