Derek Allan Ofenham v. Rick Coursey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEREK ALLAN OFENHAM,
Petitioner - Appellant,
v.
RICK COURSEY,
Respondent - Appellee.
No. 14-35994
D.C. No. 2:13-cv-00006-HU
MEMORANDUM*
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.
FILED
MAR 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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.
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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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