United States District Court, D. Oregon
ANN AIKEN, District Judge.
Petitioner is in the custody of the Oregon Department of Corrections (ODOC) pursuant to a judgment from the Deschutes County Circuit Court after convictions for one count of Sexual Abuse in the First Degree and two counts of Attempted Sexual Abuse in the First Degree. Exhibit 101. After petitioner entered a plea of "guilty by way of Alvord plea, " the court imposed a sentence of 75 months on the count of Sexual Abuse, and consecutive 43-month sentences for each of the counts of Attempted Sexual Abuse. Id.
Petitioner appealed, but then voluntarily dismissed his appeal and did not seek review from the Oregon Supreme Court. Exhibits 106-108.
Petitioner filed a petition for post-conviction relief, but the Malheur County Circuit Court dismissed the petition without prejudice. Exhibit 111.
Petitioner filed a second Petition for Post-Conviction Relief, which the Malheur County Circuit Court denied. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 132-137.
Petitioner filed a petition under 28 U.S.C. § 2254 alleging four claims for relief. Petition (#1).
Respondent now moves to deny petitioner's petition on the ground that petitioner procedurally defaulted Grounds Two-Four, and that the claim alleged in Ground One was was denied in a decision that was neither "contrary to, " nor an "unreasonable application of, " United States Supreme Court precedent. Response to Petition (#12) p. 2. Respondent also argues that petitioner's claims should be denied on the merits. Id.
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).
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 a petitioner can "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 a petitioner shows 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 this case, petitioner alleges four grounds for relief: Ground One - ineffective assistance of counsel; Ground Two - conviction obtained by use of a coerced confession; Ground Three cruel and unusual punishment I disproportionate punishment; and, Ground Four - ORS 137.719 is a "bad law."
Petitioner voluntarily dismissed his direct appeal and alleged a single claim of ineffective assistance of counsel in his petition for post-conviction relief. Therefore the claims alleged in Grounds Two-Four have never been fairly presented to Oregon's appellate courts.
Because petitioner did not fairly present the claims alleged in Grounds Two-Four to Oregon's highest court, and the time for presenting new claims is past,  the claims alleged in Ground Two-Four are procedurally defaulted. Petitioner has not established any cause and prejudice for his procedural default or that he is entitled to the fundamental miscarriage of justice exception to the exhaustion ...