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Dominguez v. Nooth

United States District Court, Ninth Circuit

December 3, 2013

JOSE DOMINGUEZ, Petitioner,
v.
MARK NOOTH, Respondent.

ORDER

ANN AIKEN, District Judge.

Petitioner is in the custody of the Oregon Department of Corrections after a stipulated facts trial convictions for Rape in the First Degree, Sexual Abuse in the Second Degree and Assault in the Fourth Degree.

Petitioner directly appealed his convictions, but the Oregon Court of Appeals dismissed the appeal on petitioner's motion and petitioner did not petition for review by the Oregon Supreme Court. Exhibits 106-109.

Petitioner filed an Amended Petition for Post-conviction Relief (Exhibit 101), but the Umatilla County Circuit Court dismissed the petition on petitioner's motion. Exhibit 113. Petitioner appealed and the Oregon Court of Appeals affirmed without opinion. And the Oregon Supreme Court denied review. Exhibits 114-118.

Petitioner filed a petition under 28 U.S.C. ยง 2254 alleging four grounds for relief. Petition (#1). Respondent now moves to deny relief and dismiss this proceeding. Response (#21).

In Ground One, petitioner alleges that he was denied his right of appeal. However, as noted above, petitioner filed direct appeals of his convictions but subsequently moved to dismiss the appeals and the Oregon Court of Appeals granted petitioners motion. Exhibit 109.

Petitioner also appealed the PCR trial court judgment and the appeal was considered by the Oregon Court of Appeals. Exhibits 114, 118.

Accordingly, petitioner's claim in Ground One fails as a factual matter.

In Ground Four petitioner "wonders if his file was padded using other peoples names/cases to make me look bad." and asks the court to "check this and see." Petition (#1) p. 7.

Petitioner's speculation that his file may have been "padded" is unsupported by any specific allegation of fact or any evidence in the record before the court. Accordingly, Ground Four fails to state a claim for relief. See, Jones v. Gomez , 66 F.3d 199, 204-05 (9th Cir. 1995) ["conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief"].

In Ground Two petitioner alleges that his trial counsel was inadequate because in he represented to the court that petitioner had agreed to a stipulated facts trial. In Ground Four petitioner alleges that his convictions were obtained by "stipulated facts he did not sign" and that he "did not understand the whole process."

Under the Antiterrorism and Effective Death Penalty Act of 1966 (AEDPA), habeas corpus relief may "not be granted with respect to any claim that was adjudicated on the merits in state court proceedings, " unless the adjudication:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2.) resulted in a decision that was based on an unreasonable determination of the facts in light of evidence presented at the State ...

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