Mooneyham v. Nooth

Filing 15

ORDER. Petitioner's Petition 1 is denied. The Clerk of the Court is directed to enter a judgment dismissing this proceeding. Should petitioner appeal, a certificate of appealability is denied as petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). See formal ORDER. Signed by Chief Judge Ann L. Aiken on April 6, 2015. (rh)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
DAVID ALAN MOONEYHAM,
Petitioner,
v.

2:14-cv-01046-AA
ORDER

MARK NOOTH,
Respondent.
Aiken, District Judge.
Petitioner is in the custody of the Oregon Department of
Corrections (ODOC) pursuant to a judgment from the Deschutes
County Circuit Court after convictions for one count of Sexual
Abuse in the First Degree and two counts of Attempted Sexual
Abuse in the First Degree.

Exhibit 101.

After petitioner

entered a plea of “guilty by way of Alvord plea,” the court
imposed a sentence of 75 months on the count of Sexual Abuse,
and consecutive 43-month sentences for each of the counts of
Attempted Sexual Abuse. Id.
1 - ORDER

Petitioner appealed, but then voluntarily dismissed his
appeal and did not seek review from the Oregon Supreme Court.
Exhibits 106 - 108.
Petitioner filed a petition for post-conviction relief,
but the Malheur County Circuit Court dismissed the petition
without prejudice. Exhibit 111.
Petitioner filed a second Petition for Post-Conviction
Relief,

which the Malheur County Circuit Court denied.

Oregon Court

of Appeals

affirmed without

The

opinion and the

Oregon Supreme Court denied review. Exhibits 132 - 137.
Petitioner

filed

a

petition

alleging four claims for relief.

under

28

U.S.C.

§

2254

Petition (#1).

Respondent now moves to deny petitioner's petition on the
ground that petitioner procedurally defaulted Grounds Two Four, and that the claim alleged in Ground One was was denied
in

a

decision

that

was

neither

"contrary

to,"

nor

an

"unreasonable application of," United States Supreme Court
precedent.
argues

Response to Petition (#12) p. 2.

that

petitioner's

claims

should

be

Respondent also
denied

on

the

merits. Id.
Under 28 U.S.C.

§

2254(b) (1), an application for a writ

of habeas corpus "shall not be granted" unless "the applicant
has exhausted the remedies available in the courts of the
State[.]"

2 - ORDER

Exhaustion occurs when a petitioner has given the

state courts a "full and fair" opportunity to consider and
resolve all federal claims.
1,

10

(1992).

Keeney v. Tomayo-Reyes, 504 U.S.

If a petitioner can present a claim to the

state's Supreme Court, he must do so to properly exhaust that
claim.

O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).

If

a

petitioner

has

failed

to

present

a

federal

constitutional claim to the state's highest court (i.e., has
failed to exhaust state remedies)
because

of

a

procedural
Boerckel,

defaulted.

bar,

and can no longer do so

that

526 U.S.

at

claim
848,

Thompson, 501 U.S. 722, 731-32 (1991).

is

procedurally

citing Coleman v.

Once a petitioner has

procedurally defaulted a claim, federal habeas corpus review
is barred unless the petitioner can demonstrate: (1) cause for
the procedural default,
failure.

Edwards

v.

and

( 2)

Carpenter,

actual prejudice from the
529

U.S.

446,

451

(2000),

Coleman, 501 U.S. at 750; see also Wainwright v. Sykes,

433

U.S. 72 (1977); Murray v. Carrier, 477 U.S. 748 (1986); Hughes
v. Idaho Bd. of Corr., 800 F.2d 905
Cause

for

a

procedural

(9~

default

Cir. 1986).
exists

only

if

a

petitioner can "show that some objective factor external to
the

defense

impeded counsel's

efforts

to

comply with

State's procedural rule." Murray, 477 U.S. at 488.

the

Prejudice

exists only if a petitioner shows that the procedural default
"worked

3 - ORDER

to

[petitioner's]

actual

and

substantial

disadvantage."
(1982).

United States v.

Frady,

456 U.S.

152,

170

Demonstrating a mere possibility of prejudice is

insufficient.

Id.

Procedural defaults may also be excused by demonstrating
a "fundamental miscarriage of justice." Edwards v. Carpenter,
529

u.s.

446,

451

(2000).

To

establish

the

fundamental

miscarriage of justice exception to the exhaustion requirement
requires a showing of actual innocence. Schlup v. Delo, 513
U.S. 298, 329 (1995); Calderon v. Thompson, 523 U.S. 538, 559
(1998).
In this case, petitioner alleges four grounds for relief:
Ground One - ineffective assistance of counsel; Ground Two conviction obtained by use of a coerced confession; Ground
Three

cruel

and

unusual

punishment

I

disproportionate

punishment; and, Ground Four - ORS 137.719 is a "bad law."
Petitioner voluntarily dismissed his direct appeal and
alleged a single claim of ineffective assistance of counsel
in his petition for post-conviction relief.

Therefore the

claims alleged in Grounds Two - Four have never been fairly
presented to Oregon's appellate courts.
Because petitioner did not

fairly present the claims

alleged in Grounds Two- Four to Oregon's highest court,

4 - ORDER

and

the

time

alleged

for

presenting

in Ground Two

new

-

claims

Four

are

is

past, 1

the

claims

procedurally defaulted.

Petitioner has not established any cause and prejudice for his
procedural default or that he is entitled to the fundamental
miscarriage

of

justice

exception

to

the

exhaustion

requirement. Accordingly, the claims in Grounds Two - Four are
not properly before the court and are denied.
Under the Antiterrorism and Effective Death Penalty Act
("AEDPA"), 28 U.S.C.

§

2254, habeas relief may be granted only

when a state court's decision was "contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States" or
"was based on an unreasonable determination of the facts in
light

of

the

proceedings."

evidence
28 U.S.C.

§

presented

at

the

state

court

2254(d); Wiggins v. Smith, 539 U.S.

510, 520 (2003).
A state court's decision is "'contrary to' federal law if
it

fails

to

apply

the

correct

controlling

Supreme

Court

1

ORS 138 requires that direct appeals be filed not later
than 30 days after the judgment or order appealed from was
entered in the register.
ORS 138. 650 requires that PCR
appeals be filed within 30 days after the entry of final
judgment.
ORS 2. 520 requires petitions for review to the
Oregon Supreme Court be filed within 35 days from the date of
the Court of Appeals' decision. See also, ORAP 9.05(2) (same)
Finally, ORS 138.550(3) provides that all PCR claims must be
asserted in the original or amended petition unless they
could not reasonably have been asserted therein, and any
claims not so asserted are deemed waived.
5 - ORDER

authority or comes to a different conclusion ... [from] a case
involving
Morgan,

materially

indistinguishable

313 F.3d 1160,

1167

Cone, 535 U.S. 685, 694).
federal

(9th Cir.

facts."

2002)

Pirtle

v.

(citing Bell v.

The Supreme Court has held that "a

habeas court making the

'unreasonable application'

inquiry should ask whether the state court's application of
clearly established federal law was objectively unreasonable."
Williams v. Taylor, 529 U.S. 362, 409 (2000).
In

addition,

under

28

U.S.C.

2254 (d) (2),

§

"a

determination of a factual issue made by a state court shall
be presumed to be correct.

The applicant

shall have the

burden of rebutting the presumption of correctness by clear
and convincing evidence." Miller-El v. Cockrell, 537 U.S. 322,
351 (2003).
"[I]t

is

past

question

that

the

rule

set

forth

in

Strickland, qualifies as 'clearly established Federal law, as
determined

by

the

Supreme

Court

Williams v Taylor, supra at 391.

of

the

United

States. '"

Under Williams, a petitioner

may therefore be granted habeas corpus relief on a claim of
ineffective assistance of counsel only if the decision of the
state court was contrary to, or an unreasonable application of
Strickland v. Washington,

466 U.S. 668

(1984).

Under Strickland, a claim that counsel's assistance was
so ineffective as to require reversal of a conviction has two

6 - ORDER

components.

First, the petitioner must show that counsel's

performance was deficient; second, the petitioner must show
that the deficient performance prejudiced the defense.

Id. at

687.
The

first

prong of

the

Strickland test

requires

the

petitioner to demonstrate that "counsel's representation fell
below an objective standard of reasonableness.n
supra at 688.
petitioner

Strickland,

The second component of the test requires the

to

demonstrate

that

"there

is

a

reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
694.

Id., at

A "reasonable probability" is one that is sufficient to

undermine confidence in the outcome.

Id.

In order to satisfy the prejudice requirement in the
context of a plea agreement, the petitioner must demonstrate
that

there

is

a

"reasonable

probability

that,

but

for

counsel's errors, he would have not pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S.
52, 58-59 (1985). In plea agreement cases, the "resolution of
the 'prejudice' inquiry will depend largely on whether [an]
affirmative defense likely would have succeeded at trial. Id.
at 59.
Petitioner entered an Alvord plea in which the "parties
stipulate[ed]

7 - ORDER

out

of

life

sentence

pursuant

to

[ORS

137.719(2)." Exhibit 103,

p.

3.

Specifically,

the parties

agreed to a term of 180 months (15 years) with credit for time
served and for the sentence to be served concurrent to the
sentence he was then serving. Id. at Ex. 1.

As was discussed

by the parties at the time of the plea and sentencing hearing
in the trial court, as well as the post-conviction proceeding,
the purpose of the plea agreement was to take the "sentence
stipulated by the parties - out of ORS 137.719, which is a
" Exhibit 104, p. 2.

presumptive life sentence
lengthy colloquy,

the

trial

court

accepted the

After a

pleas

ultimately sentenced petitioner to the agreed upon term.

and
Id.

at 3-9; Exhibit 105, p. 3-6.
In his post-conviction proceeding petitioner argued that
he

could not

be

sentence because,

subject

to

ORS

137. 719' s

potential

life

while he had been sentenced to two prior

qualifying sexual crimes, at least one of the crimes occurred,
chronologically,

after

the

crime

for

which

he

faced

the

potential ORS 137.719 sentence. Petitioner alleged that his
counsel was ineffective,

but did "nothing to challenge the

imposition of the enhanced sentence and failed to verify the
use of the predicates used to support ORS 137. 719" Exhibit 112
p.

3.

Petitioner alleged that he was prejudiced because he

entered an Alvord plea on the premise that he
sentencing under ORS 137.719.

8 - ORDER

could face

The post-conviction court denied relief, finding that ORS
137.719 provides

that predicate offenses

occur based upon

whether an offender was previously sentenced and specifically
"doesn't talk about when the acts occurred,
when they were sentenced

* * *

it talks about

so the language of it is geared

toward sentencing not geared toward the chronology of when the
events occurred." Exhibit 130 p. 21.
Petitioner appealed via a
Court

of Appeals

Balfour Brief.

affirmed without

opinion

The Oregon

and the

Oregon

Supreme Court denied review.
In Ground One, petitioner alleges that trial counsel was
ineffective for failing to "argue the fact that the crime he
was being sentenced on, had been committed before there were
any predicates used to uphold a sentence under ajny enhanced
sentencing statutes."

Petition (#1) p, 6.

Implicit in petitioner's argument is the acknowledgment
that there was a potential that he could have received a life
sentence under ORS 137.791. Petitioner's understanding of the
statute is consistent with the post-conviction court's finding
and trial counsel reading of the statute. Exhibit 130 p. 2122.

Because of this potential, petitioner requested that his

counsel negotiate the case in order to receive less than life.
Exhibit 120. Counsel secured a plea deal which resulted in a
sentence outside of the presumptive life sentence he could

9 - ORDER

have received under ORS 137.719.
Although plaintiff may believe that ORS 137.719 is "bad
law", the plain language of the statute dictates that he could
have been sentenced to a life term under ORS 137.719 for his
third sexual offense.
through

a

plea

Petitioner avoided a

agreement

that

he

life sentence

requested

counsel

to

negotiate.
A plea

is

valid

if

it

represents

a

voluntary

and

intelligent choice among alternative courses of action open to
the defendant.
When

a

plea

proceeding,

Hill v.
is

a

Lockhart,

subsequently

474 U.S.

challenged

presumption of verity is

proceeding record.

Blackridge v.

52,

in

56

a

(1985).

collateral

given to the plea

Allison,

431 U.S.

73,

74

( 1977) .
In this case,
lengthy

colloquy

petitioner's

the trial court engaged petitioner in a
in

order

voluntary

to

ensure

choice,.

that

Exhibit

the
104,

plea
p.

was
4-9.

Petitioner acknowledged that pursuant to the Alvord plea, he
did not wish to admit the underlying facts but did want to
take advantage of the negotiated plea.

The plea proceeding

record establishes that petitioner's plea was
voluntary,

and intelligent,

knowing and

and that counsel's action in

negotiating the plea to avoid a life sentence was reasonable
and not ineffective assistance of counsel.

10 - ORDER

The

post

conviction

court

finding

that

petitioner's

counsel was not ineffective is neither contrary to,

nor an

unreasonable application of clearly established supreme court
precedent and is supported by the record.
Based on all of the foregoing, petitioner's Petition (#1)
is denied.

The Clerk of the Court is directed to enter a

judgment dismissing this proceeding.
IT IS SO ORDERED.

Certificate o£
Shou~dpetitioner appea~,

Appea~abi~ity

a certi£icate o£

is denied as petitioner has not made a
the

denia~

o£

a

constitutiona~

appea~abi~ity

substantia~

right.

See

28

showing o£
U.S.C.

2253 (c) (2).

DATED this

of April, 2015.

Ann Aiken
United States District Judge

11 - ORDER

§