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Coon v. Nooth

United States District Court, D. Oregon

March 11, 2019

MARK NOOTH, Respondent.

          Oliver W. Loewy Assistant Federal Public Defender, Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice Attorneys for Respondent



         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Murder and Tempering with a Witness. For the reasons that follow, the Corrected Amended Petition for Writ of Habeas Corpus (#47) is denied.


         Petitioner had a history of violent relationships with women. In January 2001, he assaulted his girlfriend, Patty Flynn, resulting in his arrest. The following month, he was out at a tavern with Flynn when he hit her in the jaw. Respondent's Exhibit 108, p. 6. Flynn took a taxi to her mother's house where Flynn visited with her five-year-old son. Petitioner arrived sometime thereafter, and the mother told him to leave. Flynn's mother, son, and Flynn's mother's neighbor all witnessed Petitioner threaten Flynn, telling her that he was going to kill her. Id. at 7. The neighbor called the police, prompting Petitioner to leave the area, and Flynn refused to talk to the officers who arrived on the scene.

         After the officers departed, Flynn left her mother's home claiming that she needed cigarettes, but she took a taxi to Petitioner's home. Shortly thereafter, Flynn was dead. Petitioner called his sister, Jerrie, asking for help with a "problem" he had. Jerrie thought Petitioner sounded suicidal and asked police to conduct a welfare check.

         Petitioner called his friend, Maggie, and told her "he had to get out of there because he was going to jail, and that he wanted to kill himself. ..." Respondent's Exhibit 201, p. 20. Maggie went over to Petitioner's home where he grabbed her by both forearms and told her, "Don't look. Don't look. Flynn is dead on the bed." Id. at 23. Maggie responded, "Damn you Jim. You brought me into the middle of a murder scene." Id. at 24. Petitioner apologized to her, and "just kept saying he was sorry. He didn't mean to do it. It was an accident." Id. He told Maggie that he needed to "dump" the body somewhere. When Maggie told him that they should call the police, Petitioner said he needed more time and indicated that he needed to leave town. Id. at 24-25.

         Petitioner told Maggie that he had smothered or suffocated Flynn, and that it had been his intention to scare her and that he hadn't meant to kill her. Id. at 32. Maggie drove Petitioner to the home of friends named Penny and Kenneth, who drove Petitioner to another friend's home. During the drive with Penny and Kenneth, Petitioner told them, "I don't know if you guys know how serious this is . . . but I killed Flynn last night." Id. at 94. Kenneth told him not to say anything more, and Petitioner responded that he had smothered her with a pillow, and that it had been an accident. Id. Kenneth once again told Petitioner not to say anything more.

         When authorities showed up at Petitioner's house to conduct the welfare check Jerrie requested, they found Flynn's body. In the meantime, Petitioner had decided to leave Central Oregon, boarded a Greyhound bus bound for Portland, and shaved off his mustache to change his appearance along the way. Respondent's Exhibit 108, p. 16. Law enforcement arrested Petitioner upon his arrival in Portland.

         The Deschutes County Grand Jury indicted Petitioner on three counts of Aggravated Murder, one felony count of Tampering with a Witness, and one misdemeanor count of Assault. Respondent's Exhibit 104. The State posited three theories underlying the Aggravated Murder charges: (1) Petitioner had previously been convicted of Manslaughter in the First Degree in California when he shot a man in the back; (2) Flynn was a witness against Petitioner for the pending assault from January 2001; and (3) Petitioner caused Flynn's death while torturing her. The State was confident it "had ample evidence to support every one of those theories in this case" and noted that "as time went by from the date of this incident in February, the state's case actually became stronger in a number of areas." Respondent's Exhibit 108, p. 13.

         The Deschutes County Circuit Court appointed Dennis Hachler and Geoffrey Gokey to represent Petitioner. On October 4, 2001, the trial court conducted a settlement conference where the State offered him a reduced sentence in exchange for a plea to Murder. The settlement conference was highly charged, and according to Petitioner's Declaration that he submitted during his post-conviction relief ("PCR") proceedings, the Judge who presided over the settlement conference indicated he would not hesitate to sign Petitioner's death warrant if it came across his desk. Respondent's Exhibit 124, p. 22. Petitioner also declared that Hachler told him

to quit my damn crying. Then he yelled, "What the hell is wrong with you! They're giving you your last chance! You don't even have to admit any guilt-you can just plead Alford pleas!" He walked over to where I was seated and stopped. Looking down at me with an angry stare, Hachler yelled, "Don't make us help them kill you! Take the damned deal!"

Id. at 27.

         The State's offer called for Petitioner to enter an Alford plea to one count of Murder and one count of Tampering with a Witness and waive his right to appeal. In exchange, the State removed the Aggravated Murder charges and stipulated to a sentence of: (1) 300 months imprisonment and 36 months of post-prison supervision on the Murder conviction; and (2) a consecutive upward departure sentence of 60 months on the Tampering conviction, with 24 months supervision to be served concurrently with that of the Murder term. Respondent's Exhibit 106. This represented a particularly positive outcome for Petitioner where he not only escaped the capital nature of an Aggravated Murder trial, but also negotiated a sentence that was less than the statutorily-required life sentence with a 300-month minimum for Murder. See ORS 163.115(5).

         Petitioner entered his plea the day of the settlement conference, and sentencing was scheduled to occur three weeks later. Very shortly after entering his plea, Petitioner contacted his attorneys and informed them he was dissatisfied with his plea because he had been unduly pressured to accept it. He asked counsel to file a motion to withdraw the plea. Respondent's Exhibit 213, p. 71. Petitioner indicated he might represent himself, but Gokey told him that he would try to locate separate counsel, and reiterated that he felt that the plea was still in Petitioner's best interests. Id. at 72. Gokey contacted the Oregon State Bar the following day, concerned about a potential conflict with his client. He and Hachler then decided to get another attorney to come in and talk with Petitioner:

Well, I didn't know anybody. Mr. Hachler knew Mark Rader and I'd heard of Mark Rader, and so Mr. Hachler contacted Mark Rader and then contacted the powers to be at that time, the State Court Administrator's office about getting somebody over there. And that lawyer, he came over and me (sic) a copy of the file for him. I think I even gave him some of our original materials and he went to meet the client. I'm not sure if I met with Mr. Coon again. I don't think I did.

Id. at 74-75.

         According to Rader, Hachler contacted him and "said that [Petitioner] was a very troublesome client. He wants me to review the discovery and meet with Mr. Coon to discuss his case and attempt to get him back in line so he'll go through with sentencing now scheduled for 10/25." Respondent's Exhibit 143, p. 1. Rader, in turn, successfully sought authorization for a particular investigator who, as Rader put it, "very often has a way with these guys so maybe between the two of us we can talk Coon into staying with the deal." Id.

         None of the attorneys involved with Petitioner's case moved to withdraw the plea, and the case proceeded to sentencing. Gokey and Hachler accompanied Petitioner to his sentencing, but did not represent him during that proceeding. The sentencing Judge personally told Gokey in chambers that he was upset about the settlement conference and he was

upset about the process; and he said he thought maybe it was unethical. And this was in chambers with the District Attorney sitting there, and the District Attorney said we want to stick with this judge or something like that. He said, well, if he wants out of this he's getting out of this; and that was in chambers to us. And . . . then I sat and watched him, my recollection is five times he asked Mr. Coon if he wanted to withdraw his plea and he said, no, he's fine. That's with Mr. Rader.

         Respondent's Exhibit 213, pp. 86-87.

         When sentencing commenced, Rader represented Petitioner while Gokey and Hachler sat inside the courtroom and observed the proceedings. Id. at 86. At the court's request, Rader stated on the record how he had come to represent Petitioner at sentencing. Rader informed the court that Petitioner wished to go forward with the plea and sentencing. Respondent's Exhibit 108, p. 23. The sentencing judge twice more inquired as to Petitioner's willingness to proceed:

Court: I just want to make sure that your client is prepared to go forward today without any hesitation, he still is comfortable with the plea agreement he entered into.
Rader: Your Honor, Mr. Coon just explained to me that he is comfortable going forward with it.
Court: And he does not wish to file a motion to withdraw his plea?
Rader: No, Your Honor, he does not.
Court: All right, let's go ahead.

Id. at 24-25.

         The judge proceeded to sentence Petitioner in accordance with the plea deal to 300 months in prison and 36 months of post-prison supervision on the Murder conviction, and 60 consecutive months in prison on the Witness Tampering conviction with a concurrent 24-month term of post-prison supervision. The Judgment the court issued erroneously stated that Petitioner was guilty of Aggravated Murder instead of Murder, and in February 2002 the State moved to amend the judgment to correct the error. The State also asked the court to ...

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