1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONALD KENNETH McMASTER,

Case No. 2:15-cv-00201-SI

Petitioner,

OPINION AND ORDER

v.

MARK NOOTH,

Respondent.

Nell Brown

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

Samuel. A. Kubernick, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 1 of 12
 2 – OPINION AND ORDER

SIMON, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his 2009 state-court 

sentence arising from his probation revocation. For the reasons

that follow, the Amended Petition for Writ of Habeas Corpus (#14)

should be denied.

BACKGROUND

On June 18, 2006, petitioner invited the victim over to his 

house for a barbecue and some drinks. The victim became 

inebriated, vomited, and fell asleep on petitioner’s couch. 

Respondent’s Exhibit 127, p. 83. She woke up to petitioner 

sexually assaulting her, but she was unable to move. When 

petitioner realized she was awake, he stopped what he was doing 

and apologized. Id. As a result, the Deschutes County Grand 

Jury accused petitioner of Unlawful Sexual Penetration in the 

First Degree, Sodomy in the First Degree, and three counts of 

Sexual Abuse in the First Degree. Respondent’s Exhibit 104.

On August 20, 2007, petitioner entered an Alford plea to one 

count each of Attempted Unlawful Sexual Penetration in the First 

Degree, Attempted Sodomy in the First Degree, and Attempted 

Sexual Abuse in the First Degree.1 Respondent’s Exhibit 105. 

Judge admonished him “you need to understand that if you violate 

 

1 Pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), a court may 

accept a guilty plea despite defendant's claims of innocence where the 

defendant intelligently concludes that his best interests require entry of a 

guilty plea and the record before the judge contains strong evidence of actual

guilt.

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 2 of 12
 3 – OPINION AND ORDER

the terms and conditions of probation you come back and see me, 

you’re going to prison.” Respondent’s Exhibit 106, p. 4. 

On November 16, 2007, the Deschutes County Circuit Court 

held petitioner’s sentencing hearing where the State requested a 

downward departure of time served and ten years’ probation. The 

State outlined the agreement between the parties as follows: “The

agreement is basically that it’s a stipulated downward departure 

with 132 months of Department of Corrections’ time to be 

suspended if he were to be revoked on probation, he would be 

going to the Department of Corrections for 132 months.” 

Respondent’s Exhibit 108, p. 4. This 132-month sentence was 

reflected, albeit rather cryptically, in handwriting in the Plea 

Petition. Respondent’s Exhibit 105, p. 2. The Plea Petition did

not, however, specifically identify the 132-month sentence as a 

suspended sentence.

The court imposed the State’s requested sentence, and 

petitioner left custody the day of sentencing. Respondent’s 

Exhibit 108, pp. 17-18. The court advised petitioner, “I’m not 

into excuses on probation. If you come and see me on a 

[probation violation] . . . rest assured it will be one of the 

worse days of your life.” Id at 23-24. Although the court 

verified with the prosecutor and defense counsel that the 

sentence exactly represented the agreement between the parties, 

the court did not explicitly state that the 132-month prison 

sentence was suspended pending petitioner’s compliance with the 

terms of his probation.

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 3 of 12
 4 – OPINION AND ORDER

Two years later, petitioner admitted to violating several

terms of his probation, leading to a probation violation hearing 

where both petitioner and the State were represented by new 

counsel. The most serious violation occurred when he fled the 

country for Costa Rica and remained on abscond status because he 

“wasn’t going to be under anyone’s thumb for five years.” 

Respondent’s Exhibit 109, p. 8. Authorities subsequently located

petitioner and returned him to the United States. As a result of

petitioner’s failures on probation, the State asked the court to 

impose a prison sentence of 132 months, stating that petitioner 

“agreed with these sentences as a condition of the State taking 

the case out of Measure 11.” Id at 7. 

The Judge presiding over the probation violation hearing was 

the same Judge who had originally sentenced petitioner. Due to 

the passage of time, he listened to the audio recordings of the 

plea and sentencing hearings in open court to determine the 

intent of the parties at that time. After the recordings 

concluded, the Judge stated, “I am convinced that from listening 

to the record it was 132 months. It was certainly the expected 

result. . . .” Id at 39. Accordingly, the court proceeded to 

impose a 132-month prison sentence on petitioner.

Petitioner took a direct appeal from the probation 

revocation judgment. The Oregon Court of Appeals affirmed the 

trial court without issuing a written opinion, and petitioner did

not seek further review in Oregon’s Supreme Court. State v. 

McMaster, 242 Or. App. 604, 255 P.3d 676 (2011).

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 4 of 12
 5 – OPINION AND ORDER

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

Malheur County where the PCR court denied relief. Respondent’s 

Exhibit 126. The Oregon Court of Appeals affirmed the lower 

court’s decision without opinion, McMaster v. Nooth, 260 Or. App.

782, 325 P.3d 69 (2014), and the Oregon Supreme Court dismissed 

the Petition for Review as untimely. Respondent’s Exhibits 133-

137.

Petitioner filed this federal habeas corpus case on February 

5, 2015 and, with the assistance of appointed counsel, filed an 

Amended Petition on July 7, 2015 in which he raises the following

grounds for relief:

Ground 1(A): Counsel failed to perform 

effectively with regard to sentencing, 

including failing to clarify the scope of the

plea agreement and to clarify and/or preserve

arguments about: the gridblock applicable to 

each count, including the appropriate 

criminal history for each count; the 

presumptive and maximum sentences; the merger

of counts; whether the case involved a single

criminal episode, whether there was a basis 

for the imposition of consecutive sentences; 

and the maximum possible sentence upon 

revocation of probation;

Ground 1(B): Counsel failed to perform 

effectively with regard to the probation 

violation sanction hearing, including failing

to object to the probation violation sanction

on various available state-law grounds, 

including, but not limited to, arguing that 

the term imposed was illegal under Oregon 

law, including but not limited to, Oregon’s 

200% rule and Oregon law regarding the 

reconstitution of criminal history and the 

imposition of consecutive sentences.

Ground Two: Appellate counsel failed to 

effectively pursue a challenge to the 

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 5 of 12
 6 – OPINION AND ORDER

legality of petitioner’s probation violation 

sanction on appeal.

Amended Petition (#14), pp. 4-5.

Respondent initially raised procedural default arguments as 

to petitioner’s claims, but agreed to waive those arguments in 

the Joint Stipulation Agreement (#48) filed by the parties on 

August 17, 2016. Respondent now asks the court to deny relief 

on the Amended Petition because: (1) petitioner fails to meet his

burden of proof on his unargued claims; and (2) the PCR court 

reasonably denied petitioner’s argued claim of ineffective 

assistance of counsel pertaining to the imposition of the 132-

month probation revocation sanction.

DISCUSSION

I. Standard of Review

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) "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 "contrary to . . . 

clearly established precedent if the state court applies a rule 

that contradicts the governing law set forth in [the U.S. Supreme

Court's] cases" or "if the state court confronts a set of facts 

that are materially indistinguishable from a decision of [the 

U.S. Supreme] Court and nevertheless arrives at a result 

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 6 of 12
 7 – OPINION AND ORDER

different from [that] precedent." Williams v. Taylor, 529 

U.S. 362, 405-06 (2000). 

Under the "unreasonable application" clause of § 2254(d)(1), 

a federal habeas court may grant relief "if the state court 

identifies the correct governing legal principle from [the U.S. 

Supreme Court's] decisions but unreasonably applies that 

principle to the facts of the prisoner's case." Id at 413. The 

"unreasonable application" clause requires the state court 

decision to be more than incorrect or erroneous. Id at 410. 

Section 2254(d) "preserves authority to issue the writ in cases 

where there is no possibility fairminded jurists could disagree 

that the state court's decision conflicts with [the Supreme] 

Court's precedents. It goes no farther." Harrington v. Richter,

562 U.S. 86, 102 (2011). 

Section 2254(d)(2) allows a petitioner to “challenge the 

substance of the state court’s findings and attempt to show that 

those findings were not supported by substantial evidence in the 

state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 

(9th Cir. 2012). A federal habeas court cannot overturn a state 

court decision on factual grounds unless the decision was 

“objectively unreasonable in light of the evidence presented in 

the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 

322, 340 (2003). This is a “‘daunting standard—one that will be 

satisfied in relatively few cases,’ especially because we must be

‘particularly deferential to our state-court colleagues.’” 

Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting 

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). 

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 7 of 12
 8 – OPINION AND ORDER

II. Unargued Claims

In his Amended Petition, petitioner raises two grounds for 

relief containing various sub-claims. In his supporting 

memorandum, however, petitioner chooses to brief a single claim: 

whether counsel provided ineffective assistance when he failed to

object to the imposition of the 132-month sentence where the term

violated Oregon law governing the: (1) reconstitution of his 

criminal history; (2) imposition of consecutive sentences; 

(3) 200% rule; and (4) “shift-to-I” rule.2 Where petitioner does 

not argue the merits of his remaining claims, he has not carried 

his burden of proof with respect to the unargued claims. See

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

bears the burden of proving his claims). 

III. Ineffective Assistance of Counsel

As outlined above, petitioner believes appointed counsel 

could have objected to the imposition of the 132-month probation

violation sanction on a number of bases under Oregon law. He 

asserts that he is entitled to habeas relief pursuant to 28 

U.S.C. § 2254(d)(2) because the PCR court erred in its factual 

finding that he stipulated to the sentence, and further claims 

that habeas relief is appropriate under § 2254(d)(1) because the 

PCR court’s decision on his ineffective assistance of counsel 

claim involved an unreasonable application of clearly established

federal law.

 

2 These claims corresponds to Ground 1(B) of the Amended Petition wherein 

petitioner challenges attorney conduct during his probation violation sanction

hearing. 

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 8 of 12
 9 – OPINION AND ORDER

Because no Supreme Court precedent is directly on point that 

corresponds to the facts of this case, the court uses the general

two-part test established by the Supreme Court to determine 

whether petitioner received ineffective assistance of counsel. 

Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, 

petitioner must show that his counsel's performance fell below an

objective standard of reasonableness. Strickland v. Washington, 

466 U.S. 668, 686-87 (1984). Due to the difficulties in 

evaluating counsel's performance, courts must indulge a strong 

presumption that the conduct falls within the "wide range of 

reasonable professional assistance." Id at 689. 

Second, petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

whether the petitioner can show "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 of the trial. Id at 696. When 

Strickland's general standard is combined with the standard of 

review governing 28 U.S.C. § 2254 habeas corpus cases, the result

is a "doubly deferential judicial review." Mirzayance, 556 U.S. 

at 122.

Petitioner asserts that the trial court imposed an illegal 

132-month sentence at his probation revocation proceeding under 

the mistaken impression that the State and defense counsel had 

stipulated to that sentence. He believes that if counsel had 

objected, there is a reasonable probability the court would have 

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 9 of 12
 10 – OPINION AND ORDER

understood it was not bound to the 132-month sentence and imposed

a lesser sentence. The PCR court rejected this claim finding

that petitioner did, in fact, stipulate to his sentence, and that

he received a benefit for this stipulation insofar as: (1) all of

his charges were reduced so as to take them out of Oregon’s 

mandatory minimum sentencing scheme; and (2) he received a 

downward departure sentence of probation. Respondent’s Exhibit 

126, p. 1.

Petitioner asserts that the PCR court’s factual finding 

regarding the stipulation is unreasonable. He claims that 

neither the Plea Petition nor the plea colloquy specifically

identified what his sentence would be in the event of a probation

revocation, and that that the original sentence was simply 

referred to as a downward departure to a probationary sentence of

ten years. He asserts that where the record was silent as to 

what would occur were the court to revoke his probation, the PCR 

court erred when it determined that the parties had stipulated to

a 132-month sanction.

As noted in the Background of this Opinion, the 132-month 

sentence was written into the Plea Petition, even if it did not 

specifically say that the figure represented the sentence 

petitioner would serve if he violated his probation. 

Respondent’s Exhibit 105, p. 3. Construing the 132-month figure 

as a probation sanction is a reasonable reading of the Plea 

Petition where petitioner was released to probation on the day of

his sentencing and obviously was not obligated to immediately 

serve the 132-month sentence.

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 10 of 12
 11 – OPINION AND ORDER

In addition, at his sentencing hearing following the entry 

of his pleas, the prosecutor stated on the record that the 

“agreement is basically, it is a stipulated downward departure 

with 132 months of Department of Corrections’ time to be 

suspended if he were to be revoked on probation. He’d be going 

to the Department of Corrections for 132 months.” Respondent’s 

Exhibit 108, p. 4. Neither petitioner not his attorney objected 

to this representation, and defense counsel advised the court 

during that same proceeding “that if he does not follow through 

on the conditions of probation . . . he will be revoked and go to

prison for a very long time.” Id at 14. 

During petitioner’s probation revocation hearing in 2009, 

the prosecutor asked the court to impose a 132-month prison 

sentence because petitioner “agreed with these sentences as, ah, 

a condition of the State taking the case out of Measure 

11. . . .” Respondent’s Exhibit 109, p. 7. The Judge listened 

to the audio recordings of the plea and sentencing hearings and 

concluded, “I am convinced that from listening to the record it 

was 132 months. It was certainly the expected result. . . .” Id

at 39. 

Based upon this record, the PCR court reasonably concluded

that petitioner stipulated to the 132-month sentence as a 

condition to his plea agreement. Where petitioner stipulated to

the sentence, he could not later take issue with its imposition 

following the revocation of his probation. See State v. Ivie, 

213 Or. App. 198, 201, 159 P.3d 1257 (2007) (stipulated sentences

may exceed the applicable statutory scheme and are generally not 

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 11 of 12
 12 – OPINION AND ORDER

reviewable on appeal). Counsel was therefore under no obligation

to object to the imposition of the agreed-upon sanction, thus his

performance did not fall below an objective standard of 

reasonableness. For these reasons, petitioner is not entitled to

habeas corpus relief under either § 2254(d)(1) or § 2254(d)(2). 

CONCLUSION

For the reasons identified above, the Amended Petition for 

Writ of Habeas Corpus (#14) is DENIED. The court declines to 

issue a Certificate of Appealability on the basis that petitioner

has not made a substantial showing of the denial of a 

constitutional right pursuant to 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 4th day of November, 2016.

 

/s/ Michael H. Simon______________

Michael H. Simon

United States District Judge

Case 2:15-cv-00201-SI Document 54 Filed 11/04/16 Page 12 of 12