Darren Hogue v. Mark Nooth ( 2018 )

NOT FOR PUBLICATION FILED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.
4