IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

GUADALUPE GONZALEZ, 

Case No. 3:15-cv-02126-SI 

Petitioner, 

OPINION AND ORDER 

v. 

MARK NOOTH, 

Respondent. 

Anthony D. Bornstein 

Assistant Federal Public Def ender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Frederick M. Boss, Deputy Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 1 of 11
SIMON, 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 in the First Degree. For the 

reasons that follow, the Petition for Writ of Habeas Corpus (#2) 

is denied. 

BACKGROUND 

In 2009, the Marion County Grand Jury charged petitioner 

with five counts of Sexual Abuse in the First Degree. 

Petitioner admitted to the criminal conduct and ultimately 

pleaded guilty to three counts of Sexual Abuse in the First 

Degree in exchange for the State's agreement to dismiss the 

remaining charges and cap its sentencing recommendation at 150 

months. 

During petitioner's sentencing, the judge stated the 

following without objection: 

I'm going to read you something and this is 

from a gentleman that was a former police 

chief, he was an FBI special agent, he was a 

member of the FBI's first SWAT team and he's 

chief of the FBI' s behavioral science unit. 

He has a substantial history and expertise in 

child abuse, and this is what he says about 

pedophiles. They are rational, sadistic, 

often intelligent and almost invariably 

narcissistic. They see themselves as living 

in a realm somewhere above the rest of us in 

a place where the rules of normal society do 

not apply. The depth of this psychopathic 

evil is beyond comprehension of most normal 

people. I've seen it many times. A 

pedophile is arrested, a man from a 

comfortable, upper class neighborhood, 

suddenly all of his neighbors express shock 

and [disbelief]. He was such a fine, 

2 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 2 of 11
upstanding man, a doting father. He even 

coached Little League. He can't possibly 

have done what he's accused of. What those 

good people don't fully comprehend is that as 

a pedophile, this man is a sexual abuser of 

children. He hurts children. That is what 

he is at his core. He hurts children 

because, to him, their suffering is of no 

consequence. It is a meaningless byproduct 

of behavior that makes him feel good and his 

own pleasure is more important to him than 

anything or anyone else. Invariably, even 

from behind prison bars, he will never 

concede that what he did was damaging to a 

child. No, he insists what he did was done 

of love and it is the rest of the world that 

doesn't understand. Reality is that this 

man's wife, his nice house in the suburbs, 

his coaching job, even his own children are 

props, the artifice that covers up and 

facilitates what he truly is. He continues 

to do what he does because that is what he 

cherishes above all else. What is real about 

him is his evil. 

Respondent's Exhibit 105, pp. 23-24. 

The judge also stated that "experts tell me that people who 

abuse children there is no rehabilitation for them, they 

don't get cured of it." Id at 26. He indicated that although he 

was inclined to sentence petitioner consecutively on all three 

counts for a total sentence of 225 months, 1 he would follow the 

State's recommendation and sentence petitioner to 150 months in 

prison. Id at 29. 

Petitioner took a direct appeal wherein he challenged the 

proportionality of his sentence under the Oregon Constitution, 

but the Oregon Court of Appeals affirmed the trial court's 

decision without opinion and the Oregon Supreme Court denied 

1 Either the sentencing judge or the court reporter mistakenly cited the 

upward figure as 220 months. 

3 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 3 of 11
review. State v. Gonzalez, 242 Or. App. 604, 255 P.3d 676, rev. 

denied, 350 Or. 717, 260 P.3d 494 (2011). 

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

Malheur County. Among his claims, petitioner asserted that his 

trial attorney had performed in a constitutionally ineffective 

manner when he failed to object to the sentencing judge's 

reliance on an expert letter that neither party submitted. The 

PCR court denied relief on this claim, finding that while there 

appeared to be "some bias" on the part of the sentencing judge, 

he also relied upon several other bases when imposing 

petitioner's sentence. Respondent's Exhibit 12 9, p. 1 7. The 

Oregon Court of Appeals affirmed the PCR court's decision without 

opinion, and the Oregon Supreme Court denied review. Gonzalez v. 

Nooth, 271 Or. App. 377, 353 P.3d 618, rev. denied, 357 Or. 640, 

360 P.3d 523 (2015). 

On November 12, 2015, petitioner filed his Petition for Writ 

of Habeas Corpus in which he raises three grounds for relief: 

1. The sentencing court erred in imposing a 

mandatory minimum sentence; 

2. Counsel at sentencing failed to: (a) 

object to the judge prosecuting the case; (b) 

object to an anonymous expert's opinion being 

read into the case; ( c) demand cross 

examination of the expert; and (d) verify 

credentials of the expert; and 

3. The sentencing judge cornrni tted 

misconduct when he determined to practice law 

from the bench insofar as he introduced his 

own expert witness at the sentencing, thus 

taking on the role of a prosecutor. 

Respondent asks the court to deny relief on the Petition 

4 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 4 of 11
because: (1) petitioner failed to fairly present Grounds One and 

Three to Oregon's state courts, leaving them procedurally 

defaulted; and (2) the PCR court's denial of Ground Two is 

correct and entitled to deference. 

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's findings of fact are presumed 

correct, and petitioner bears the burden of rebutting the 

presumption of correctness by clear and convincing evidence. 28 

U.S.C. § 2254 (e) (1). 

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 Supreme Court's] 

cases" or "if the state court confronts a set of facts that are 

materially indistinguishable from a decision of [the Supreme] 

Court and nevertheless arrives at a result different from [that] 

precedent." W i 11 i ams v. Tay 1 or, 5 2 9 U . S . 3 6 2 , 4 0 5- 0 6 ( 2 0 0 0 ) . 

Under the "unreasonable application" clause, a federal habeas 

5 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 5 of 11
court may grant relief "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." Id at 413. The "unreasonable application" 

clause requires the state court decision to be more than 

incorrect or erroneous. Id at 410. Twenty-eight U.S.C. 

§ 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). 

II. Unargued Claims 

As previously noted, petitioner raises three grounds for 

relief in his Petition. In his supporting memorandum, however, 

petitioner chooses to brief only his Ground Two claim that trial 

counsel failed to object to the sentencing court's reliance on an 

unidentified expert opinion concerning sexual offenders. 

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 these unargued 

claims. 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 

6 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 6 of 11
examined them based upon the existing record and determined that 

they do not entitle him to relief. 

III. Failure to Object at Sentencing 

With respect to petitioner's claim that counsel should have 

objected to the sentencing court's reliance upon the opinion of 

an unidentified expert, no Supreme Court precedent is directly on 

point that corresponds to the facts of this case. As a result, 

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 which is sufficient to undermine 

confidence in the outcome of the proceeding. Id at 696. When 

Strickland's general standard is combined with the standard of 

7 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 7 of 11
review governing 28 U.S.C. § 2254 habeas corpus cases, the result 

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

at 122. 

During petitioner's PCR proceedings, he introduced an 

affidavit from his trial attorney on the issue. Counsel stated 

as follows: 

. I would note that the Judge did express 

an opinion relating to recidivism in sex 

offenders and expressed his belief that no 

therapy would deter future conduct of this 

sort, however there was absolutely no 

opportunity at that point to call witnesses 

in rebuttal. Had I known in advance of [the 

Judge's] bias I certainly would have sought 

some rebuttal evidence with respect to his 

opinions and/or I would have moved to recuse 

him from the case prior to the plea. I 

sincerely feel that [the Judge's] 

predispositions in this case did seriously 

prejudice him in.imposing the sentences that 

he did. 

Respondent's Exhibit 120, p. 2. 

The PCR court resolved the issue in a reasoned decision: 

Well, it appears to me I read the 

sentencing transcript that was provided. 

Because this case arose out of Marion County 

it's unique in the sense that I know the 

people involved in the case. I'm very 

familiar with the defense counsel and 

also am very familiar with [the Judge]. 

It appeared to me that the Judge may have had 

a bit of preconceived bias towards offenders 

of [ pet it ion er ' s ] type , but that ' s a r is k, 

qui[te] candidly, that Defendants run when 

they come into court. 

[Petitioner's] memorandum dealt extensively 

with something that isn't part of post 

conviction relief, so counsel knows why he 

didn't bring it up, I just want to mention[] 

8 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 8 of 11
it, the fact that [the Judge] should have 

recused himself, and maybe he should have. 

But certainly [defense counsel] was unaware 

of anything like that. 

I read over the transcript in light of the 

fact that it appeared there was some bias 

there on behalf of the Judge. [I] f 

that external report were the only basis upon 

which the Judge imposed the sentence he did, 

I might feel a little more strongly that your 

case would have greater impact. 

But I agree with [the State's PCR attorney], 

it is not the only thing that the Judge 

relied upon. There were a whole number of 

things, including arguments of the District 

Attorney and presentation of other victims, 

and notwithstanding Dr. Davis' report that 

there had been other victims of this 

gentleman, and I think clearly he was facing, 

as [the State's PCR attorney] just indicated, 

without the Plea Agreement, five counts of 

possibly 75 month[s] being all run 

consecutive. 

Even at sentencing he was potentially looking 

at 225 months, which both of you agree, the 

Judge indicated he wanted to impose, but 

because the District Attorney had stipulated 

to 150 months, that was what he imposed. 

I find from the evidence presented that Mr. 

Gonzalez failed to prove by a preponderance 

of the evidence that he received ineffective 

assistance of counsel. 

Respondent's Exhibit 129, pp. 16-18. 

Petitioner asserts that despite his attorney's surprise at 

the trial court's reliance on the unidentified expert, counsel 

should have objected, requested a continuance to enable counsel 

to locate and call rebuttal experts, and moved to recuse the 

9 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 9 of 11
trial Judge due to bias. 2 He claims that, contrary to the PCR 

court's decision, counsel's failure to object prejudiced him 

because the sentencing Judge made a point of recounting the 

expert opinion just prior to imposing sentence. He therefore 

reasons that the expert opinion formed a key basis for the 

Judge's view of the appropriate punishment in that case. 

The PCR court recognized the apparent bias of the sentencing 

Judge as well as the impropriety of considering the unidentified 

expert's opinion. It therefore focused upon the prejudice prong 

of Strickland, reasoning that the sentencing Judge's reference to 

the unidentified expert did not affect petitioner's sentence 

where the Judge also relied upon a variety of other, proper 

factors in imposing the 150-month sentence. A review of the 

record reveals that petitioner not only acknowledged abusing the 

minor victim between 2 0 and 3 0 times, but also told both a 

polygrapher as well as a psychosexual evaluator of additional, 

uncharged sexual abuse involving other minor children from his 

family leading to a psychosexual finding of pedophilia where 

petitioner had a "long history of sexual contact with minors 

within his own family." Respondent's Exhibit 111, pp. 18-19; 

Respondent's Exhibit 116, p. 9; Respondent's Exhibit 124, p. 20. 

The sentencing Judge was also perturbed by the fact that many of 

the victim's family members appeared more concerned for 

2 As the PCR court noted, recusal was not at issue in the PCR proceedings, 

Respondent's Exhibit 129, p. 17, and petitioner did not base his ineffective 

assistance of counsel claim on any failure of counsel to move for recusal. 

Respondent's Exhibit 131; Respondent's Exhibit 133. 

10 - OPINION AND ORDER 

Case 2:15-cv-02126-SI Document 32 Filed 01/25/17 Page 10 of 11
petitioner's well-being at sentencing than that of his victim. 

Respondent's Exhibit 105, pp. 24-25. 

Given the totality of the record before the sentencing 

court, including petitioner's admitted and lengthy history of 

familial child abuse, he failed to establish in his PCR 

proceedings that he likely would have received a lesser sentence 

had counsel objected to the court's consideration of the 

unidentified expert opinion. At a minimum, the court cannot 

conclude that the PCR court's reasoned decision was so erroneous 

that no reasonable jurist could agree with it. As a result, the 

PCR court's decision is neither contrary to, nor an unreasonable 

application of, clearly established federal law. 

CONCLUSION 

For the reasons identified above, the Petition for Writ of 

Habeas Corpus ( #2) is denied. The court does, however, issue a 

Certificate of Appealability as to petitioner's argued claim of 

ineffective assistance of counsel. 

IT IS SO ORDERED. 

/'V 

DATED this -iS day of January, 201 7. 

~~ United States District Judge 

11 - OPINION AND ORDER 

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