IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ERNEST STEVEN FLORES, 

Petitioner, 

v. 

MARK NOOTH, Superintendent of 

Snake River Correctional Institution, 

Respondent. 

FRANCESCA FRECCERO 

Assistant Federal Public Defender 

10 I SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

KRISTEN E. BOYD 

Assistant Attorney General 

Depatiment of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

1 - FINDINGS AND RECOMMENDATION -

Civil No. 2: 14-cv-1415-AC 

FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 1 of 7
ACOSTA, Magistrate Judge. 

Petitioner, an inmate at the Snake River Conectional Institution, brings this habeas corpus 

action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas 

Corpus should be DENIED. 

BACKGROUND 

On January 10, 2010, a Multnomah County grand jury entered an indictment charging 

Petitioner with six counts of Sexual Abuse in the First Degree, and one count each of Criminal 

Mistreatment in the First Degree and Assault in the Third Degree. Resp. Exh. I 02. The parties 

negotiated a stipulated plea agreement whereby Petitioner agreed to plead guilty to two counts of 

Sexual Abuse in the First Degree and one count of Criminal Mistreatment in the First Degree, and 

the state agreed to dismiss the remaining counts. Resp. Exh. 103. The parties also stipulated to a 

mandatory Measure 11 sentence of 7 5 months on the first count of Sexual Abuse in the First 

Degree, a mandatory Measure 11 sentence of75 months on the second count of Sexual Abuse in 

the First Degree of 75 months (with 45 months of that sentence to run consecutively, and the 

remaining 33 months to run concurrently) and a concurrent sentence of36 months on the Criminal 

Mistreatment in the First Degree conviction. Resp. Exh. 103. Following an extensive plea 

colloquy with Petitioner, the trial judge accepted the plea and sentenced Petitioner as agreed. Resp. 

Exh. 104. 

Petitioner filed a direct appeal, but subsequently moved to voluntarily dismiss the appeal. 

Resp. Exh. 105. Petitioner then sought state post-conviction relief ("PCR"). Following an 

evidentiary hearing, the PCR trial judge denied relief. Resp. Exh. 115. On appeal, the Oregon 

2- FINDINGS AND RECOMMENDATION -

Case 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 2 of 7
Court of Appeals affirmed without opinion and the Oregon Supreme Comt denied review. Flores 

v. Nooth, 261 Or. App. 476, 325 P.3d 844, rev. denied, 355 Or. 567, 329 P.3d 770 (2014). 

On September 14, 2014, Petitioner filed his Petition for Writ of Habeas Corpus in this 

Court. Petitioner alleges he was denied effective assistance of trial counsel because trial counsel 

failed to challenge the application to Petitioner of the mandatory minimum sentences of Measure 

11 instead of a sentence under the Oregon Guidelines. Respondent argues the state PCR trial comt 

decision denying relief on Petitioner's claim was not contrmy to or an unreasonable application of 

clearly established federal law and, accordingly, entitled to deference. 1 

LEGAL STANDARDS 

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDP A"), 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) "contra1y 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). 

A state court decision is "contra1y to" federal law under the AEDP A ifit either fails to apply 

the correct Supreme Court authority or applies the correct controlling authority to a case involving 

1

Respondent also argues Petitioner procedurally defaulted several of the "sub-claims" 

contained in his Petition. Because the Court finds Petitioner is not entitled to relief on the 

merits of the Petition, the procedural default issue is not addressed. See 28 U.S.C. § 2254(b )(2) 

("[a ]n application for writ of habeas corpus may be denied on the merits, notwithstanding the 

failure of the applicant to exhaust the remedies available in the courts of the State"); 

Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded 

under § 2254(b )(2) to decline to address procedural default issue where relief denied on the 

merits), cert. denied, 133 S. Ct. 2766 (2013). 

3 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 3 of 7
"materially indistinguishable" facts but reaches a different result. Williams v. Taylor, 529 U.S. 362, 

405-07, 413 (2000). Similarly, a state comi decision is an unreasonable application of federal law 

"if the state court identifies the correct governing legal principle from [the Supreme] Court's 

decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. 

Andrade, 538 U.S. 63, 75 (2003) (citations omitted). 

The last reasoned decision by the state court is the basis for review by the federal court. See 

Ylstv. Nunnemaker, 501 U.S. 797, 803-04 (1991); Franklin v. Johnson, 290F.3d1223, 1233 n.3 

(9th Cir. 2002). The decision of the state PCR trial court is the basis for review in the instant 

proceeding. 

"Defendants have a Sixth Amendment right to counsel, a right that extends to the 

plea-bargaining process." Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (citations omitted). It 

is well established that the two-part Strickland v. Washington test applies to challenges to guilty 

pleas based upon ineffective assistance of counsel. Id. (citing Hill v. Lockhart, 474 U.S. 52, 57 

(1985). Under Strickland, a petitioner must prove that: 1) counsel's performance fell below an 

objective standard of reasonableness and, 2) there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different. Bell v. Cone, 535 

U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91; Strickland v. Washington, 466 U.S. 668, 

687-88 (1984). 

For the performance prong, "DJudicial scrutiny of counsel's performance must be highly 

deferential." Strickland, 466 U.S. at 689. Moreover, "a comi must indulge [the] strong 

presumption that counsel made all significant decisions in the exercise of reasonable professional 

4 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 4 of 7
judgment." Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1407 (2011 )(quoting Strickland) 

(internal quotation marks omitted). The reasonableness of counsel's conduct must be evaluated in 

light of the facts of the case and the circumstances at the time ofrepresentation. Strickland, 466 

U.S. at690. 

"To establish Strickland prejudice a [petitioner] must 'show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding would have 

been different.'" Lafler, 132 S.Ct. at 1384-85 (quoting Strickland, 466 U.S. at 694). "In the 

context of pleas a [petitioner] must show the outcome of the plea process would have been different 

with competent advice." Id. (citing Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012) (additional 

citations omitted). In other words, in order to prevail upon a "claim that ineffective assistance of 

counsel led to the improvident acceptance of a guilty plea" a petitioner must show '"that there is 

a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty 

and would have insisted on going to trial.'" Id. 

Finally, a doubly deferential standard of review applies to federal habeas review of 

ineffective assistance of counsel claims. Knowles v. A1irzayance, 556 U.S. 111, 1420 (2009); 

Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (deference under§ 2254 and deference 

under Strickland). Petitioner must prove thatthere is no reasonable argument that counsel satisfied 

Strickland's deferential standard. Premo v. Moore, 131 S. Ct. 733, 740 (2011); Harrington, 131 

S. Ct. at 788. 

5 -FINDINGS AND RECOMMENDATIONCase 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 5 of 7
DISCUSSION 

As noted, Petitioner alleges his trial counsel performed inadequately by failing to challenge 

Petitioner's combined (overlapping) Measure 11 sentences of 7 5 months as departure sentences, 

and instead argued Petitioner should be sentenced under the guidelines which would have resulted 

in a sentence some seven years shorter than that imposed. In his Memorandum of Support, 

however, Petitioner concedes the validity of Respondent's argument that Petitioner is not entitled 

to relief on the merits, and acknowledges that this Court cannot grant him the relief he seeks. 

Petitioner is correct. The imposition of a mandatory minimum sentence under Measure 11 

does not violate the federal constitutional jury trial and burden-of-proof requirements described in 

Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakelyv. Washington, 542 U.S. 296 (2004). See 

United States v. Dare, 425 F.3d 634, 638-41 (9th Cir. 2005) ("[t]here is no Supreme Comt authority 

requiring a jury to find facts leading to the imposition of mandatory minimum sentences"), cert. 

denied, 548 U.S. 915 (2006). Nor does the imposition of the Measure 11 sentence violate state law. 

See State v Ysasaga, 146 Or. App. 74, 79 n.7, 932 P.2d 1182 (1997) (a Measure 11 sentence is a 

mandatory minimum sentence that is not subject to the guidelines and does not require departure 

findings). 

Because Petitioner's argument that the mandato1y minimum Measure 11 sentences were 

unlawful has no basis in the law, trial counsel was not ineffective for not making the argument. 

Accordingly, Petitioner cannot establish that trial counsel's performance fell below an objective 

standard of reasonableness. As such, the PCR trial co mt decision denying relief was not contrary 

to or an umeasonable application of Strickland, and is entitled to deference. 

6- FINDINGS AND RECOMMENDATION -

Case 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 6 of 7
RECOMMENDATION 

For these reasons, the Petition for Writ of Habeas Corpus should be DENIED and a 

judgment of DISMISSAL entered. 

Because Petitioner has not made a substantial showing of the denial of a constitutional right, 

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

SCHEDULING ORDER 

The above Findings and Recommendation are referred to a United States District Judge for 

review. Objections, if any, are due September 15, 2015. Ifno objections are filed, review of the 

Findings and Recommendation will go under advisement that date. 

A party may respond to another patty's objections within 14 days after the objections are 

filed. lfobjections are filed, review of the Findings and Recommendation will go under advisement 

upon receipt of the res A, or on the latest date for filing a response. 

DATED ti\[~ day of September, 20(15,,.·~. .. . J r.. .) . \ \ ( "'/d 

John ·( Acosta 

United States Magistrate Judge 

7 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-01415-AC Document 28 Filed 09/03/15 Page 7 of 7