IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSE ROSENDO ORTIZ-CONTRERAS, 

Petitioner, 

v. 

MARK NOOTH, Superintendent, 

Snake River Correctional Institution, 

Respondent. 

MARK AHLEMEYER 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

SAMUEL A. KUBERNICK 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97204 

Attorneys for Respondent 

1 - OPINION AND ORDER -

Civil No. 2:15-cv-02210-BR 

OPINION AND ORDER 
BROWN, Judge. 

Petitioner, an inmate at the Snake River Correctional 

Institution, brings this habeas corpus action pursuant to 28 U.S.C. 

§ 2254. For the reasons that follow, the Court DENIES the Amended 

Petition for Writ of Habeas Corpus (ECF No. 24). 

BACKGROUND 

On or about August 31, 1996, Petitioner, along with his 

brother, Marcos Ortiz-Contreras, and his cousin, Rey Saul CotoHernandez (known as "Saul"), killed Hermila Zapo-Coto by strangling 

him and throwing him into the Willamette River near the town of 

Newberg. On September 8, 1996, Petitioner and Saul flew to Mexico. 

Petitioner's brother, Marcos, left for Mexico sometime after 

Petitioner and Saul. 

On September 9, 1996, Zapo-Coto' s body was found in the 

Willamette River. Cloth material, like that from a t-shirt, was 

found around his neck and binding his wrists and legs. In 

addition, a red rope was around his neck, and it appeared to be 

tied to a sack containing rocks, presumably to weigh the body down 

in the river. The medical examiner determined the cause of ZapoCoto' s death to be asphyxia, though he was unable to determine 

whether the victim died due to strangulation or due to drowning in 

the river. A non-lethal laceration was also found on the victim's 

head. 

2 - OPINION AND ORDER-· 
Efforts to bring Petitioner, Marco, and Saul back to the 

United States from Mexico for prosecution were unsuccessful. In 

2007, however, Petitioner returned to the Newberg area using a 

different name, "Rosendo Oliveras. " 1 In November 2007, police 

officers located Petitioner at his new work place and arrested him. 

On December 20, 2007, a Yamhill County grand jury indicted 

Petitioner on charges of Murder and Conspiracy to Commit Murder. 2 

The prosecution's theory of the murder was that Petitioner aided 

and abetted his brother, Marcos, and cousin, Saul, in the murder of 

Zapo-Coto. As to the charge of conspiracy to commit murder, the 

prosecution's theory was that Petitioner made an agreement with one 

or more of the other actors (Marcos and/ or Saul) to kill the 

victim. 

On May 27, 2008, Petitioner's trial commenced. The prosecutor 

made clear that the State was not arguing that Petitioner had 

personally murdered the victim. Instead, the prosecutor contended 

Petitioner was an accomplice or an aider and abettor in causing his 

death. 

To support the Conspiracy to Commit Murder charge, the 

prosecution relied solely upon the testimony of the owner of a 

1

Neither Marcos nor Saul ever returned to the United States. 

2The grand jury also indicted Petitioner on identity theft 

charges in connection with his use of an assumed name, charges upon 

which Petitioner was ultimately convicted, but which are not at 

issue here. 

3 - OPINION AND ORDER -
Mexican restaurant in Newberg. On direct examination, she 

testified that in late August 1996 she overheard Petitioner and 

unnamed others in a conversation about some money and discussion 

that they were going to kill someone and throw him in a river. 

Upon further examination, however, the witness's testimony was not 

so straightforward. She testified that Petitioner may have been in 

her restaurant three times, and that she overheard his conversation 

on two of those occasions. The conversations occurred on separate 

days a short time apart, but the witness could not say whether they 

occurred in June, July, or August of 1996. The witness testified 

that one conversation was between Petitioner and two other men, and 

concerned plans to take a man 

steal his money. The other 

to a tavern to get him drunk and 

conversation, she testified, was 

between Petitioner and one other man (who had also been a party to 

the first conversation) and involved discussion of throwing a man 

in the river. 

The prosecutor also presented evidence that upon his arrest 

Petitioner confessed to being at the scene when Saul killed the 

victim. Petitioner told the officers that he was very intoxicated 

the night of the murder, and he could not remember all of the 

details. Petitioner admitted that he brought Saul a red rope from 

the trunk of the car when Saul yelled at him to do so. Petitioner 

also told the officers that he believed the victim was already dead 

by the time he brought the rope to Saul. 

4 - OPINION AND ORDER -
Pe ti ti oner testified in his own defense at his trial. The 

substance of his testimony mirrored his statement to police. 

Petitioner stated that the day of the murder he drove with his 

brother from Washington to a residence in Newberg which where Saul, 

Zapo-Coto, and others lived. Pe ti ti oner was unaware of any 

disagreement between Saul and Zapo-Coto at first, but over dinner 

at a restaurant Saul told Petitioner and his brother about a 

dispute over money involving Saul, Zapo-Coto, and another of their 

roommates. Petitioner denied that Saul asked him to help Saul kill 

the victim. After dinner, the group returned to Saul's apartment 

and everyone was drinking heavily there. 

At some point that evening, Saul told Zapo-Coto they were 

going to a party and invited him to join Saul, Marcos, and 

Petitioner. Petitioner testified that Marcos drove the car to a 

remote area and parked near a river. Saul, Marcos, and Zapo-Coto 

exited the car. Petitioner, who was intoxicated, initially 

remained in the car. Petitioner testified he heard the sound of 

someone being struck and heard Zapo-Coto cry out. A short time 

later, Saul yelled to Petitioner to bring a rope from the trunk of 

the car, and Petitioner complied. He brought the rope to Saul and 

Marcos, who were at the riverside next to Zapo-Coto' s lifeless 

form. Petitioner thought the victim was dead because he saw Saul 

kick the body and the victim did not move. Petitioner denied 

5 - OPINION AND ORDER -
taking any role in tying the rope to the victim or throwing ZapoCoto in the river. 

The trial judge instructed the jury that to find Petitioner 

guilty of Murder, the prosecution was required to prove beyond a 

reasonable doubt that: (1) the act occurred in Yamhill County; (2) 

the act occurred on or about August 31, 1996; and ( 3) that 

Petitioner intentionally caused the death of another human being. 

As to Petitioner's liability under an aiding and abetting theory, 

the trial judge instructed the jury that a person aides or abets 

another person in the commission of a crime, if the person, with 

the intent to promote or make easier the commission of the crime, 

encourages, procures, advises, or assists by act or advice, the 

planning or commission of the crime. On the Conspiracy to Commit 

Murder count, the trial judge instructed the jury that the 

prosecutor was required to prove five elements: (1) the conspiracy 

occurred in Yamhill County; (2) the conspiracy occurred on or about 

August 31, 1996; (3) Petitioner, with the intent to commit the 

crime of murder; (4) agreed with another person to commit the crime 

of murder; and ( 5) a person commits the crime of murder by 

intentionally causing the death of another human being. 

The jury found Petitioner not guilty of the charge of 

Conspiracy to Commit Murder, but the jury was unable to reach a 

verdict on the Murder charge. The vote on the Murder charge was 

11-0 in favor of guilt, and the jury foreperson informed the trial 

6 - OPINION AND ORDER -
judge it was unlikely the jury would be able to reach a verdict 

with additional deliberation. Accordingly, the trial court 

declared a mistrial on that basis. The prosecutor indicated the 

State intended to re-try Petitioner on the Murder charge. 

In August 2008, a second trial was held on the Murder charge. 

This time, while the prosecutor again argued that Petitioner aided 

and abetted one or more of the others in murdering the victim, the 

prosecutor did not argue there was a "conspiracy" or specific 

agreement to commit the murder. In support of the charge of 

Murder, the prosecution relied upon the same core evidence and 

testimony as in the first trial. The jury instructions were the 

same, except for the omission of the original conspiracy 

instruction. 

The second jury found Petitioner guilty of Murder. The trial 

judge sentenced him to life in prison with a mandatory minimum of 

300 months of imprisonment. 

Petitioner filed a direct appeal, but the Oregon Court of 

Appeals affirmed without opinion and the Oregon Supreme Court 

denied review. State v. Ortiz-Contreras, 246 Or. App. 328, 265 

P.3d 106 (2011), rev. denied, 351 Or. 649, 275 P.3d 968 (2012). 

Petitioner then filed a petition for state post-conviction 

relief ("PCR"), alleging three claims of ineffective assistance of 

counsel. Following an evidentiary hearing, the PCR trial judge 

denied relief. On appeal, the Oregon Court of Appeals affirmed 

7 - OPINION AND ORDER -
without opinion and the Oregon Supreme Court denied review. OrtizContreras v. Nooth, 272 Or. App. 664, 358 P.3d 1008, rev. denied, 

358 Or. 145, 363 P.3d 1287 (2015). 

On November 23, 2015, Petitioner filed a pro se Petition for 

Writ of Habeas Corpus in this Court. This Court appointed counsel, 

who filed an Amended Petition asserting five claims for relief: 3 

Ground One: The trial court erred in not entering a sua 

sponte order for judgment of acquittal. 

Ground Two: Ineffective assistance of trial counsel for 

failing to locate and subpoena Marcos and Saul. 

Ground Three: Ineffective assistance of trial counsel 

for failing to use a phone conversation between 

Petitioner and Marcos in which Marcos confessed to the 

crime. 

Ground Four: Ineffective assistance of trial counsel for 

failing to object to a retrial based on Double Jeopardy. 

Ground Five: Ineffective assistance of trial counsel for 

failing to seek remedies under the Double Jeopardy 

Clause, short of a complete bar to a retrial. 

In his Brief in Support of the Amended Petition, Petitioner 

addresses only the Double Jeopardy claims; he does not provide 

argument on the remaining claims. As to the Double Jeopardy 

claims, Pe ti ti oner concedes they are procedurally defaulted because 

he did not raise them in the state PCR proceeding. Petitioner 

argues, nonetheless, that his procedural default is excused under 

3

The Amended Petition alleges the grounds for relief in 

substantially more detail. For the purposes of brevity, the Court 

relates them as summarized by Petitioner in his Brief in Support. 

8 - OPINION AND ORDER -
Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012), and that he 

is entitled to relief on the merits 

DISCUSSION 

I. Ineffective Assistance for Failure to Object on Double 

Jeopardy Grounds - Excuse of Procedural Default Under Martinez 

A. Legal Standards 

A petitioner does not have a federal constitutional right to 

effective assistance of counsel during state post-conviction 

proceedings. Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); 

Bonin v. Calderon, 999 F.2d 425, 430 (9th Cir. 1993). 

Consequently, the general rule is that any errors committed by PCR 

counsel cannot serve as a basis for cause to excuse procedural 

default. Coleman v. Thompson, 501 U.S. 7 22, 7 52-53 ( 1991) . In 

Martinez, however, the Supreme Court established a limited 

exception to the general rule: " [ i] nadequate assistance of counsel 

at [petitioner's] initial-review collateral proceedings may 

establish cause for a prisoner's procedural default of a claim of 

ineffective assistance at trial." Martinez, 132 S. Ct. at 1315. 

To establish "cause" to overcome a procedural default under 

Martinez, a habeas petitioner must show: 

(1) the underlying ineffective assistance of trial 

counsel claim is "substantial;" { 2) the petitioner was 

not represented or had ineffective counsel during the PCR 

proceeding; (3) the state PCR proceeding was the initial 

review proceeding; and (4) state law required (or forced 

as a practical matter) the petitioner to bring the claim 

in the initial collateral review proceeding. 

9 - OPINION AND ORDER -
Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (citing 

Trevino v. Thaler, 569 U.S. 413, 133 S. Ct. 1911, 1918 (2013)). 

Only the first two factors are at issue here. See Sexton v. 

Cozner, 679 F.3d 1150 (9th Cir. 2012) (in Oregon, claims of 

ineffective assistance of trial counsel must be raised in 

initial-review collateral proceedings), cert. denied, 133 S. Ct. 

863 (2013). Thus, in order for this Court to proceed to the merits 

of Petitioner's ineffective assistance of counsel claim for failing 

to object to a retrial on Double Jeopardy grounds, Petitioner must 

(1) demonstrate that his claim is a "substantial" one, "which is to 

say . . the claim has some merit [, ] " and ( 2) establish that 

post-conviction counsel was ineffective. Clabourne v. Ryan, 745 

F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by 

McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). 

A claim must be examined under the standards of Strickland v. 

Washington, 466 U.S. 668 (1984) to determine whether it is 

substantial. Pursuant to Strickland, Petitioner must show both 

that his attorney's performance fell below an objective standard of 

reasonableness and that the performance prejudiced the defense. 

Strickland, 466 U.S. at 688. 

The question whether an ineffective assistance of trial 

counsel claim is "substantial" under Martinez is not the same as a 

merits review. Rather, it is more akin to a preliminary review of 

a Strickland claim for purposes of determining whether a 

10 - OPINION AND ORDER -
certificate of appealability should issue. Martinez, 132 S. Ct. at 

1318-19. Therefore, a court may conclude that a claim is 

substantial when a petitioner has shown that resolution of the 

merits of the Strickland claim would be "debatable amongst jurists 

of reason" or that the issues presented are "adequate to deserve 

encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 

322, 336 (2003) (internal quotations omitted). 

The substantiality of the claim and ineffectiveness of 

post-conviction counsel factors are interwoven because "[i]f the 

claim of ineffective assistance of [trial] counsel is implausible, 

then there could not be a reasonable probability that the result of 

the post-conviction proceedings would have been any different." 

Clabourne, 745 F.3d at 377. Additionally, "[i]f trial counsel was 

not ineffective, then [a petitioner] would not be able to show that 

PCR counsel's failure to raise claims of ineffective assistance of 

trial counsel was such a serious error that PCR trial counsel 'was 

not functioning as the "counsel" guaranteed by the Sixth 

Amendment.'" Sexton, 679 F.3d at 1159 (quoting Strickland, 466 

U.S. at 687). 

B. Analysis 

Petitioner argues his trial counsel was ineffective for 

failing to object to the second trial on the Murder charge or 

failing to seek other remedies based on principles of Double 

Jeopardy. Petitioner contends that the first jury's acquittal on 

11 - OPINION AND ORDER -
the charge of Conspiracy to Commit Murder necessarily required the 

jury to determine that he did not have the requisite intent to 

commit murder. As such, Petitioner concludes, collateral estoppel 

prevented a retrial on the charge of Murder. 

The constitutional guarantee against Double Jeopardy includes 

the concept of collateral estoppel. See Ashe v. Swenson, 397 U.S. 

436, 445 (1970); United States v. James, 109 F.3d 597, 600 (9th 

Cir. 1997). In this context, collateral estoppel means that "when 

an issue of ultimate fact has once been determined by a valid and 

final judgment, that issue cannot again be litigated between the 

same parties in any future lawsuit." Ashe, 397 U.S. at 443. 

Collateral estoppel analysis involves three steps: 

First, the issues in the two actions are identified so 

that we may determine whether they are sufficiently 

similar and material to justify invoking the doctrine. 

Second, we examine the first record to determine whether 

the issue was fully litigated. Finally, from our 

examination of the record, we ascertain whether the issue 

was necessarily decided. 

James, 109 F.3d at 600 (quoting United States v. Schwartz, 785 F.2d 

673, 681 (9th Cir. 1986)). When an element of the crimes charged 

in successive prosecutions is identical, the "similar and material" 

prong is satisfied. United States v. Ford, 371 F.3d 550, 556 (9th 

Cir. 2004). The determination of whether the issue was 

"necessarily decided" turns on whether an issue of fact or law was 

"actually litigated and determined by a valid and final judgment, 

12 - OPINION AND ORDER -
and ... is essential to the judgment." Bobby v. Bies, 556 U.S. 

825, 834 2152-53 (2009) (citation omitted). 

The earlier determination (whether it be by judge or jury) 

must be given the most rational interpretation possible. United 

States v. Carbullido, 307 F.3d 957, 961-62 (9th Cir. 2002). The 

petitioner bears the burden of showing that the issue whose relitigation he wishes to foreclose in a second proceeding was 

actually decided in the first one, and that no rational jury could 

have grounded its verdict on an issue other than the one the 

petitioner seeks to foreclose. Santamaria v. Horsley, 133 F.3d 

1242, 1246 (9th Cir. 1998) (en bane), amended, 138 F.3d 1280 (9th 

Cir. 1998). In a federal habeas proceeding involving a claim that 

retrial of the allegedly precluded issue would violate double 

jeopardy protections, the preclusi ve effect of the first jury 

verdict is a question of federal law but the state's highest 

court's interpretations of state law are binding. Santamaria, 138 

F.3d 1245. 

Here, the first jury's acquittal of Petitioner on the 

Conspiracy to Commit Murder charge did not necessarily mean the 

jury decided Pe ti ti oner did not otherwise aid and abet in the 

murder of the victim. Under Oregon law, a person is guilty of 

"criminal conspiracy" if the person "agrees with one or more 

persons to engage in or cause the performance of" conduct 

constituting "a crime punishable as a felony or a Class A 

13 - OPINION AND ORDER -
misdemeanor." Or. Rev. Stat. § 161.450(1). As to liability on a 

charge of aiding and abetting, Oregon law provides a person is 

criminally liable for the conduct of another person committing the 

crime if "with the intent to promote or facilitate the commission 

of the crime," the person "aids and abets or agrees or attempts to 

aid or abet such person in planning or committing the crime." Or. 

Rev. Stat. § 161.155(2) (b). Conspiracy and aiding and abetting are 

"two separate and distinct notions in the criminal context" under 

Oregon law. Granewich v. Harding, 329 Or. 47, 56 n.3, 985 P.2d 788 

(1999). 

As noted, the judge instructed the jury at Petitioner's first 

trial as follows: "Oregon law provides that person commits the 

crime of Conspiracy, if the person with the intent to commit a 

crime, agrees with one or more persons to commit the crime." Tr. 

p. 673. As noted, the prosecution's theory on the Murder charge 

was that Petitioner aided or abetted one or more other people (Saul 

and Marcos) in the commission of the murder. In that regard, the 

trial judge instructed the jury that "a person aides or abets 

another person in the commission of the crime, encourages, 

procures, advises, or assists by act or advice, the planning or 

commission of the crime." Tr. p. 678. 

A rational interpretation of the first jury's acquittal on the 

charge of Conspiracy to Commit Murder is that the jury decided the 

testimony of the restaurant owner was insufficient to establish 

14 - OPINION AND ORDER -
beyond a reasonable doubt that Petitioner entered into a prior 

agreement with the other actors to get the victim drunk, kill him, 

and throw him in the river. The jury did not necessarily determine 

thereby that the prosecutor failed to prove Petitioner aided and 

abetted in the murder. The conversations overheard by the 

restaurant owner were separate and distinct from the events 

involving Petitioner, Saul, Marcos, and the victim on the actual 

night of the murder. The prosecutor introduced evidence that, on 

that night, Petitioner learned Saul wanted to kill the victim, that 

Petitioner was present when his brother and cousin were tying the 

victim up and throwing him in the river, and that, at the very 

least, Petitioner took a rope from the trunk of the car and handed 

it to Saul to tie up the victim. As such, the jury rationally 

could have concluded that the prosecution failed to establish the 

existence of a prior agreement to commit the murder, and that 

conclusion is separate and distinct from the jury's inability to 

reach a verdict on whether Petitioner aided and abetted others on 

the night the victim was murdered. See United States v. Herbert, 

6 9 8 F . 2 d 9 81 , 9 8 5 ( 9th Cir . 19 8 3 ) ( " [ c] on s piracy re q-u ires a prior 

agreement to commit an offense" whereas "[a]iding and [a]betting 

does not require a prior agreement, but only that the defendant 

consciously share in a criminal act, regardless of the existence of 

any agreement") (citing Pereira v. United States, 347 U.S. 1, 11-

12 (1954)). 

15 - OPINION AND ORDER -
Under these circumstances, reasonable trial counsel could have 

concluded that objection to the second trial on Double Jeopardy 

grounds would have been futile. As such, trial counsel did not 

perform deficiently by not moving for dismissal of the Murder 

Charge or seeking other remedies. In any event, Petitioner has not 

shown a reasonable likelihood that, even if trial counsel had moved 

for dismissal on double jeopardy grounds, the trial judge would 

have granted the motion. Because trial counsel was not 

ineffective, Petitioner's PCR trial counsel was likewise not 

ineffective for failing to allege the Double Jeopardy claims, and, 

therefore, Petitioner's procedural default is not excused under 

Martinez. See Sexton, 679 F.3d at 1159 (where trial counsel was 

not ineffective, habeas petitioner does not present a substantial 

claim for the purposes of Martinez); Clabourne, 745 F.3d at 377 

("if the claim of ineffective assistance of counsel is implausible, 

then there could not be a reasonable probability that the result of 

the post-conviction proceedings would have been different"). 

Accordingly, Petitioner is not entitled to relief on his claims 

that trial counsel provided constitutionally ineffective assistance 

by failing to object to a retrial or seek other remedies under the 

Double Jeopardy Clause. 

II. Remaining Claims 

As noted, Petitioner does not address the remaining grounds 

for relief in his Brief in Support of the Petition. Accordingly, 

16 - OPINION AND ORDER -
Petitioner has failed to sustain his burden of demonstrating why he 

is entitled to relief on his unargued claims. See Lampert v. 

Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004) (petitioner bears 

burden of proving his case); Davis v. Woodford, 384 F.3d 628, 638 

( 9th Cir . 2 0 0 3 ) ( same ) . Nevertheless, the Court has reviewed 

Petitioner's unargued claims and is satisfied that Petitioner is 

not entitled to relief on the remaining claims alleged in his 

Petition for Writ of Habeas Corpus. 

CONCLUSION 

For these reasons, the Court DENIES the Amended Petition for 

Writ of Habeas Corpus (ECF No. 24) and DISMISSES this action. 

The Court DENIES a certificate of appealability as Petitioner 

has not made a substantial showing of the denial of a 

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

IT IS SO ORDERED. 

DATED this /~ day of May, 2018. 

A~ United States District Judge 

17 - OPINION AND ORDER -