ANN KEN, District Judge.
Petitioner, an inmate in the custody of the Oregon Department of Corrections, filed a petition under 28 U.S.C. § 2254 challenging his convictions for six counts of Delivery of a Controlled Substance. Following a jury trial, petitioner was sentenced to consecutive sentences totaling 152 months of imprisonment. Exhibit 101.
Petitioner appealed his convictions, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 103-109.
Petitioner filed a petition for post conviction relief, but the Umatilla County Circuit Court denied relief, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 115-121.
Petitioner's petition in this proceeding alleges four grounds for relief. Respondent now moves to deny relief as follows: "First, relief should be denied in Ground Three as petitioner fails to present that claim as a federal issue. Second, relief should be denied on Grounds Two, Three, and Four as these claims were not fairly presented' to Oregon's highest court and cannot now be fairly presented' to that court; thus, they are procedurally defaulted. Third, insofar as petitioner's claims were presented to the Oregon State Courts in Grounds One and Three, relief on them was denied in decisions that were neither contrary to, ' nor unreasonable applications of, ' United States Supreme Court precedent." Response to Petition (#23) p. 2.
Under 28 U.S.C. § 2254(a), federal courts may entertain applications for habeas corpus relief by state prisoners "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See, Estelle v. McGuire , 502 U.S. 62, 67 (1991); Wainwright v. Goode , 464 U.S. 78, 83 (1983).
In Ground Three, petitioner alleges that the "[t]rial court denied petitioner a full and fair trial" because it denied a continuance.
Petitioner has not alleged a specific constitutional or other federal law violation in support of his claim in Ground Three and therefore, Ground Three fails to allege a claim cognizable under 28 U.S.C. § 2254.
Assuming this defect could be cured by amendment, the claim in Ground Three is barred because it is procedurally defaulted as discussed below.
Under 28 U.S.C. § 2254(b) (1), an application for a writ of habeas corpus "shall not be granted" unless "the applicant has exhausted the remedies available in the courts of the State[.]" Exhaustion occurs when a petitioner has given the state courts a "full and fair" opportunity to consider and resolve all federal claims. Keeney v. Tomayo-Reyes , 504 U.S. 1, 10 (1992). If a petitioner can present a claim to the state's Supreme Court, he must do so to properly exhaust that claim. O'Sullivan v. Boerckel , 526 U.S. 838, 844-45 (1999).
To "fairly present" a federal claim in state court, habeas petitioners must "include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief." Gray v. Netherland , 518 U.S. 152, 162-63 (1996).; see also, Castillo v. McFadden , 399 F.3d 993, 1000 (9th Cir. 2005); see also, Insyxiengmay v. Morgan , 403 F.3d 657, 668 (9th Cir. 2005) ("In [the Ninth Circuit], a petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law."); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (per curiam) (holding that, when a petitioner failed to cite federal case law or mention the federal constitution in his state court briefing, he did not alert the state court to the federal nature of his claims).
Furthermore, to properly exhaust a claim the petitioner must present the federal claim to the state courts in a procedural context in which the claims' merits will be considered. Castille v. Peoples , 489 U.S. 346, 351-52 (1989); Roettgen v. Copeland , 33 F.3d 36, 38 (9th Cir. 1984; Turner v. Compoy , 827 F.2d 526, 529 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).
If a petitioner has failed to present a federal constitutional claim to the state's highest court ( i.e., has failed to exhaust state remedies) and can no longer do so because of a procedural bar, that claim is procedurally defaulted. Boerckel , 526 U.S. at 848, citing Coleman v. Thompson , 501 U.S. 722, 731-32 (1991). Once a petitioner has procedurally defaulted a claim, federal habeas corpus review is barred unless the petitioner can demonstrate: (1) cause for the procedural default, and (2) actual prejudice from the failure. Edwards v. Carpenter , 529 U.S. 446, 451 (2000), Coleman , 501 U.S. at 750; see also, Wainwright v. Sykes , 433 U.S. 72 (1977); Murray v. Carrier , 477 U.S. 748 (1986); Hughes v. Idaho Bd. of Corr. , 800 F.2d 905 (9th Cir. 1986).
Cause for a procedural default exists only if petitioners "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists only if petitioners show that the procedural default "worked to [petitioner's] actual and substantial disadvantage." United States v. Frady ...