FINDINGS AND RECOMMENDATION
THOMAS M. COFFIN, Magistrate 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 three counts of Rape in the First Degree, three counts of Sodomy in the First Degree, and nine counts or Sexual Abuse in the first Degree. After a jury found petitioner guilty of these crimes, the court sentenced petitioner to a total of 300 months imprisonment.
Petitioner appealed his convictions, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Curt denied review. 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.
Petitioner's petition in this proceeding alleges four grounds for relief. Respondent now moves to deny the petition and dismiss this proceeding on the grounds that Ground Four is procedurally defaulted and Grounds One, Two and Three were correctly denied in state court decisions entitled to deference under 28 U.S.C. § 2254 (d) and (e) (1). Response to Petition (#21) p. 1.
The facts giving rise to petitioner's convictions are set forth in respondent's Response and need not be repeated here.
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 , 456 U.S. 152, 170 (1982). Demonstrating a mere possibility of prejudice is insufficient. Id.
Procedural defaults may also be excused by demonstrating a "fundamental miscarriage of justice." Edwards v. Carpenter , 529 U.S. 446, 451 (2000). To establish the fundamental miscarriage of justice exception to the exhaustion requirement requires a showing of actual innocence. Schlup v. Delo , 513 U.S. 298, 329 (1995); Calderon v. Thompson , 523 U.S. 538, 559 (1998).
In Ground Four, petitioner alleges that his trial counsel was ineffective in that he "failed to interview the brothers of the victim who could have provided both character evidence, and a motive for the victim to lie" and "failed to demurrer (sic) to the indictment where it was overbroad and did not allow petitioner an adequate defense."
Petitioner did not allege either of these claims in his PCR petition or raise them on appeal from the PCR judgment and thus did not "fairly present" them to the Oregon Supreme Court, and cannot now do so. Petitioner has not establish cause and prejudice for his default or that he is entitled to the fundamental miscarriage of justice exception to the exhaustion requirement. Accordingly, Ground Four is procedurally defaulted and should be denied.
Under the Antiterrorism and Effective Death Penalty Act of 1966 (AEDPA), habeas corpus relief may "not be granted with respect to any claim that was adjudicated on the merits in state court proceedings, " unless the adjudication:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...