Darren Hogue v. Mark Nooth

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 11, 2018
• Docket: 17-35393
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DARREN HOGUE, No. 17-35393

Petitioner-Appellant, D.C. No. 2:12-cv-02300-CL

v. MEMORANDUM* MARK NOOTH,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted July 9, 2018** Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and MARQUEZ,*** District Judge.

Darren Hogue, an Oregon state prisoner, appeals from the denial of his

petition for a writ of habeas corpus. As the parties are familiar with the facts, we

* 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 Rosemary Marquez, United States District Judge for the District of Arizona, sitting by designation. do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. Petitioner’s waiver of any collateral challenge to his conviction or

sentence does not strip this court of jurisdiction under 28 U.S.C. § 2254 because

his petition challenges that waiver’s validity on ineffective-assistance grounds.

Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005).

2. The Oregon post-conviction-relief (“PCR”) court adjudicated petitioner’s

ineffective-assistance claim “on the merits,” and 28 U.S.C. § 2254(d) therefore

applies. In addition to finding that petitioner had failed to file his state habeas

petition within his appeal waiver’s sixty-day deadline, the PCR court also found

“that petitioner was of sound mind, and that he executed the waiver of post

conviction remedies and collateral relief freely, voluntarily and knowingly.” This

invocation of the test for the constitutional validity of guilty pleas, see North

Carolina v. Alford, 400 U.S. 25, 31 (1970), indicates that the court “understood

itself to be deciding a question with federal constitutional dimensions,” Johnson v.

Williams, 568 U.S. 289, 305 (2013), in turn indicating that the court sought to

address petitioner’s claim on its merits.

The lack of an express reference to Strickland v. Washington, 466 U.S. 668

(1984), or Hill v. Lockhart, 474 U.S. 52 (1985), does not indicate otherwise. The

PCR court’s application of the due-process “voluntary and knowing” test

2 necessarily reflected a judgment that petitioner’s counsel had adequately

investigated petitioner’s case and advised him about his plea agreement: were that

not so, petitioner’s plea and post-conviction-remedies waiver could be neither

voluntary nor intelligent. See Hill, 474 U.S. at 56-57; Washington, 422 F.3d at

872-73.

Contrary to petitioner’s argument, the PCR court’s use of the term

“dismissal” in disposing of his petition sheds no light on whether the court

adjudicated petitioner’s claim “on the merits”; Oregon law uses the term

“dismissal” to describe the adverse disposition of a state habeas petition even when

the petition is resolved on its merits. See Or. Rev. Stat. § 34.680(1); Dunn v. Hill,

156 P.3d 72, 76 (Or. Ct. App. 2007). Finally, we reject petitioner’s reliance on

respondent’s state-court briefing, which does not overcome the express indications

in the PCR court’s decision that it evaluated petitioner’s claim “based on the

intrinsic right and wrong of the matter,” Johnson, 568 U.S. at 303.

3. Petitioner offers no clear and distinct argument that the PCR court’s

adjudication of the merits of his claim “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or that it “was based on an unreasonable

determination of the facts” under 28 U.S.C. § 2254(d). He has therefore forfeited

any argument that he has overcome that provision. See Avila v. L.A. Police Dep’t,

3 758 F.3d 1096, 1101 (9th Cir. 2014).

4. Because 28 U.S.C. § 2254(d) governs, and because petitioner has

forfeited any argument that the state PCR court’s resolution of his claim was either

contrary to or an unreasonable application of clearly established federal law, our

inquiry is restricted to the factual record before the state courts, and petitioner is

not entitled to an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 182-

85 (2011); see also 28 U.S.C. § 2254(d)(2) (restricting federal habeas review to

“the evidence presented in the State court proceeding”).

AFFIRMED.