IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KEVIN MITCHELL BUMGARNER, 

Petitioner, 

v. 

MARK NOOTH, 

Respondent. 

Jay W. Frank 

Moule & Frank 

259 E. 5th Avenue 

Eugene, Oregon 97401, 

Attorney for Petitioner 

Case No. 2:14-cv-01269-MO 

OPINION AND ORDER 

Ellen F. Rosenblum, Attorney General 

Frederick M. Boss, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 2:14-cv-01269-MO Document 23 Filed 06/15/15 Page 1 of 10
MOSMAN, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his state-court 

convictions for Sexual Abuse, Rape, Unlawful Sexual Penetration, 

Kidnapping, and Assault. Because the court finds petitioner's 

claims to be procedurally defaulted, the Petition for Writ of 

Habeas Corpus (#1) is denied. 

BACKGROUND 

On August 21, 2003, the Douglas County Grand Jury indicted 

petitioner on eleven sex crimes involving a four-year-old girl. A 

jury ultimately convicted petitioner of two counts each of Sexual 

Abuse in the First Degree, Rape in the First Degree, Unlawful 

Sexual Penetration with a Foreign Object in the First Degree, and 

Kidnapping in the First Degree. Trial Transcript, p. 1584. The 

jury also convicted petitioner of a single count of Assault in the 

Third Degree. Id. As a result, the trial court sentenced him to 

730 months in prison. Trial Transcript, p. 1623. 

Petitioner took a direct appeal, and the Oregon Court of 

Appeals initially remanded the case for resentencing on the basis 

that the trial court had erred by imposing consecutive sentences 

without the proper factual findings from the jury. Respondent's 

Exhibit 108. However, after the U.S. Supreme Court's decision in 

Oregon v. Ice, 129 S.Ct. 711 (2009) wherein it reaffirmed the 

authority of courts to impose consecutive sentences in the absence 

2 - OPINION AND ORDER 

Case 2:14-cv-01269-MO Document 23 Filed 06/15/15 Page 2 of 10
of specific findings by a jury, the Oregon Court of Appeals 

withdrew it's initial disposition and modified its decision to 

affirm petitioner's sentence. Respondent's Exhibit 114. 

Petitioner next filed for post-conviction relief ("PCR") in 

Malheur County where the PCR trial court granted relief, finding 

that trial counsel should have argued for merger of petitioner's 

convictions. Respondent's Exhibit 141. The PCR trial court denied 

relief on the remainder of petitioner's convictions. Id. The 

Oregon Court of Appeals affirmed the PCR trial court's decision in 

a written opinion. Respondent's Exhibit 150. Neither party sought 

review by the Oregon Supreme Court. 

It appears petitioner's case was then remanded for a 

resentencing proceeding that is not part of the record before this 

court. Respondent's Exhibit 141. Following that resentencing, on 

August 26, 2013, petitioner filed a Motion for New Trial on the 

basis that the leg brace he was required to wear during his 2003 

trial prevented him from having a fair trial. Petition Exhibit 

1-2, p. 24. The trial judge denied the motion, finding it to be 

untimely and not properly before the court. Id at 1. 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus action on 

August 6, 2014. In his Petition, he presents the following grounds 

for relief: 

1. Petitioner's physical restraint at his 

jury trial without prior evidence that 

would have permitted the trial court to 

find that petitioner posed an immediate 

3 - OPINION AND ORDER 

Case 2:14-cv-01269-MO Document 23 Filed 06/15/15 Page 3 of 10
or serious risk of committing dangerous 

or disruptive behavior, or that 

petitioner posed a serious risk of 

escape, and without any prior finding, 

violated petitioner's right to Due 

Process under the Fifth and Fourteenth 

Amendments to the Constitution of the 

United States. 

2. Ineffective assistance of counsel by 

petitioner's attorneys at trial, on 

appeal, during post-conviction 

proceedings, and during proceedings on 

his motion for a new trial prevented 

petitioner from properly raising or 

exhausting the issue set out above as 

Ground One. 

Petition (#1), pp. 8-11. 

Respondent asks the court to deny relief on the Petition 

because: (1) petitioner failed to fairly present Grounds One and 

Two to the Oregon state courts, leaving them procedurally 

defaulted; (2) to the extent petitioner fairly presented his Ground 

One due process claim, the state court denied relief based upon an 

independent and adequate state procedural rule such that the claim 

is not eligible for federal review; and (3) Ground Two alleges 

freestanding claims of ineffective assistance of counsel that are 

not subject to habeas corpus review. 

DISCUSSION 

I. Exhaustion and Procedural Default Standards 

A habeas petitioner must exhaust his claims by fairly 

presenting them to the state's highest court, either through a 

direct appeal or collateral proceedings, before a federal court 

4 - OPINION AND ORDER 

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will consider the merits of those claims. Rose v. Lundy, 455 U.S. 

509, 519 (1982). ''As a general rule, a petitioner satisfies the 

exhaustion requirement by fairly presenting the federal claim to 

the appropriate state courts . . in the manner required by the 

state courts, thereby 'affording the state courts a meaningful 

opportunity to consider allegations of legal error.''' Casey v. 

Moore, 386 F. 3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. 

Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed 

to present his claims to the state courts in a procedural context 

in which the merits of the claims were actually considered, the 

claims have not been fairly presented to the state courts and are 

therefore not eligible for federal habeas corpus review. Edwards 

v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 

U.S. 346, 351 (1989). 

A petitioner is deemed to have "procedurally defaulted'' his 

claim if he failed to comply with a state procedural rule, or 

failed to raise the claim at the state level at all. Edwards v. 

Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 

722, 750 (1991). If a petitioner has procedurally defaulted a 

claim in state court, a federal court will not review the claim 

unless the petitioner shows ''cause and prejudice'' for the failure 

to present the constitutional issue to the state court, or makes a 

colorable showing of actual innocence. Gray v. Netherland, 518 

5 - OPINION AND ORDER 

Case 2:14-cv-01269-MO Document 23 Filed 06/15/15 Page 5 of 10
U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); 

Murray v. Carrier, 477 U.S. 478, 485 (1986). 

II. Analysis 

A. Ground One: Due Process 

As Ground One, petitioner alleges that the court's requirement 

that he wear a leg restraint during his jury trial violated his 

right to due process. It is clear from the record that petitioner 

did not raise his claim during his direct appeal. Respondent's 

Exhibit 103. Petitioner argues, however, that he presented the due 

process claim to the Douglas County Circuit Court in his Motion for 

New Trial, which he filed after entry of the Amended Judgment in 

2013. He claims that because an appeal was not permitted from the 

Douglas County Circuit Court's denial of his Motion, he was not 

obligated to present his claim to the Oregon Supreme Court in order 

to fairly present it. 

Petitioner's Motion seeking a new trial came approximately 

nine years after the conclusion of his criminal trial. Not only 

was the Motion for New Trial not the method contemplated by Oregon 

law for petitioner to raise his due process claim of trial court 

error, 1 but the Douglas County Circuit Court specifically denied 

See Guinn v. Cupp, 304 Or. 488, 497, 747 P.2d 984 (1987) 

(where the record shows that a defendant was shackled, the record 

is sufficient for the issue to be raised on direct appeal); see 

also State v. Alvarez-Vega, 240 Or. App. 616, 618 n. 1 (2011) 

("we do not wish to leave the impression that a motion for a new 

trial based on alleged error in the trial proceedings may be 

6 - OPINION AND ORDER 

Case 2:14-cv-01269-MO Document 23 Filed 06/15/15 Page 6 of 10
petitioner's Motion as untimely and not properly before the court. 

In this respect, petitioner's claim is subject to the procedural 

default bar because for two reasons: ( 1) he failed to fairly 

present it in an appropriate procedural context; and (2) the state 

court expressly rejected petitioner's claim based upon a state 

procedural rule independent of federal law, and adequate to support 

the decision. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). 

Petitioner contends that there is no evidence that the Oregon 

Rules of Civil Procedure employed to reject his Motion as untimely 

were firmly established and regularly followed, thus the Douglas 

County Circuit Court did not rely upon an independent and adequate 

state procedural rule to bar his claim. See Ford v. Georgia, 498 

U.S. 411, 424 (1991) (a state procedural rule constitutes an 

adequate bar to federal court review if it was "firmly established 

and regularly followed" at the time it was applied by the state 

court) . Petitioner's conclusory contention is insufficient to show 

that the state procedural rules are not firmly established and 

regularly followed. See Bennett v. Mueller, 322 F.3d 573, 586 (9'h 

Cir. 2003) (petitioner must make "specific factual allegations that 

demonstrate the inadequacy of the state procedural rule, including 

citations to authorities demonstrating inconsistent application of 

timely filed after a resentencing following remand on appeal. 

See ORCP 64 F. ") . 

7 - OPINION AND ORDER 

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the rule."). Because petitioner fails to carry his burden, he is 

unable to excuse his procedural default. 

Although petitioner also argues that his Motion was timely 

under Oregon law, this assertion amounts to a disagreement with a 

state court over an issue of state law. Such issues are not 

reviewable in the habeas corpus context. Estelle v. McGuire, 502 

U.S. 62, 67-68 (1991) ("[W)e reemphasize that it is not the 

province of a federal habeas court to reexamine state-court 

determinations on state-law questions."). 

In his Ground Two claim, petitioner offers (but does not 

argue) what might be considered another excuse for his procedural 

default, namely that his PCR attorney "did not make a claim in the 

petition for post-conviction relief on the basis of the 

unconstitutional restraining of petitioner during his jury 

trial. " Petition (#1), p. 10. Pursuant to Martinez v. 

Ryan, 566 U.S. ----, 132 S.Ct. 1309 (2012), inadequate assistance 

from a PCR trial attorney can establish cause to excuse a 

procedural default. However, this excuse to procedural default 

applies only to claims of ineffective assistance of trial and 

direct appellate counsel, not due process claims. Id at 1315; 

Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013) (extending 

Martinez to direct appellate counsel). For all of these reasons, 

petitioner's Ground One claim is procedurally defaulted, and the 

default is not excused. 

8 - OPINION AND ORDER 

Case 2:14-cv-01269-MO Document 23 Filed 06/15/15 Page 8 of 10
B. Ground Two: Ineffective Assistance of Counsel 

In Ground Two, petitioner alleges that his attorneys during 

his trial, direct appeal, PCR proceedings, and Motion for New Trial 

all rendered ineffective assistance when they failed to raise his 

due process claim or, in the case of PCR counsel, when they failed 

to raise ineffective assistance of counsel claims predicated on the 

due process claim. 2 Respondent contends that petitioner failed to 

fairly present all of these claims to the state courts, and they 

are now procedurally defaulted. He also asserts that the claims 

pertaining to PCR counsel and counsel on the Motion for New Trial 

are not cognizable in a federal habeas proceeding. 

Petitioner does not support his Ground Two claims with any 

briefing, nor does he address respondent's arguments as to why 

relief should be denied on these claims. In this respect, 

petitioner fails to sustain his burden of proof on these claims. 

See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) 

(petitioner bears the burden of proving his claims). Accordingly, 

petitioner is not entitled to habeas corpus relief on these claims. 

CONCLUSION 

For the reasons identified above, the Petition for Writ of 

Habeas Corpus ( #1) is denied. The court declines to issue a 

Certificate of Appealability on the basis that petitioner has not 

2 In this respect, the court does not view petitioner as 

raising freestanding claims of ineffective assistance of counsel 

as the State argues. 

9 - OPINION AND ORDER 

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made a substantial showing of the denial of a constitutional right 

pursuant to 28 U.S.C. § 2253(c) (2). 

10 - OPINION AND ORDER 

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