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Hendershot v. Nooth

United States District Court, D. Oregon

November 13, 2017

ROGER LANCE HENDERSHOT, Petitioner,
v.
MARK NOOTH, Respondent.

          Roger Lance Hendershot Warner Creek Correctional Facility Petitioner, Pro Se

          Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General, Attorneys for Respondent

          FINDINGS AND RECOMMENDATION

          PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Using a Child in a Display of Sexually Explicit Conduct and Luring a Minor. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be denied.

         BACKGROUND

         Petitioner in this case sent a 12-year-old boy in appropriate text messages and emails, some of which contained pornographic images. He had also persuaded the boy to send him pictures of the boy's genitals. As a result, the Marion County Grand Jury charged petitioner with three counts of Using a Child in a Display of Sexually Explicit Conduct and two counts of Luring a Minor. Respondent's Exhibit 102.

         Petitioner elected to enter a guilty plea to two counts of Using a Child in the display of Sexually Explicit Conduct and one count of Luring a Minor. Respondent's Exhibit 103. In exchange, the State dropped the remaining charges. At petitioner's subsequent sentencing hearing, the court imposed a sentence totaling 140 months in prison. Respondent's Exhibit 110, p. 60.

         Petitioner took a direct appeal, but ultimately moved to voluntarily dismiss the appeal. Respondent's Exhibit 104.

         Petitioner next filed for post-conviction relief (“PCR”) in Malheur County where the PCR court denied relief. Respondent's Exhibit 141. The Oregon Court of Appeals affirmed the PCR court without opinion, and the Oregon Supreme Court denied review. Hendershot v. Nooth, 268 Or.App. 372, 342 P.3d 1126 (2014), rev. denied, 357 Or. 299, 353 P.3d 594 (2015).

         On January 25, 2016, petitioner filed this federal habeas corpus case in which he raises thirteen grounds for relief pertaining to the performance of his trial attorney, and two grounds for relief predicated on the alleged denial of due process. Respondent asks the court to deny relief on the Petition because: (1) petitioner failed to fairly present, and has now procedurally defaulted, almost all of his claims; and (2) the state courts reasonably denied relief upon his only preserved claim of ineffective assistance of trial counsel.

         DISCUSSION

         I. Exhaustion and Procedural Default

         A. Standards

         A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).

         A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray ...


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