IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSHUA C. SHARPE, 

Civil No. 2:14-cv-01014-PK 

Petitioner, 

FINDINGS AND RECOMMENDATION 

v. 

MARK NOOTH, Superintendent, 

Snake River Correctional Institution, 

Respondent. 

MICHELLE SWEET 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

SAMUEL A. KOBERNICK 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

1 - FINDINGS AND RECOMMENDATION -

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PAPAK, Magistrate Judge. 

Petitioner, an inmate at the Snake River Correctional 

Institution, brings this habeas corpus action pursuant to 28 

U.S.C. § 2254. For the reasons that follow, the Amended Petition 

for Writ of Habeas Corpus should be DENIED, and Judgment should be 

entered dismissing this action with prejudice. 

PROCEDURAL BACKGROUND 

In April 2010, a Lane County grand jury indicted Petitioner 

on 37 separate counts, including offenses of Identity Theft, Theft 

in the First Degree, Burglary in the Second Degree, and Felon in 

Possession of a Firearm. The charges arose from a series of 

robberies and identity thefts Petitioner committed in December 

2009 and January 2010. Petitioner ultimately pleaded guilty to 

all of the charged offenses and agreed to a 20-year term of 

imprisonment. 

Petitioner did not directly appeal from the judgment of 

conviction or sentence. Petitioner did seek state post-conviction 

relief (''PCR"), asserting several claims of ineffective assistance 

of trial counsel. Following an evidentiary hearing, the PCR trial 

court denied relief. Resp. Exh. 125. Petitioner appealed, but 

the Oregon Court of Appeals granted the state's motion for summary 

affirmance. Resp. Exh. 131. The Oregon Supreme Court denied 

review. Resp. Exh. 130. 

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On June 23, 2014, Petitioner file a pro se Petition for Writ 

of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Counsel was 

appointed to represent Petitioner, and currently before the Court 

is Petitioner's Amended Pe ti ti on for Writ of Habeas Corpus. 

Petitioner alleges two claims for relief: 

Ground One: [ Petitioner) was denied effective 

assistance of counsel under the Sixth and Fourteenth 

Amendments to the United States Constitution when his 

trial attorney failed to ensure that his guilty plea was 

knowing, intelligent and voluntary. [Petitioner's) 

trial attorney effectively forced [Petitioner) to plead 

guilty because counsel failed to prepare for trial: he 

failed to interview key witnesses; failed to 

investigate; failed to find and hire appropriate 

experts; failed to adequately review the discovery or 

provide [Petitioner) with all of his discovery; failed 

to adequately pursue motions, including a motion to 

suppress evidence; failed to explain the nature of the 

charges; failed to properly advise [Petitioner] 

regarding the potential outcome at trial; and failed to 

provide [Petitioner] adequate and accurate information 

regarding the potential sentence he could face if he 

went to trial. In addition, trial counsel did not allow 

[Petitioner) enough time to consider the plea offer or 

explain the consequences of the plea offer. The guilty 

plea was effectively coerced and had [Petitioner) 

received effective assistance of counsel he would have 

proceeded to trial. 

Ground Two: [Petitioner] was denied effective 

assistance of counsel under the Sixth and Fourteenth 

Amendments to the United States Constitution when his 

trial attorney failed to ensure that his waiver of 

appeal and and collateral remedies was knowing, 

intelligent and voluntary. The guilty plea and waivers 

were effectively coerced. 

In his counseled Brief in Support, Petitioner addresses only 

the claim alleged in Ground One that his Sixth Amendment right to 

effective assistance of counsel was violated when his trial 

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attorney failed to ensure that his guilty plea was knowing, 

intelligent, and voluntary. Respondent argues the state PCR trial 

court's denial of relief on this claim was not objectively 

unreasonable, and is entitled to deference in this Court. 

Respondent further argues that Pe ti ti oner failed to meet his 

burden of proof on the claim alleged in Ground Two which was not 

addressed in his Brief in Support. 

DISCUSSION 

I. Unargued Claim 

As noted, Petitioner does not provide argument to support the 

merits of the claim alleged in his second ground for relief. A 

petitioner seeking federal habeas relief bears the burden of 

showing the court he is entitled to relief. Woodford v. 

Visciotti, 537 U.S. 19, 24 (2002); Davis v. Woodford, 384 F.3d 

628, 638 (9th Cir. 2004), cert. dismissed, 545 U.S. 1165 (2005). 

Pursuant to 28 U.S.C. § 2248, "[t]he allegations of a return to 

the writ of habeas corpus or of an answer to an order to show 

cause in a habeas corpus proceeding, if not traversed, shall be 

accepted as true expect to the extent that the judge finds from 

the evidence that they are not true." 

The Court has reviewed the record and finds Petitioner has 

not met his burden of showing he is entitled to relief on the 

claim alleged in Ground Two. The Court's review of the state 

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proceedings confirms that Petitioner procedurally defaulted this 

claim, and that there is no evidence of cause and prejudice or a 

fundamental miscarriage of justice to excuse the procedural 

default. 

II. Merits 

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) was 

"based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding.'' 28 U.S.C. 

§ 2254 (d) . The state court's findings of fact are presumed 

correct, and a petitioner bears the burden of rebut ting the 

presumption of correctness by clear and convincing evidence. 28 

U.S.C. § 2254 (e) (1). 

A state court acts "contrary to" clearly-established federal 

law if it arrives at a conclusion opposite to that reached by the 

Supreme Court on 

differently than 

a question of law or if it decides a case 

the 

indistinguishable facts. 

Supreme Court on a set of materially 

Williams v. Taylor, 529 U.S. 362, 405-06 

(2000) . A state court decision is an "unreasonable application" 

of clearly-established federal law if the court: (1) identifies 

the correct governing legal principle from Supreme Court 

5 - FINDINGS AND RECOMMENDATION -

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decisions, but unreasonably applies that principle to the facts of 

the prisoner's case; or (2) either unreasonably refuses to extend 

the governing legal principle or unreasonably extends it to a new 

context where it should not apply. Id. at 407, 413. Under this 

standard of review, a federal court may not issue a writ of habeas 

corpus because it concludes the state court applied 

clearly-established federal law erroneously or incorrectly; the 

state court decision must be "objectively unreasonable." Lockyer 

v. Andrade, 538 U.S. 63, 75 (2003). 

A claim of ineffective assistance of counsel requires the 

petitioner to prove that counsel's performance was deficient, and 

that there is a reasonable probability that, but for counsel's 

errors, the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 687-88 (1987); Bell v. 

Cone, 535 U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91. If 

there is a failure of proof on either prong, habeas relief is not 

warranted. Murray v. Schriro, 746 F.3d 418, 457 (9th Cir. 2014). 

Strickland applies to ineffective assistance claims arising 

out of the plea process. Hill v. Lockhart, 

(1985). In order to establish prejudice in 

474 U.S. 52, 57 

the guilty plea 

context, petitioner must show a reasonable probability that, but 

for counsel's errors, he would not have pleaded guilty and would 

have insisted on going to trial. Hibbler v. Benedetti, 693 F.3d 

6 - FINDINGS AND RECOMMENDATION -

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1140, 1150 (9th Cir. 2012), cert. denied, 133 S. Ct. 1262 (2013); 

Doe v. Woodford, 508 F.3d 563, 568 (9th Cir. 2007); Hill, 474 U.S. 

at 59. 

Because "plea bargains are the result of complex negotiations 

suffused with uncertainty, and defense attorneys must make careful 

strategic choices in balancing opportunities and risks,'' strict 

adherence to the deferential Strickland standard is ''all the more 

essential when reviewing the choices an attorney made at the plea 

bargain stage." Premo v. Moore, 562 U.S. 115, 124 (2011). The 

issue is not whether this court believes the state court's 

determination under Strickland was incorrect, but whether that 

determination was unreasonable, a substantially higher threshold. 

Knowles v. Mirzayance, 556 U.S. 111, 123-24 (2009); Hibbler v. 

Benedetti, 693 F.3d at 1146. 

Petitioner argues that he was denied effective assistance of 

trial counsel when his attorney failed to adequately certify that 

his guilty plea was knowing, voluntary, and intelligent. 

Petitioner contends he was effectively "coerced" into pleading 

guilty because he believed his attorney was unprepared for trial 

and because Petitioner had inadequate time to consider the plea 

offer, which was made the morning Petitioner's case was set for 

trial. 

7 - FINDINGS AND RECOMMENDATION -

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At the plea hearing, the criminal trial judge engaged in an 

extensive colloquy with Petitioner about his understanding of the 

plea agreement, his understanding of the sentence the parties had 

agreed to, and his understanding of the rights he was waiving by 

pleading guilty. Resp. Exh. 104, pp. 5-12. Specifically, the 

trial judge asked Petitioner whether he had read the plea 

petition, whether he understood its terms, and whether he had had 

enough time to discuss the terms with his trial attorney prior to 

signing. Resp. Exh. 104, pp. 4-5. Petitioner responded "yes," to 

all of those questions. Resp. Exh. 104, pp. 4-5. 

The trial judge then asked Petitioner whether he was 

satisfied with his trial attorney's representation, to which 

Petitioner initially responded ''not really, no.'' Resp. Exh. 104, 

p. 8. Petitioner explained that, while he had agreed to the plea, 

he was not satisfied with his attorney's representation. Resp. 

Exh. 104, p. 9. The trial judge questioned Petitioner further on 

the issue, asking him whether was satisfied that counsel had 

answered all of Petitioner's questions and had explained to 

Petitioner, sufficiently, the options and the ramifications of 

Petitioner's conduct. Resp. Exh. 104, p. 9. Petitioner agreed 

that counsel had done so, and that counsel had done a ''fine'' job 

of handling his case. Resp. Exh. 104, pp. 9-10. The trial judge 

ultimately found that Petitioner's agreement to enter guilty pleas 

was being made knowingly and voluntarily. Resp. Exh. 104, p. 25. 

8 - FINDINGS AND RECOMMENDATION -

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In an affidavit submitted by Petitioner's trial counsel in 

the PCR proceedings, counsel averred that all plea offers were 

fully discussed with Petitioner, and as much time as possible was 

given to him to make decisions as to whether to accept an offer. 

Resp. Exh. 118, p. 5. Counsel also described the extensive plea 

negotiations which had occurred: Petitioner was give five 

different settlement offers between March 1 and April 26, the date 

the case was set for trial. Resp. Exh. 118, p. 4. Finally, on 

April 26, the date set for trial, the state offered 20 years with 

eligibility for good-time credit, which Petitioner accepted. 

Resp. Exh. 118, p. 5. Counsel noted that although Petitioner may 

not have had a lot of time to consider the last offer the state 

made on the day scheduled for trial, counsel fully explained the 

offer to Petitioner and informed Petitioner of his options and the 

potential consequences of the various options. 1 Resp. Exh. 118, 

p. 5. 

Trial counsel's affidavit also outlined the extensive 

investigation undertaken in preparation for Petitioner's trial, 

including numerous meetings with Petitioner and separately with an 

investigator (who himself spent a large amount of time on the 

1

Along with his affidavit, trial counsel submitted a copy of 

a lengthy letter he had written to Petitioner in March 2010 which 

explained the charges against him, the state's settlement offers, 

and the sentencing exposure Petitioner faced if convicted of some 

or all of the charges. Resp. Exh. 133. 

9 - FINDINGS AND RECOMMENDATION -

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case), and the retention of two forensic experts. Resp. Exh. 118, 

p. 4. According to counsel, he was "fully prepared'' to go to 

trial if petitioner had elected to reject the final plea offer 

made by the state. Resp. Exh. 115, p. 5. 

In contrast, Petitioner submitted no evidence to the PCR 

trial court in support of his claim that counsel was not prepared 

for trial. Petitioner simply made vague allegations of counsel's 

alleged lack of readiness, and although Petitioner stated in his 

declaration to the PCR court that the "lack of a DNA specialist, 

a necessary part of our defense, is but one example of the lack of 

preparation" he did not, however, submit any evidence to show what 

benefit a DNA expert would have provided to his defense. Resp. 

Exh . 111, p . 2 . 

The PCR trial judge rejected Petitioner's claim of 

ineffective assistance, finding as follows: 

Petitioner failed to prove any of the claims set forth 

in his petition. 

1. The affidavit of trial counsel and the transcript 

of the plea hearing demonstrates (sic] that the 

entry of guilty plea pursuant to a plea agreement 

was knowingly, intelligently and voluntarily 

entered. The Pe ti ti oner received a substantial 

benefit from the plea agreement in form of the 

agreement to limit the sentence to 20 years in 

prison and the agreement of the state not to file 

additional significant charges. Petitioner 

repeatedly advised the trial judge that he was 

satisfied with his attorney's performance, that he 

understood the terms of the plea agreement and that 

he had adequate time to confer with his attorney 

about the plea agreement. The final plea agreement 

10 - FINDINGS AND RECOMMENDATION -

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which Petitioner accepted was not the first offer 

but was the conclusion of a lengthy plea 

negotiations as set forth in Exhibit 104. The 

attached letter to Exhibit 104 shows the length to 

which the trial attorney went to keep Petitioner 

advised of his options. 

* * * 

3. There is no credible evidence to support the claim 

that the trial attorney failed to adequately 

investigate the case. The affidavit of [trial 

counsel] is to the contrary and is more credible 

than the declaration of the Petitioner. There is 

no showing of new evidence that the trial attorney 

failed to discover or prepare that was likely to 

have changed the outcome of the case. 

* * * 

6. There is a lack of credible proof that the trial 

attorney failed to adhere to any ABA standards and 

that failure likely affected the outcome of his 

case. 

* * * 

8. There is not credible proof that the trial attorney 

knew of and failed to advise the Petitioner that 

the state had no evidence to support counts 7, 8. 

9, 10, 12, 13, 15, 16, 17' 18, 19, 21, 22, 24, 25, 

27, 28, and 33 of the indictment. The record 

indicates that there was ample evidence available 

to the state to secure a conviction on all of those 

counts. 

Resp. Exh. 125, pp. 1-3. 

Upon a review of the record, the PCR trial court's conclusion 

that trial counsel was not constitutionally deficient was not 

objectively unreasonable. Accordingly, the PCR trial court's 

decision that Petitioner was not denied the right to effective 

11 - FINDINGS AND RECOMMENDATION -

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assistance of counsel is neither contrary to, nor an unreasonable 

application of, clearly established law. 2 

RECOMMENDATION 

For these reasons, the Amended Petition for Writ of Habeas 

Corpus (#21) should be DENIED, and judgment should enter 

dismissing this case with prejudice. 

Because Petitioner has not made a substantial showing of the 

denial of a constitutional right, a certificate of appealability 

should be DENIED. See 28 U.S.C. § 2253(c) (2). 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a 

district judge. Objections, if any, are due fourteen (14) days 

from service of the Findings and Recommendation. If no objections 

are filed, then the Findings and Recommendation will go under 

advisement on that date. 

If objections are filed, then a response is due fourteen (14) 

days after being served with a copy of the objections. When the 

response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

2Having found counsel's performance was not deficient, the 

court need not address Strickland's prejudice requirement. Murray, 

746 F.3d at 457; see also Chapman v. Lampert, 371 Fed.Appx. 742, 

746 (9th Cir. 2010) (it is well established that failure to satisfy 

either prong of the Strickland test obviates the need to consider 

the other). 

12 - FINDINGS AND RECOMMENDATION -

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NOTICE 

A party's failure to timely file objections to any of these 

findings will be considered a waiver of that party's right to de 

nova consideration of the factual issues addressed herein and will 

constitute a waiver of the party's right to review of the findings 

of fact in any order or judgment entered by a district judge. 

These Findings and Recommendation are not immediately appealable 

to the Ninth Circuit Court of Appeals. Any notice of appeal 

pursuant to Rule 4 (a) ( 1) of the Federal Rules of Appellate 

Procedure should not be filed until entry of judgment. 

DATED 

{ ·.(~ . . .·~ 

this ~\day of ,rua~ , ?· 

/_..../(tA,Z . t , 1tK 

Paul Papqk 

United States Magistrate Judge 

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