IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LARRY DEAN HUTCHINSON, 

Case No. 2:15-cv-00293-HZ 

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 

1 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 1 of 11
HERNANDEZ, District Judge. 

Petitioner brings this habeas corpus case 

U.S. C. § 22 54 challenging the legality of his 

pursuant to 28 

66-month statecourt sentence from 2006. For the reasons that follow, the court 

requires additional briefing from respondent. 

BACKGROUND 

On August 8, 2006, the Marion County Grand Jury indicted 

petitioner on four counts of Felon in Possession of a Firearm. 

Respondent's Exhibit 104. Each count was alleged to have 

involved a separate criminal episode from the same day, June 7, 

2006 because petitioner was in possession of four different 

firearms on that date. Id. 

Petitioner stipulated that he was a felon in possession of 

four firearms on the day in question, but did not agree that the 

possession of the four firearms was sufficient to qualify as four 

separate criminal episodes justifying the imposition of 

consecutive sentences. The State not only pursued consecutive 

sentences, but also sought the imposition of departure sentences. 

Pe ti ti oner waived his right to have a jury determine the facts 

necessary to justify departure sentences, leaving that issue to 

the sentencing judge for resolution. Respondent's Exhibit 122. 

Defense counsel argued that petitioner's possession of the 

four firearms arose from a single course of conduct that did not 

justify consecutive sentences. The trial court concluded that 

"Defendant possessed four guns. 

some at other times. However, 

possess, four separate items. 

2 - OPINION AND ORDER 

Some he got at the same time, 

he wished to possess, and did 

The possession of each item is a 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 2 of 11
crime." Respondent's Exhibit 111, pp. 36-37. The court 

concluded that consecutive sentences were appropriate as to all 

counts, and imposed departure sentences totaling 96 months in 

prison. Respondent's Exhibits 110, pp. 13-15; Respondent's 

Exhibit 111, pp. 36-37. 

Petitioner took a direct appeal in which he challenged the 

legality of his sentence. Respondent's Exhibit 111. The parties 

jointly moved to vacate the trial court's Judgment and remand the 

case for resentencing because his 96-month sentence exceeded 

Oregon's 200% and 400% rules. Respondent's Exhibit 112. The 

Oregon Court of Appeals granted the parties' motion, leading to a 

resentencing proceeding in which the trial court imposed 

consecutive departure sentence totaling 66 months in prison. 

Respondent's Exhibit 144, pp. 9-10. 

Petitioner did not seek further direct review, and instead 

proceeded to file for post-conviction relief ("PCR") in Malheur 

County where he raised eight claims of ineffective assistance of 

counsel. The State moved for judgment on the pleadings as to 

seven of petitioner's claims because he failed to provide any 

documentation to show he was entitled to relief on them. The PCR 

court granted the State's Motion, and ultimately resolved the 

final claim (pertaining to counsel's alleged failure to argue 

against the imposition of fees and fines) against petitioner. 

Respondent's Exhibits 131 & 137. 

Petitioner appealed the PCR court's decision raising claims 

by way of both counseled and pro se briefing. Respondent's 

Exhibits 138 & 139. The Oregon Court of Appeals affirmed the PCR 

3 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 3 of 11
court's decision without opinion, and the Oregon Supreme Court 

denied review. Hutchinson v. Nooth, 264 Or. App. 783, 333 P.3d 

764, rev. denied, 356 Or. 574, 342 P.3d 87 (2014). 

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

February 19, 2015 in which he argues that trial counsel was 

constitutionally ineffective when he failed to: 

1. Argue that the enhancement facts used to 

increase petitioner sentence were not timely 

presented to the court and petitioner; 

2. Argue that there were mitigating 

factors, and that the enhancement facts used 

to aggravate petitioner's sentence were not 

proven beyond a reasonable doubt; 

3. Argue that no substantial 

reasons were stated in open 

Judge to deny the petitioner 

early release or 936 credits; 

and compelling 

court by the 

any forms of 

4. Adequately and effectively advise 

petitioner of the consequences and the effect 

of the rights being given away in regards to 

accepting a trial by judge; 

5. Argue against the imposition of fin es 

and fees against petitioner; and 

6. Adequately prepare for petitioner's 

sentence where he did not have arguments to 

address the imposition of the 200% and 400% 

rule. 

Petition for Writ of Habeas Corpus (#2), pp. 4-8. 

Respondent asks the court to deny relief on the Petition 

because: ( 1) Ground Five does not go to petitioner's detention, 

and is therefore not cognizable in a habeas corpus case; 

(2) petitioner failed to fairly present Grounds Two, Three, Four, 

and Six, leaving them procedurally defaulted; and ( 3) the PCR 

4 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 4 of 11
court's decision denying relief on Ground One is neither contrary 

to, nor an unreasonable application of, clearly established 

federal law. 

DISCUSSION 

I. Unargued Claims 

As previously noted, petitioner raises six grounds for 

relief. In his supporting memorandum, however, petitioner 

chooses to brief two claims of ineffective assistance of counsel: 

(1) whether his defense attorney should have advised him to waive 

his right to have a jury determine the facts used to enhance his 

sentence; and ( 2) whether counsel failed to adequately prepare 

for sentencing and argue the law limiting enhancements to 

petitioner's sentence. These arguments appear to pertain to 

Grounds Two, Four, and Six, respectively. 

Petitioner does not argue the merits of his remaining 

claims, nor does he address any of respondent's arguments as to 

why relief on these claims should be denied. As such, petitioner 

has not carried his burden of proof with respect to Grounds One, 

Three, and Five. See Silva v. Woodford, 279 F.3d 825, 835 (9th 

Cir. 2002) (petitioner bears the burden of proving his claims) . 

Even if petitioner had briefed the merits of these claims, the 

court has examined them based upon the existing record and 

determined that they do not entitle him to relief. 

II. Exhaustion and Procedural Default 

A. Standards 

A habeas petitioner must exhaust his claims by fairly 

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

5 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 5 of 11
direct appeal or collateral proceedings, before a federal court 

will consider the merits of those claims. Rose v. Lundy, 4 55 

U.S. 50 9, 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 

U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 

(1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). 

Ill 

6 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 6 of 11
B. Analysis 

Petitioner summarily asserts that he fairly presented his 

argued claims to Oregon's courts. A review of the record reveals 

that petitioner raised the substance of Grounds Two, Four, and 

Six to the PCR court. Respondent's Exhibit 116, pp. 3-4. During 

his PCR appeal, however, petitioner's appointed attorney narrowed 

his claims to focus only on whether counsel should have argued 

against the imposition of fines and fees (correlating to 

petitioner's unargued claim in Ground Five of his Petition for 

Writ of Habeas Corpus) . Respondent's Exhibit 138, p. 6. This 

prompted petitioner to file a Pro Se Supplemental Appellant's 

Brief in which he raised the following issues in the Question 

Presented portion of that brief: 

Did post-conviction court error in denying 

Petitioner's formal petition for postconviction based on Petitioner's claims of 

ineffective assistance of trial counsel's 

failure to object to sentencing enhancement 

facts not alleged in a reasonable amount of 

time and failure to argue enhancement facts 

not proven beyond a reasonable doubt. 

Respondent's Exhibit 139, p. 3 (bold added). 

Al though it is clear petitioner did not raise his argued 

claim pertaining to the jury waiver, he did allege that trial 

counsel failed to argue that the State had not proven the facts 

necessary to support his departure sentences. Respondent • 

contends that petitioner argued this claim only in due process 

terms, and failed to provide any argument as to how counsel 

performed deficiently such that he failed to fairly present the 

claim. The court disagrees. Petitioner specifically alleged 

7 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 7 of 11
that counsel failed to argue that the State had not proven its 

enhancement facts beyond a reasonable doubt, and proceeded to 

support that claim with his contention that "[t] he prosecutor 

only stated 3 factors, but never proved them in accordance to ORS 

136.785(1). The judge then proceeded to use the same stated, 

unproved factors to upward depart and enhance the sentence 8 

times." Id at 4. Where petitioner raised this same issue in his 

Petition for Review, Respondent's Exhibit 141, p. 3, petitioner 

fairly presented it to Oregon's state courts so as to preserve it 

for habeas corpus review. 

C. Exceptions to Procedural Default 

Petitioner asserts that the court should excuse his default 

as to his ineffective assistance of counsel claim pertaining to 

his waiver of a jury based upon the ineffective assistance of PCR 

counsel. Specifically, although petitioner concedes PCR counsel 

raised this claim, he faults counsel for not adequately 

developing the claim, thereby leading to his procedural default. 

Traditionally, 

used to establish 

the performance of PCR counsel could not be 

cause and prejudice to excuse a procedural 

default. Coleman v. Thompson, 501 U.S. 722, 753-54 

the constitutionally ineffective assistance 

(1991) (only 

of counsel 

constitutes cause); Pennsylvania v. Finley, 481 U.S. 551, 556 

(1987) (there is no constitutional right to counsel in a PCR 

proceeding). In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the 

Court created a narrow equitable exception to that principle and 

concluded that when an initial-level PCR attorney omits a 

substantial claim such that counsel was ineffective, the omission 

8 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 8 of 11
will establish cause and prejudice for the default. The Court 

did not hold that the performance of a PCR attorney who raised a 

claim but who did not "adequately develop" the claim might excuse 

a procedural default. Id at 1318. Moreover, as the Ninth 

Circuit recognized in Lopez v. Ryan, 678 F.3d 1131, 1137 (9th 

Cir. 2012), to expand Martinez in this way would create tension 

with Supreme Court precedent the Supreme Court had already 

established at the time of its decision in Martinez. See, e.g., 

Cullen v. Pinholster, 563 U.S. 170, 185 (2011) ("[E]vidence 

introduced in federal court has no bearing on § 2254 (d) (1) 

review. If a claim has been adjudicated on the merits by a state 

court, a federal habeas petitioner must overcome the limitation 

of § 2254(d) (1) on the record that was before that state 

court.") . 

this way. 

Accordingly, petitioner cannot excuse his default in 

Petitioner also asserts that he can excuse his procedural 

default because he is actually innocent. In Schlup v. Delo, 513 

U.S. 298 (1995), the Supreme Court concluded that a habeas 

petitioner may excuse a procedural default by showing that in 

light of new evidence, it is more likely than not that no 

reasonable juror would have found him guilty beyond a reasonable 

doubt. Id at 317. Petitioner in the case at bar does not allege 

factual innocence as to the underlying criminal conduct of which 

he was convicted. Instead, he claims to be "innocent" of his 

sentence. Neither the Supreme Court nor the Ninth Circuit has 

extended the concept of actual innocence to a non-capital 

sentencing issue, and the Ninth Circuit has recognized that a 

9 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 9 of 11
showing of actual innocence requires a petitioner to demonstrate 

"that the petitioner is innocent of the charge for which he is 

incarcerated. " Gandarela v. Johnson, 286 F.3d. 1080, 1085 

(9th Cir. 2001) (citing Schlup, 513 U.S. at 321). In the context 

of an Oregon inmate who alleged that his consecutive sentences 

were plainly unlawful under the applicable Oregon statute, the 

Ninth Circuit concluded that the inmate could not avail himself 

of the actual innocence exception to procedural default where he 

failed to establish his factual innocence as to his crime of 

conviction. Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 

2001) . 

is 

Where the actual 

firmly rooted in 

innocence exception to procedural default 

the fundamental question of an inmate's 

factual innocence as to the crime (s) of conviction, this court 

declines to extend the actual innocence exception to non-capital 

sentencing error. See Bousley v. United States, 523 U.S. 538, 

559 (1998) (actual innocence means factual innocence, not legal 

insufficiency); see also Sawyer v. Whitley, 505 U.S. 333, 340 

( 1992) (A "prototypical example" of actual innocence "is the case 

where the State has convicted the wrong person of the crime."); 

Johnson v. Knowles, 541 F.3d 933, 937-38 (9th Cir. 2008) ("the 

miscarriage of justice exception is limited to those 

extraordinary cases where the petitioner asserts his innocence 

and establishes that the court cannot have confidence in the 

contrary finding of quilt.") (italics in original, bold added) . 

For all of these reasons, petitioner is unable to excuse his 

procedural default as to his claim that trial counsel was 

10 - OPINION AND ORDER 

Case 2:15-cv-00293-HZ Document 37 Filed 10/28/16 Page 10 of 11
ineffective for advising petitioner to waive his right to a jury 

at sentencing. Petitioner did, however, fairly present his claim 

that trial counsel failed to argue that the State had not proven 

the facts underlying his departure sentences beyond a reasonable 

doubt. Because respondent has not yet briefed the merits of 

petitioner's remaining claim, the court will allow him an 

opportunity to do so. 

CONCLUSION 

For the reasons identified above, all of petitioner's claims 

are denied with the exception of the following: whether trial 

counsel was constitutionally ineffective when he failed to argue 

that the State had not proven the facts underlying his departure 

sentences beyond a reasonable doubt. Where respondent has not 

addressed this claim on its merits, the court allows him 30 days 

to do so. The court will take petitioner's remaining claim under 

advisement 45 days from the date of this Order. 

IT IS SO ORDERED. 

DATED this 2g day of October, 2016. 

11 - OPINION AND ORDER 

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