UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARREN HOGUE, 

Petitioner-Appellant, 

 v. 

MARK NOOTH, 

Respondent-Appellee.

No. 17-35393 

D.C. No. 2:12-cv-02300-CL 

District of Oregon,

Pendleton

ORDER

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,* District 

Judge.

The panel has voted to deny Petitioner-Appellant’s petition for panel 

rehearing. Judges Wardlaw and Owens have voted to deny Petitioner-Appellant’s

petition for rehearing en banc, and Judge Márquez has so recommended.

The full court has been advised of the petition for rehearing en banc, and no 

judge of the court has requested a vote on it.

The panel has voted to amend the memorandum disposition filed on July 11, 

2018. The superseding amended memorandum disposition will be filed 

concurrently with this order. 

The petitions for panel rehearing and for rehearing en banc are denied. No 

 

* The Honorable Rosemary Márquez, United States District Judge for 

the District of Arizona, sitting by designation.

FILED

SEP 7 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

further petitions for rehearing or petitions for rehearing en banc will be entertained.
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARREN HOGUE, 

Petitioner-Appellant, 

 v. 

MARK NOOTH, 

Respondent-Appellee.

No. 17-35393 

D.C. No. 2:12-cv-02300-CL 

AMENDED MEMORANDUM*

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 MÁRQUEZ,

*** 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 Márquez, United States District Judge for 

the District of Arizona, sitting by designation.

FILED

SEP 7 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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: even 

if contrary to clearly established federal law, the PCR court’s application of the 
3 

due-process “voluntary and knowing” test indicates that it sought to render a 

judgment on petitioner’s claim based on “the intrinsic rights and wrongs of [the]

case as determined by matters of substance, in distinction from matters of form.” 

Johnson, 568 U.S. at 302 (emphasis and alteration removed) (quoting Black’s Law 

Dictionary 1199 (9th ed. 2009)).

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 waived 

any argument that he has overcome that provision. See Avila v. L.A. Police Dep’t, 
4 

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

Petitioner raises Lafler v. Cooper, 566 U.S. 156, 172–73 (2012), for the first 

time in his petition for rehearing or rehearing en banc. Under longstanding circuit 

precedent, petitioner’s reliance on that case is waived “because at no point in this 

litigation until the petition for rehearing did [he] argue that we should apply 

[Lafler], or even consider it.” Picazo v. Alameida, 366 F.3d 971, 971–72 (9th Cir. 

2004); see also, e.g., Fields v. Palmdale Sch. Dist., 447 F.3d 1187, 1190 (9th Cir. 

2006) (per curiam) (“We do not consider on rehearing new issues previously not 

raised, briefed or argued.”).

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

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.