Birch v. Thompson

224 F. App'x 705

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2007
• Docket: No. 05-36216
• Status: Published

Opinions

MEMORANDUM

**

The district court properly denied Appellant Martin Birch’s (Birch) habeas petition.

Birch timely filed his federal habeas petition, because his signed petition relates back to his originally filed unsigned petition. See Becker v. Montgomery, 532 U.S. 757, 765, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001); see also Fed.R.Civ.P. 11(a).

Birch fails to establish an ex post facto violation, as the Oregon Board of Parole and Post-Prison Supervision’s decision comported with the standard applicable at the time of Birch’s commitment offenses. See Or.Rev.Stat. (O.R.S.) § 144.125 (1981) (1989).¹

Birch’s claim regarding the adequacy of the psychologist’s diagnosis is waived, because Birch did not present this claim to the district court. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994) (“Habeas claims that are not raised before the district court in the petition are not cognizable on appeal.”) (citation omitted).

Birch fails to provide clear and convincing evidence that the state court’s factual determination regarding the adequacy of the diagnosis was unreasonable. See Anderson v. Terhune, 467 F.3d 1208, 1212 (9th Cir.2006) (“[S]tate-court factual findings must be presumed to be correct, and the habeas petitioner must rebut the presumption of correctness by clear and convincing evidence.”) (citations, alteration, and internal quotation marks omitted); see also Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir.2000) (en banc) (“Federal habeas relief does not lie for errors of state law.”) (citation, alteration, and internal quotation marks omitted).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . It is unclear as to whether the Board considered Birch’s commitment offenses to have occurred in 1981 or 1989. However, O.R.S. § 144.125 was the same for both years. See O.R.S. § 144.125(3) (1981) (1989).