                    UNITED STATES COURT OF APPEALS                      FILED
                            FOR THE NINTH CIRCUIT                        SEP 7 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
DARREN HOGUE,                                    No.   17-35393

                Petitioner-Appellant,            D.C. No. 2:12-cv-02300-CL
                                                 District of Oregon,
 v.                                              Pendleton

MARK NOOTH,                                      ORDER

                Respondent-Appellee.

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,* District
Judge.

      The panel has voted to deny Petitioner-Appellant’s petition for panel

rehearing. Judges Wardlaw and Owens have voted to deny Petitioner-Appellant’s

petition for rehearing en banc, and Judge Márquez has so recommended.

      The full court has been advised of the petition for rehearing en banc, and no

judge of the court has requested a vote on it.

      The panel has voted to amend the memorandum disposition filed on July 11,

2018. The superseding amended memorandum disposition will be filed

concurrently with this order.

      The petitions for panel rehearing and for rehearing en banc are denied. No



      *
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
further petitions for rehearing or petitions for rehearing en banc will be entertained.




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                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         SEP 7 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

DARREN HOGUE,                                    No.   17-35393

                Petitioner-Appellant,            D.C. No. 2:12-cv-02300-CL

 v.
                                                 AMENDED MEMORANDUM*
MARK NOOTH,

                Respondent-Appellee.

                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                              Submitted July 9, 2018**
                                 Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,*** District
Judge.

      Darren Hogue, an Oregon state prisoner, appeals from the denial of his

petition for a writ of habeas corpus. As the parties are familiar with the facts, we


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1. Petitioner’s waiver of any collateral challenge to his conviction or

sentence does not strip this court of jurisdiction under 28 U.S.C. § 2254 because

his petition challenges that waiver’s validity on ineffective-assistance grounds.

Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005).

      2. The Oregon post-conviction-relief (“PCR”) court adjudicated petitioner’s

ineffective-assistance claim “on the merits,” and 28 U.S.C. § 2254(d) therefore

applies. In addition to finding that petitioner had failed to file his state habeas

petition within his appeal waiver’s sixty-day deadline, the PCR court also found

“that petitioner was of sound mind, and that he executed the waiver of post

conviction remedies and collateral relief freely, voluntarily and knowingly.” This

invocation of the test for the constitutional validity of guilty pleas, see North

Carolina v. Alford, 400 U.S. 25, 31 (1970), indicates that the court “understood

itself to be deciding a question with federal constitutional dimensions,” Johnson v.

Williams, 568 U.S. 289, 305 (2013), in turn indicating that the court sought to

address petitioner’s claim on its merits.

      The lack of an express reference to Strickland v. Washington, 466 U.S. 668

(1984), or Hill v. Lockhart, 474 U.S. 52 (1985), does not indicate otherwise: even

if contrary to clearly established federal law, the PCR court’s application of the



                                            2
due-process “voluntary and knowing” test indicates that it sought to render a

judgment on petitioner’s claim based on “the intrinsic rights and wrongs of [the]

case as determined by matters of substance, in distinction from matters of form.”

Johnson, 568 U.S. at 302 (emphasis and alteration removed) (quoting Black’s Law

Dictionary 1199 (9th ed. 2009)).

      Contrary to petitioner’s argument, the PCR court’s use of the term

“dismissal” in disposing of his petition sheds no light on whether the court

adjudicated petitioner’s claim “on the merits”; Oregon law uses the term

“dismissal” to describe the adverse disposition of a state habeas petition even when

the petition is resolved on its merits. See Or. Rev. Stat. § 34.680(1); Dunn v. Hill,

156 P.3d 72, 76 (Or. Ct. App. 2007). Finally, we reject petitioner’s reliance on

respondent’s state-court briefing, which does not overcome the express indications

in the PCR court’s decision that it evaluated petitioner’s claim “based on the

intrinsic right and wrong of the matter.” Johnson, 568 U.S. at 303.

      3. Petitioner offers no clear and distinct argument that the PCR court’s

adjudication of the merits of his claim “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or that it “was based on an unreasonable

determination of the facts” under 28 U.S.C. § 2254(d). He has therefore waived

any argument that he has overcome that provision. See Avila v. L.A. Police Dep’t,



                                          3
758 F.3d 1096, 1101 (9th Cir. 2014).

      Petitioner raises Lafler v. Cooper, 566 U.S. 156, 172–73 (2012), for the first

time in his petition for rehearing or rehearing en banc. Under longstanding circuit

precedent, petitioner’s reliance on that case is waived “because at no point in this

litigation until the petition for rehearing did [he] argue that we should apply

[Lafler], or even consider it.” Picazo v. Alameida, 366 F.3d 971, 971–72 (9th Cir.

2004); see also, e.g., Fields v. Palmdale Sch. Dist., 447 F.3d 1187, 1190 (9th Cir.

2006) (per curiam) (“We do not consider on rehearing new issues previously not

raised, briefed or argued.”).

      4. Because 28 U.S.C. § 2254(d) governs, and because petitioner has waived

any argument that the state PCR court’s resolution of his claim was either contrary

to or an unreasonable application of clearly established federal law, our inquiry is

restricted to the factual record before the state courts, and petitioner is not entitled

to an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 182–85 (2011);

see also 28 U.S.C. § 2254(d)(2) (restricting federal habeas review to “the evidence

presented in the State court proceeding”).

      AFFIRMED.




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