UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DAVID ALAN MOONEYHAM, 

 

 Petitioner, 2:14-cv-01046-AA 

 

 v. 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.

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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. The 

Oregon Court of Appeals affirmed without opinion and the 

Oregon Supreme Court denied review. Exhibits 132 - 137. 

Petitioner filed a petition under 28 U.S.C. § 2254 

alleging four claims for relief. 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. Response to Petition (#12) p. 2. Respondent also 

argues that petitioner's claims should be 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[.]" Exhaustion occurs when a petitioner has given the 

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state courts a "full and fair" opportunity to consider and 

resolve all federal claims. Keeney v. Tomayo-Reyes, 504 U.S. 

1, 10 (1992). 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) and can no longer do so 

because of a procedural bar, that claim is procedurally 

defaulted. Boerckel, 526 U.S. at 848, citing Coleman v. 

Thompson, 501 U.S. 722, 731-32 (1991). 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, and ( 2) actual prejudice from the 

failure. Edwards v. Carpenter, 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 (9~ Cir. 1986). 

Cause for a procedural default exists only if a 

petitioner can "show that some objective factor external to 

the defense impeded counsel's efforts to comply with the 

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

exists only if a petitioner shows that the procedural default 

"worked to [petitioner's] actual and substantial 

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disadvantage." United States v. Frady, 456 U.S. 152, 170 

(1982). 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, and 

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the time for presenting new claims is past, 1 the claims 

alleged in Ground Two - Four are 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 evidence presented at the state court 

proceedings." 28 U.S.C. § 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. 

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

involving materially indistinguishable facts." Pirtle v. 

Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (citing Bell v. 

Cone, 535 U.S. 685, 694). The Supreme Court has held that "a 

federal 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 of the United States. '" 

Williams v Taylor, supra at 391. 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 

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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 Strickland, 

supra at 688. The second component of the test requires the 

petitioner to demonstrate 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. 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] out of life sentence pursuant to [ORS 

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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 

presumptive life sentence " Exhibit 104, p. 2. After a 

lengthy colloquy, the trial court accepted the pleas and 

ultimately sentenced petitioner to the agreed upon term. Id. 

at 3-9; Exhibit 105, p. 3-6. 

In his post-conviction proceeding petitioner argued that 

he could not be subject to ORS 137. 719' s potential life 

sentence because, 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 could face 

sentencing under ORS 137.719. 

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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, it talks about 

when they were sentenced * * * 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 Balfour Brief. The Oregon 

Court of Appeals affirmed without opinion 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. 21-

22. 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 

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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. Petitioner avoided a life sentence 

through a plea agreement that he 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. Hill v. Lockhart, 474 U.S. 52, 56 (1985). 

When a plea is subsequently challenged in a collateral 

proceeding, a presumption of verity is given to the plea 

proceeding record. Blackridge v. Allison, 431 U.S. 73, 74 

( 1977) . 

In this case, the trial court engaged petitioner in a 

lengthy colloquy in order to ensure that the plea was 

petitioner's voluntary choice,. Exhibit 104, p. 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 knowing and 

voluntary, and intelligent, and that counsel's action in 

negotiating the plea to avoid a life sentence was reasonable 

and not ineffective assistance of counsel. 

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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£ Appea~abi~ity 

Shou~dpetitioner appea~, a certi£icate o£ appea~abi~ity 

is denied as petitioner has not made a substantia~ showing o£ 

the denia~ o£ a constitutiona~ right. See 28 U.S.C. § 

2253 (c) (2). 

DATED this of April, 2015. 

Ann Aiken 

United States District Judge 

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