UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

KEVIN DUANE HUEY, 

Petitioner, 

v. 

GUY HALL, 

Respondent. 

COFFIN, Magistrate Judge. 

6:14-cv-01925-TC 

FINDINGS AND 

RECOMMENDATION 

Petitioner brings this habeas corpus proceeding under 28 

U.S.C § 2254, challenging his convictions for three counts of 

Violating a Court's Stalking Protective Order and two counts 

of misdemeanor Telephonic Harassment. Petition (#3). 

Petitioner alleges a single claim for relief: that the 

state of Oregon Stalking statute violates the First Amendment 

of the United States Constitution. Id. 

Respondent moves to deny relief and dismiss this 

1 - FINDINGS AND RECOMMENDATION 

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proceeding on the ground that petitioner did not fairly 

present his claim to the highest state court and it is now 

procedurally defaulted. Response (#19) p. 1. 

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). 

Stated otherwise, each claim raised in a habeas petition 

must have been given one complete round of the state's 

appellate review process. O'Sullivan v. Boerckel, supra at 

844-845, and the state courts must have had a full and fair 

opportunity to respond to any federal claim asserted by the 

petitioner. Keeney v. Tamayo-Reyes, supra at 10. 

In this case, petitioner presented a similar claim on 

his direct appeal. Exhibit 104, pp. 7-10. The Oregon Court of 

Appeals affirmed without opinion and petitioner did not seek 

review by the Oregon Supreme Court. 

The time for presenting the claim to the Oregon Supreme 

Court has expired. See, O.R.S. §2.520 (requiring petitions for 

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review to be filed not later than 25 days after a Court of 

Appeals decision) . 

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. 

3 - FINDINGS AND RECOMMENDATION 

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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). 

Petitioner has not alleged any cause and prejudice for 

his procedural default or established that he is entitled to 

the fundamental miscarriage of justice exception to the 

exhaustion requirement. 

Accordingly, petitioner's Pe ti ti on ( #3) should be denied. 

The Clerk of the court should be directed to enter a judgment 

dismissing this proceeding. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4 (a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen ( 14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

4 - FINDINGS AND RECOMMENDATION 

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determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Certificate 0£ Appea1abi1ity 

Should petitioner appeal, a certificate 0£ appealability 

should be denied as petitioner has not made a substantial 

showing 0£ the denial 0£ a constitutional right. See, 28 

U.S.C. § 2253(c) (2). 

DATED this l[ day of 

Thomas 

United 

5 - FINDINGS AND RECOMMENDATION 

Judge 

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