United States District Court, D. Oregon
ORDER TO DISMISS
Michael W. Mosman United States District Judge
brings this habeas corpus action pursuant to 2 8 U.S.C.
§ 2254. Because Petitioner has not exhausted his
remedies available in Oregon's state courts, the Petition
for Writ of Habeas Corpus (#1) is summarily dismissed. See
Rule 4, Rules Governing Section 2254 Cases.
recounted in Grimsley v. Cain, 2:19-cv-00881-SU, in
2015 Petitioner pleaded guilty in Douglas County to Attempted
Assault and Unlawful Use of a Weapon. The Circuit Court
imposed a 21-month term of incarceration on the Attempted
Assault conviction, and a five-year term of supervised
probation for the weapons charge.
September 9, 2016, the Oregon Department of Corrections
released Petitioner from custody on his assault charge at
which point he began serving his term of probation on the
weapons charge. Petitioner violated the terms of his
probation, thus on February 26, 2018, the Douglas County
Circuit Court revoked his probation and returned him to
November 21, 2018, Petitioner filed a 42 U.S.C. § 1983
action seeking damages and injunctive relief based upon what
he believes to be the incorrect calculation of his sentence.
On December 20, 2018, Judge McShane dismissed that case
without prejudice on the basis that Petitioner could not seek
money damages without first seeking a correction of his
sentence by way of a federal habeas corpus case. Grimsley
v. Oregon, et al., 3:l8-cv-02019-MC.
6, 2019, Petitioner filed for habeas corpus relief in which
he appeared to challenge the legality of his underlying
guilty plea and resulting judgment, and also appeared to
challenge the revocation of his parole. Because Petitioner
was still pursuing a direct appeal, and after allowing
Petitioner an opportunity to show cause, the Court dismissed
his case without prejudice for lack of exhaustion.
Grimsley v. Cain, 2:19-cv-00881-SU. The Court
subsequently denied Petitioner's Motion for
Reconsideration, and advised him that he could not file any
additional such motions in that case.
than two months after filing for reconsideration in
2:19-cv-00881-SU, Petitioner filed this 28 U.S.C. § 2254
habeas corpus case on October 7, 2019. He does not challenge
the validity of his underlying plea, nor does he challenge
the revocation of his parole. Instead, he challenges the
execution of his state sentence insofar as he claims that the
Oregon Department of Corrections has unlawfully stripped him
of between 2 6 and 2 8 months credit for time served.
federal courts "shall entertain an application for a
writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws•or treaties of the United States." 28 U.S.C.
§ 2254(a). This Court may summarily dismiss a habeas
corpus petition "[i] f it plainly appears from the face
of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief." Rule 4, Rules
Governing Section 2254 Cases; see also O'Bremski v.
Maass, 915 F.2d 418, 420 (9th Cir. 1990), cert,
denied, 498 U.S. 1096 (1991); Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
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 habeas corpus claims pursuant to 2 8
U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509,
519-519 (1982) . The exhaustion doctrine is designed "to
avoid the unnecessary friction between the federal and state
court systems that would result if a lower federal court
upset a state court conviction without first giving the state
court system an opportunity to correct its own constitutional
errors." Preiser v. Rodriguez, 411 U.S. 475,
490 (1973) .
case, Petitioner does not dispute that he failed to exhaust
his state-court remedies. Instead, he argues that his current
challenge to the execution of his sentence is irrelevant to,
and cannot be included within, his pending direct appeal
stemming from his parole revocation. He contends that the
Court should not require him to pursue any proceedings in
state court because "there is no vehicle in the lower
state courts to correct the fraud" pertaining to the
execution of his sentence. Memo in Support (#10, p. 9).
assuming Petitioner's direct appeal remedy is inadequate
to challenge the computation of his prison sentence in the
wake of his parole revocation, he would still be able to
avail himself of the state habeas corpus remedy. See
Haskins v. Palmateer, 18 6 Or.App. 159, 163, 63 P.3d
31, rev. denied,335 Or. 510, 73 P.3d 291 (2003)
("Habeas corpus is an appropriate remedy when a
petitioner has 'no other timely remedy available,'
and there is a 'need for immediate judicial scrutiny'
of the claim."). Accordingly, Petitioner does have an
available state-court remedy through which to present his
claims to Oregon's state courts. To the extent he