                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 15 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DEREK ALLAN OFENHAM,                             No. 14-35994

              Petitioner - Appellant,            D.C. No. 2:13-cv-00006-HU

 v.
                                                 MEMORANDUM*
RICK COURSEY,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                       Argued and Submitted March 8, 2016
                                Portland, Oregon

Before: FISHER, BERZON, and WATFORD, Circuit Judges.

      Petitioner Derek Allan Ofenham appeals from the denial of his petition for

writ of habeas corpus. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The extremely narrow exorbitant application exception to procedural

default does not apply. See Lee v. Kemna, 534 U.S. 362 (2002). As to the Oregon

Court of Appeals’ conclusion regarding Ofenham’s claim concerning the need for

new Miranda warnings after the polygraph test (“second Miranda warning

argument”), Ofenham’s lawyer agreed at oral argument that had there been no

Stipulation Agreement, Ofenham’s second Miranda warning argument properly

would have been procedurally defaulted under Oregon’s preservation rule. There

were no sudden, extreme, or otherwise unique circumstances that prevented

Ofenham’s trial counsel from raising the second Miranda warning argument in his

motion to suppress or during the hearing on the motion to suppress.

      2. Ofenham’s primary submission is that the Oregon Court of Appeals’

construction of the post-conviction judgment was incorrect. The Oregon Court of

Appeals considered the context of the parties’ arguments in the post-conviction

court and the language of the post-conviction judgment. It concluded that the intent

was not “to waive all requirements of preservation. Rather, the parties and the

post-conviction court intended to enable defendant . . . to appeal the issues that he

had raised in the hearing on the motion to suppress.” The intent of the parties to a

contract is a question of fact. See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.

Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983); Malot v. Hadley, 86 Or. App.


                                           2
687, 689 (1987). On collateral review, “a determination of a factual issue made by

a State court shall be presumed to be correct. The applicant shall have the burden

of rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1). Ofenham has failed to provide clear and convincing evidence

that the Oregon Court of Appeals’ interpretation of the parties’ and post-conviction

court’s intent was incorrect.

      AFFIRMED.




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