McMaster v. Nooth
Filing
54
Opinion and Order - The Amended Petition for Writ of Habeas Corpus (ECF 14 ) is DENIED. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 11/4/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RONALD KENNETH McMASTER,
Case No. 2:15-cv-00201-SI
Petitioner,
OPINION AND ORDER
v.
MARK NOOTH,
Respondent.
Nell Brown
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Samuel. A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 – OPINION AND ORDER
SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of his 2009 state-court
sentence arising from his probation revocation.
For the reasons
that follow, the Amended Petition for Writ of Habeas Corpus (#14)
should be denied.
BACKGROUND
On June 18, 2006, petitioner invited the victim over to his
house
for
inebriated,
a
barbecue
vomited,
and
and
some
fell
drinks.
asleep
Respondent’s Exhibit 127, p. 83.
sexually
assaulting
her,
but
The
on
victim
became
petitioner’s
couch.
She woke up to petitioner
she
was
unable
to
move.
When
petitioner realized she was awake, he stopped what he was doing
and apologized.
Id.
As a result, the Deschutes County Grand
Jury accused petitioner of Unlawful Sexual Penetration in the
First Degree, Sodomy in the First Degree, and three counts of
Sexual Abuse in the First Degree.
Respondent’s Exhibit 104.
On August 20, 2007, petitioner entered an Alford plea to one
count each of Attempted Unlawful Sexual Penetration in the First
Degree,
Attempted
Sodomy
in
the
First
Sexual Abuse in the First Degree.1
Degree,
and
Attempted
Respondent’s Exhibit 105.
Judge admonished him “you need to understand that if you violate
1
Pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), a court may
accept a guilty plea despite defendant's claims of innocence where the
defendant intelligently concludes that his best interests require entry of a
guilty plea and the record before the judge contains strong evidence of actual
guilt.
2 – OPINION AND ORDER
the terms and conditions of probation you come back and see me,
you’re going to prison.”
Respondent’s
Exhibit 106, p. 4.
On November 16, 2007, the Deschutes County Circuit Court
held petitioner’s sentencing hearing where the State requested a
downward departure of time served and ten years’ probation.
The
State outlined the agreement between the parties as follows: “The
agreement is basically that it’s a stipulated downward departure
with
132
months
of
Department
of
Corrections’
time
to
be
suspended if he were to be revoked on probation, he would be
going
to
the
Department
of
Corrections
Respondent’s Exhibit 108, p. 4.
for
132
months.”
This 132-month sentence was
reflected, albeit rather cryptically, in handwriting in the Plea
Petition.
Respondent’s Exhibit 105, p. 2.
The Plea Petition did
not, however, specifically identify the 132-month sentence as a
suspended sentence.
The
court
imposed
the
State’s
requested
petitioner left custody the day of sentencing.
Exhibit 108, pp. 17-18.
into
excuses
on
sentence,
and
Respondent’s
The court advised petitioner, “I’m not
probation.
If
you
come
and
see
me
on
a
[probation violation] . . . rest assured it will be one of the
worse days of your life.”
verified
with
the
Id at 23-24.
prosecutor
and
defense
Although the court
counsel
that
the
sentence exactly represented the agreement between the parties,
the court did not explicitly state that the 132-month prison
sentence was suspended pending petitioner’s compliance with the
terms of his probation.
3 – OPINION AND ORDER
Two years later, petitioner admitted to violating several
terms of his probation, leading to a probation violation hearing
where both petitioner and the State were represented by new
counsel.
The most serious violation occurred when he fled the
country for Costa Rica and remained on abscond status because he
“wasn’t
going
to
be
under
anyone’s
Respondent’s Exhibit 109, p. 8.
thumb
for
five
years.”
Authorities subsequently located
petitioner and returned him to the United States.
As a result of
petitioner’s failures on probation, the State asked the court to
impose a prison sentence of 132 months, stating that petitioner
“agreed with these sentences as a condition of the State taking
the case out of Measure 11.”
Id at 7.
The Judge presiding over the probation violation hearing was
the same Judge who had originally sentenced petitioner.
Due to
the passage of time, he listened to the audio recordings of the
plea and sentencing hearings in open court
intent
of
the
parties
at
that
time.
to determine the
After
the
recordings
concluded, the Judge stated, “I am convinced that from listening
to the record it was 132 months.
result. . . .”
Id at 39.
It was certainly the expected
Accordingly, the court proceeded to
impose a 132-month prison sentence on petitioner.
Petitioner
took
revocation judgment.
a
direct
appeal
from
the
probation
The Oregon Court of Appeals affirmed the
trial court without issuing a written opinion, and petitioner did
not seek further review in Oregon’s Supreme Court.
McMaster, 242 Or. App. 604, 255 P.3d 676 (2011).
4 – OPINION AND ORDER
State v.
Petitioner next filed for post-conviction relief (“PCR”) in
Malheur County where the PCR court denied relief.
Exhibit 126.
Respondent’s
The Oregon Court of Appeals affirmed the lower
court’s decision without opinion, McMaster v. Nooth, 260 Or. App.
782, 325 P.3d 69 (2014), and the Oregon Supreme Court dismissed
the Petition for Review as untimely.
Respondent’s Exhibits 133-
137.
Petitioner filed this federal habeas corpus case on February
5, 2015 and, with the assistance of appointed counsel, filed an
Amended Petition on July 7, 2015 in which he raises the following
grounds for relief:
Ground 1(A):
Counsel
failed
to
perform
effectively
with
regard
to
sentencing,
including failing to clarify the scope of the
plea agreement and to clarify and/or preserve
arguments about: the gridblock applicable to
each
count,
including
the
appropriate
criminal
history
for
each
count;
the
presumptive and maximum sentences; the merger
of counts; whether the case involved a single
criminal episode, whether there was a basis
for the imposition of consecutive sentences;
and the maximum possible sentence upon
revocation of probation;
Ground 1(B):
Counsel
failed
to
perform
effectively with regard to the probation
violation sanction hearing, including failing
to object to the probation violation sanction
on various available state-law grounds,
including, but not limited to, arguing that
the term imposed was illegal under Oregon
law, including but not limited to, Oregon’s
200% rule and Oregon law regarding the
reconstitution of criminal history and the
imposition of consecutive sentences.
Ground Two:
effectively
Appellate
pursue
a
5 – OPINION AND ORDER
counsel failed to
challenge
to
the
legality of petitioner’s probation violation
sanction on appeal.
Amended Petition (#14), pp. 4-5.
Respondent initially raised procedural default arguments as
to petitioner’s claims, but agreed to waive those arguments in
the Joint Stipulation Agreement (#48) filed by the parties on
August 17, 2016.
Respondent now asks the court to deny relief
on the Amended Petition because: (1) petitioner fails to meet his
burden of proof on his unargued claims; and (2) the PCR court
reasonably
denied
petitioner’s
argued
claim
of
ineffective
assistance of counsel pertaining to the imposition of the 132month probation revocation sanction.
DISCUSSION
I.
Standard of Review
An application for a writ of habeas corpus shall not be
granted unless adjudication of the claim in state court resulted
in
a
decision
that
was:
(1)
"contrary
to,
or
involved
an
unreasonable application of, clearly established Federal law, as
determined
by
the
Supreme
Court
of
the
United
States;"
or
(2) "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding."
U.S.C. § 2254(d).
28
A state court decision is "contrary to . . .
clearly established precedent if the state court applies a rule
that contradicts the governing law set forth in [the U.S. Supreme
Court's] cases" or "if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the
U.S.
Supreme]
Court
and
6 – OPINION AND ORDER
nevertheless
arrives
at
a
result
different
from
[that]
precedent."
Williams
v.
Taylor,
529
U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause of § 2254(d)(1),
a federal habeas court may grant relief "if the state court
identifies the correct governing legal principle from [the U.S.
Supreme
Court's]
decisions
but
unreasonably
principle to the facts of the prisoner's case."
"unreasonable
application"
clause
requires
applies
that
Id at 413.
the
state
decision to be more than incorrect or erroneous.
The
court
Id at 410.
Section 2254(d) "preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree
that the state court's decision conflicts with [the Supreme]
Court's precedents.
It goes no farther."
Harrington v. Richter,
562 U.S. 86, 102 (2011).
Section 2254(d)(2) allows a petitioner to “challenge the
substance of the state court’s findings and attempt to show that
those findings were not supported by substantial evidence in the
state court record.”
(9th Cir. 2012).
court
decision
Hibbler v. Benedetti, 693 F.3d 1140, 1146
A federal habeas court cannot overturn a state
on
factual
grounds
unless
the
decision
was
“objectively unreasonable in light of the evidence presented in
the state-court proceeding.”
322, 340 (2003).
Miller-El v. Cockrell, 537 U.S.
This is a “‘daunting standard—one that will be
satisfied in relatively few cases,’ especially because we must be
‘particularly
deferential
to
our
state-court
colleagues.’”
Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
7 – OPINION AND ORDER
II.
Unargued Claims
In his Amended Petition, petitioner raises two grounds for
relief
containing
various
sub-claims.
In
his
supporting
memorandum, however, petitioner chooses to brief a single claim:
whether counsel provided ineffective assistance when he failed to
object to the imposition of the 132-month sentence where the term
violated Oregon law governing the: (1) reconstitution of his
criminal
history;
(2)
imposition
of
consecutive
(3) 200% rule; and (4) “shift-to-I” rule.2
sentences;
Where petitioner does
not argue the merits of his remaining claims, he has not carried
his burden of proof with respect to the unargued claims.
See
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (petitioner
bears the burden of proving his claims).
III. Ineffective Assistance of Counsel
As outlined above, petitioner believes
appointed counsel
could have objected to the imposition of the 132-month probation
violation sanction on a number of bases under Oregon law.
He
asserts that he is entitled to habeas relief pursuant to 28
U.S.C. § 2254(d)(2) because the PCR court erred in its factual
finding that he stipulated to the sentence, and further claims
that habeas relief is appropriate under § 2254(d)(1) because the
PCR court’s decision on his ineffective assistance of counsel
claim involved an unreasonable application of clearly established
federal law.
2
These claims corresponds to Ground 1(B) of the Amended Petition wherein
petitioner challenges attorney conduct during his probation violation sanction
hearing.
8 – OPINION AND ORDER
Because no Supreme Court precedent is directly on point that
corresponds to the facts of this case, the court uses the general
two-part
test
established
by
the
Supreme
Court
to
determine
whether petitioner received ineffective assistance of counsel.
Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009).
First,
petitioner must show that his counsel's performance fell below an
objective standard of reasonableness.
466
U.S.
668,
686-87
(1984).
Strickland v. Washington,
Due
to
the
difficulties
in
evaluating counsel's performance, courts must indulge a strong
presumption that the conduct falls within the "wide range of
reasonable professional assistance."
Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced the defense.
The appropriate test for prejudice is
whether the petitioner can show "that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Id at 694.
A reasonable probability is one that is sufficient to undermine
confidence
in
the
outcome
of
the
trial.
Id
at
696.
When
Strickland's general standard is combined with the standard of
review governing 28 U.S.C. § 2254 habeas corpus cases, the result
is a "doubly deferential judicial review."
Mirzayance, 556 U.S.
at 122.
Petitioner asserts that the trial court imposed an illegal
132-month sentence at his probation revocation proceeding under
the mistaken impression that the State and defense counsel had
stipulated to that sentence.
He believes that if counsel had
objected, there is a reasonable probability the court would have
9 – OPINION AND ORDER
understood it was not bound to the 132-month sentence and imposed
a lesser sentence.
The PCR court rejected this claim finding
that petitioner did, in fact, stipulate to his sentence, and that
he received a benefit for this stipulation insofar as: (1) all of
his charges were reduced so as to take them out of Oregon’s
mandatory
minimum
sentencing
scheme;
and
downward departure sentence of probation.
(2)
he
received
a
Respondent’s Exhibit
126, p. 1.
Petitioner
regarding
the
asserts
that
stipulation
the
is
PCR
court’s
unreasonable.
factual
He
finding
claims
that
neither the Plea Petition nor the plea colloquy specifically
identified what his sentence would be in the event of a probation
revocation,
and
that
that
the
original
sentence
was
simply
referred to as a downward departure to a probationary sentence of
ten years.
He asserts that where the record was silent as to
what would occur were the court to revoke his probation, the PCR
court erred when it determined that the parties had stipulated to
a 132-month sanction.
As noted in the Background of this Opinion, the 132-month
sentence was written into the Plea Petition, even if it did not
specifically
petitioner
say
would
that
the
serve
figure
if
Respondent’s Exhibit 105, p. 3.
he
represented
violated
the
his
sentence
probation.
Construing the 132-month figure
as a probation sanction is a reasonable reading of the Plea
Petition where petitioner was released to probation on the day of
his sentencing and obviously was not obligated to immediately
serve the 132-month sentence.
10 – OPINION AND ORDER
In addition, at his sentencing hearing following the entry
of
his
pleas,
the
prosecutor
stated
on
the
record
that
the
“agreement is basically, it is a stipulated downward departure
with
132
months
of
Department
of
Corrections’
suspended if he were to be revoked on probation.
time
be
He’d be going
to the Department of Corrections for 132 months.”
Exhibit 108, p. 4.
to
Respondent’s
Neither petitioner not his attorney objected
to this representation, and defense counsel advised the court
during that same proceeding “that if he does not follow through
on the conditions of probation . . . he will be revoked and go to
prison for a very long time.”
Id at 14.
During petitioner’s probation revocation hearing in 2009,
the prosecutor asked the court to impose a 132-month prison
sentence because petitioner “agreed with these sentences as, ah,
a
condition
11. . . .”
of
the
State
taking
the
case
Respondent’s Exhibit 109, p. 7.
out
of
Measure
The Judge listened
to the audio recordings of the plea and sentencing hearings and
concluded, “I am convinced that from listening to the record it
was 132 months.
It was certainly the expected result. . . .”
Id
at 39.
Based upon this record, the PCR court reasonably concluded
that
petitioner
stipulated
to
condition to his plea agreement.
the
132-month
sentence
as
a
Where petitioner stipulated to
the sentence, he could not later take issue with its imposition
following the revocation of his probation.
See State v. Ivie,
213 Or. App. 198, 201, 159 P.3d 1257 (2007) (stipulated sentences
may exceed the applicable statutory scheme and are generally not
11 – OPINION AND ORDER
reviewable on appeal).
Counsel was therefore under no obligation
to object to the imposition of the agreed-upon sanction, thus his
performance
did
reasonableness.
not
fall
below
an
objective
standard
of
For these reasons, petitioner is not entitled to
habeas corpus relief under either § 2254(d)(1) or § 2254(d)(2).
CONCLUSION
For the reasons identified above, the Amended Petition for
Writ of Habeas Corpus (#14) is DENIED.
The court declines to
issue a Certificate of Appealability on the basis that petitioner
has
not
made
a
substantial
showing
of
the
denial
of
a
constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 4th day of November, 2016.
/s/ Michael H. Simon______________
Michael H. Simon
United States District Judge
12 – OPINION AND ORDER
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