UNITED STATES DISTRICT COURT

 DISTRICT OF OREGON

JOSHUA THOMAS ALWINGER, 

 

 Petitioner, 2:14-01218-SU

 

 

 v. FINDINGS AND 

 RECOMMENDATION

JERI TAYLOR, 

 

 Respondent. 

 

SULLIVAN, Magistrate Judge.

Petitioner, an inmate in the custody of the Oregon

Department of Corrections, filed a petition for habeas corpus

relief under 28 U.S.C. §2254 alleging four grounds for relief.

Petition (#2). Respondent now moves to deny relief and dismiss

this proceeding on the ground that petitioner did not exhaust

state remedies with respect to his claims. Response (#25).

The trial court found petitioner guilty on one count of

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Sexual Penetration in the First Degree and sentenced

petitioner to 300 months incarceration. Exhibit 101.

Petitioner appealed asserting one assignment of error -

that “[t]he sentencing court erred in imposing a 300-month

‘mandatory minimum’ sentence pursuant to ORS 137.700(2)(b)(F)

on count one.” Exhibit 106, p. 5. The Oregon Court of

Appeals affirmed in a written opinion, and adhered to that

decision on reconsideration. Exhibits 108 and 111. Petitioner

did not seek Oregon Supreme Court review. 

Petitioner filed a petition for post-conviction relief

(PCR) alleging several grounds of ineffective assistance of

counsel and “state misconduct.” Exhibit 113. The PCR court

denied relief, the Oregon Court of Appeals affirmed without

opinion and the Oregon Supreme Court denied review. Exhibits

137 and 138. 

The petition in this case alleges four claims for relief. 

Respondent argues that petitioner “never presented any of

these claims to the Oregon Supreme Court in a manner in which

they would be considered on the merits,” and is procedurally

defaulted from doing so now. 

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

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state courts a "full and fair" opportunity to consider and

resolve all federal claims. Keeney v. Tomayo-Reyes, 504 U.S.

1, 10 (1992); Picard v. Connor, 404 U.S. 270, 275-76 (1971) 

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).

To “fairly present” a federal claim in state court, a

habeas petitioner must “include reference to a specific

federal constitutional guarantee, as well as a statement of

facts that entitle the petitioner to relief.” Gray v.

Netherland, 518 U.S. 152, 162-63 (1966); see also, Baldwin v.

Reese, 541 U.S. 27, 32 (2004) and Castillo v. McFadden, 399

F.3d 993, 1000 (9th Cir. 2005). 

Furthermore, the petitioner must have presented their

federal claim to the state courts in a procedural context in

which the claims merits will be considered. Castille v.

Peoples, 489 U.S. 346, 351-52 (1989) (claim not fairly

presented when raised for the first time on petition for

review to the state Supreme Court); Roettgen v. Copeland, 33

F.3d 36, 38 (9

th Cir. 1994); Turner v. Compoy, 827 F.2d 526,

529 (9th Cir. 1987). 

Accordingly, a claim is “fairly presented” to the state

courts

only if it was properly presented to (1) the state’s Supreme

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Court, (2) as a federal question, (3) in the correct petition

or brief, and (4) in a proper procedural context so that its

merits will be considered..

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

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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 Grounds One and Two petitioner alleges that his

confession was “coerced” and that there was “no evidence to

support penetration only hearsay and the coerced confession. 

On direct appeal, petitioner raised only one claim concerning

the proportionality of his sentence - and did not seek review

by the Oregon Supreme Court. Therefore his claims in Ground

One and Two were never presented to the Oregon Supreme Court.

In Ground Three petitioner alleges that his conviction

was obtained by “failure of the prosecution to disclose to the

defendant [evidence] favorable to the defendant,” and

references “doctors reports” that allegedly would have

demonstrated his innocence. 

Petitioner never raised such a claim, either on direct

appeal or in his PCR petition. Although petitioner alleged

“state misconduct” in his PCR petition, the claim made no

mention of “doctors reports.” Rather petitioner alleged that

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the prosecutor had failed to investigate the State’s

witnesses. 

In Ground Four petitioner alleges that his trial

attorneys were ineffective because the failed to “adequately

advocate” that his confession was “coerced.” In his PCR

proceeding petitioner alleged several claims of ineffective

assistance of counsel, but he did not allege that counsel was

ineffective for failing to adequately advocate that his

confession was coerced. Therefore, the claim in Ground Four

was never presented to the Oregon Supreme Court. 

Plaintiff is now barred under Oregon law from filing any

additional appeals or PCR proceedings

1 and is thus unable to

“fairly present” any additional claims to the Oregon Courts. 

Petitioner has not established 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. 

Based on all of the foregoing, petitioner Petition (#2)

1ORS 138 requires that direct appeals be filed not later than

30 days after the judgment or order appealed from was entered in

the register. ORS 138.650 requires that PCR appeals be filed

within 30 days after the entry of final judgment. ORS 2.520

requires petitions for review to the Oregon Supreme Court be filed

within 35 days from the date of the Court of Appeals’ decision. See

also, ORAP 9.05(2) (same) Finally, ORS 138.550(3) provides that all

PCR claims must be asserted in the original or amended petition

unless they could not reasonably have been asserted therein, and

any claims not so asserted are deemed waived.

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should be denied. The Clerk of the Court should be directed

to enter a judgment dismissing this proceeding with prejudice. 

Petitioner’s Petition (#2) 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

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.

 

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Certificate of Appealability

Should petitioner appeal, a certificate of appealability

should be denied as petitioner has not made a substantial

showing of the denial of a constitutional right. See, 28

U.S.C. § 2253(c)(2). 

DATED this ___ day of July, 2015.

Patricia Sullivan 

United States Magistrate Judge

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2nd

/s/ Patricia Sullivan

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