Hamilton v. Miller ( 2024 )

No. 465 July 3, 2024 611
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DONALD W. HAMILTON,
Petitioner-Appellant,
v.
Jamie MILLER,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
20CV35970; A180755
J. Burdette Pratt, Judge.
Submitted April 16, 2024.
Jason Weber and O’Connor Weber LLC filed the brief for
appellant. Section B of the brief was prepared by appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Chief Judge and Egan, Judge.
LAGESEN, C. J.
Affirmed.
612 Hamilton v. Miller
LAGESEN, C. J.
Petitioner appeals from a judgment denying his
amended petition for post-conviction relief. His appointed
counsel filed a brief pursuant to ORAP 5.90 and State v.
Balfour, 311 Or 434, 814 P2d 1069 (1991). The brief contains
a Section B. See ORAP 5.90(1)(b). The superintendent filed
an answering brief responding to the arguments raised in
Section B, and petitioner filed a pro se reply brief. Reviewing
under ORAP 5.90(3) for “arguably meritorious issues,” we
affirm.1
A jury found petitioner guilty of first-degree sodomy
and first-degree sexual abuse. The trial court imposed man-
datory minimum sentences of 300 months in prison on both
counts to be served concurrently. Petitioner appealed and
we affirmed without opinion. State v. Hamilton, 256 Or App
761, 302 P3d 1218, rev den 354 Or 490 (2013). Petitioner
sought post-conviction relief, and we affirmed the post-
conviction court’s denial of that relief. Hamilton v. Nooth,
288 Or App 702, 406 P3d 238 (2017), rev den, 362 Or 699(2018). Petitioner sought habeas corpus relief in federal
court, but the district court denied relief, and the Ninth
Circuit affirmed. Hamilton v. Miller, No. 21-35326, 2022 WL
1223994 (9th Cir Apr 26, 2022) (nonprecedential memoran-
dum disposition).
Petitioner filed a second petition for post-conviction
relief in October 2020, and an amended petition in August
2021, arguing that trial counsel failed to inform him of a
plea offer of 150 months in prison, and that he first became
aware of the offer during his federal habeas corpus case.
Based on trial counsel’s alleged failure to convey the plea
offer, petitioner argues that he received ineffective assis-
tance of counsel. The post-conviction court denied the peti-
tion determining, among other things, that petitioner’s
claim that his trial attorney did not make him aware of the
offer was not credible.
1
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel. See, e.g., State v. Yother, 310 Or App 563, 484 P3d 1098 (2021) (deciding
matter submitted through Balfour process by two-judge panel); Ballinger v.
Nooth, 254 Or App 402, 295 P3d 115 (2012), rev den, 353 Or 747 (2013) (same).
Nonprecedential Memo Op: 333 Or App 611 (2024) 613
Having reviewed the record, including the trial
court file and the transcript of the hearings, and having
reviewed the Balfour brief, including petitioner’s arguments
in Section B of the brief, the superintendent’s response, and
petitioner’s reply, we have identified no arguably meritori-
ous issues.
Affirmed.