United States District Court, D. Oregon
Lovelady Eastern Oregon Correctional Institution Pro Se.
F. ROSENBLUM Attorney General, SAMUEL A. KUBERNICK Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
J. Brown United States Senior District Judge.
is currently in the custody of the Oregon Department of
Corrections. He brings this habeas corpus proceeding pursuant
to 28 U.S.C. § 2254. For the reasons set forth below,
Petitioner's Petition for Writ of Habeas Corpus (ECF No.
2) is DENIED.
January 12, 2011, a Washington County jury convicted
Petitioner of two counts of Robbery in the First Degree, two
counts of Robbery in the Second Degree, and two counts of
Unlawful Use of a Weapon. Resp't Exs. (ECF No. 21), Exs.
101, 104. The charges arose out of Petitioner's theft of
several l bottles of Oxycontin from a Rite Aid pharmacy in
Tigard, Oregon. The trial court sentenced Petitioner
to a total of 135 months of imprisonment. Resp't Exs.
101, 105. Petitioner directly appealed his convictions, but
the Oregon Court of Appeals affirmed without opinion.
State v. Lovelady, 255 Or.App. 826 (2013) .
Petitioner did not timely file a Petition for Review with the
Oregon Supreme Court, and the appellate judgment issued on
June 6, 2013. Resp't Ex. 110. 
then sought state post-conviction relief ("PCR").
Lovelady v. Coursey, Umatilla County Circuit Court
No. CV140343. Following an evidentiary hearing, the PCR trial
court denied relief. Resp't Ex's 120-131. On appeal,
the Oregon Court of Appeals affirmed without opinion, and the
Oregon Supreme Court denied review. Lovelady v.
Taylor, 275 Or.App. 1031 (2015).
February 6, 2017, Petitioner filed a Petition for Writ of
Habeas Corpus (ECF No. 2) in this Court, alleging two grounds
for relief. In Ground One, Petitioner alleges his conviction
was "obtained by a violation of the privilege against
self-incrimination, " because the trial court permitted
the state to introduce Petitioner's inculpatory
statements at trial. Pet. at 4-5. In Ground Two, Petitioner
alleges trial counsel was ineffective for "fail[ing] to
object to police officers changing [their] testimony in front
of the jury after police just testified they did not know how
[Petitioner] understood his Miranda rights." Id.
urges this Court to deny all relief on the basis that both
grounds are procedurally defaulted and lack merit. In his
supporting brief Petitioner does not address procedural
a state prisoner must exhaust all available state court
remedies either on direct appeal or through collateral
proceedings before a federal court may consider granting
habeas corpus relief. See 28 U.S.C. § 2254(b)(1)(A). A
state prisoner satisfies the exhaustion requirement by
"fairly presenting" his federal claim to the
appropriate state courts at all stages afforded under state
law, in the manner required by the state courts, thereby
affording the state courts an opportunity to correct alleged
violations of its prisoner's federal rights. Baldwin
v. Reese, 541 U.S. 27, 29 (2004); Casey v.
Moore, 386 F.3d 896, 915-16 (9th Cir. 2004);
Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir.
2005). In Oregon, where review in the highest court is
discretionary, a prisoner must still petition the highest
court for review in order to exhaust his claim properly.
See O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999).
state prisoner's claim is procedurally defaulted, federal
habeas corpus review is barred unless he can demonstrate: (1)
cause for the procedural default, and (2) actual prejudice
will result if the Court does not consider the claim.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Procedural default of available state remedies may also be
excused when the failure to consider the claims will result
in a miscarriage of justice on a colorable showing of actual
innocence. McQuiggin v. Perkins, 133 S.Ct. 1924,
1928 (2013); House v. Bell, 547 U.S. 518, 536-37
(2006); Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
Ground One, Petitioner alleges the trial court erred by
allowing the state to present Petitioner's inculpatory
statements to the jury. According to Respondent,
Petitioner's Ground One is procedurally defaulted because
it was not raised at trial or on direct appeal. Resp't
Resp. (ECF No. 41) at 10-11. Petitioner does ...