Lux v. Fhuere

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2026
• Docket: 23-4019
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EVAN P. LUX, No. 23-4019 D.C. No. Petitioner - Appellant, 6:21-cv-00004-IM v. MEMORANDUM*

COREY FHUERE, Superintendent, Oregon State Penitentiary,

Respondent - Appellee.

Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding

Argued and Submitted February 5, 2026 Portland, Oregon

Before: BEA, CHRISTEN, and DESAI, Circuit Judges.

Evan P. Lux appeals the district court’s order denying his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Because the parties are familiar with

the facts, we do not recount them here. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. We review de novo the denial of a petition for writ of habeas

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. corpus. Earp v. Davis, 881 F.3d 1135, 1142 (9th Cir. 2018). We review de novo

the district court’s dismissal of habeas claims on the ground that they “are

procedurally barred by an independent and adequate state ground.” Carter v.

Giurbino, 385 F.3d 1194, 1196 (9th Cir. 2004). Here, we “look through” to the

post-conviction trial court’s opinion, which is “the last related state-court decision

that . . . provide[s] a relevant rationale.” Wilson v. Sellers, 584 U.S. 122, 125

(2018). We affirm the district court’s order denying Lux’s petition.

This court certified one issue for appeal: whether the district court erred in

concluding that Lux’s ineffective assistance of trial counsel claim was procedurally

defaulted by an independent and adequate state ground. “Federal courts will not

generally review a question of federal law decided by a state court if its decision

rests on a state law ground that is independent of the federal question and adequate

to support the judgment.” King v. LaMarque, 464 F.3d 963, 965 (9th Cir. 2006).

The “state rule must be clear, consistently applied, and well-established at the time

of petitioner’s purported default.” Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009)

(citation modified).

There are “exceptional cases” in which the “exorbitant application of a

generally sound rule renders the state ground inadequate to stop consideration of a

federal question.” Lee v. Kemna, 534 U.S. 362, 376 (2002). Lux’s case does not

present such “exceptional” circumstances. First, the Superintendent bore his

2 23-4019 burden of establishing that Oregon’s pleading rule was “firmly established and

regularly followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (citation modified);

see also Bowen v. Johnson, 999 P.2d 1159, 1160 (Or. Ct. App. 2000), rev. den., 10

P.3d 943 (Or. 2000). Second, the application of Oregon’s pleading rule is not

“exorbitant” in Lux’s case. See Lee, 534 U.S. at 381–85. Accordingly, we

conclude that Lux’s ineffective assistance of trial counsel claim is procedurally

defaulted by an adequate and independent state ground.

Lux requested that we expand the certificate of appealability and consider

the uncertified issue—the merits of his ineffective assistance of counsel claim—if

we were to conclude that he did not procedurally default his claim for relief. We

decline to expand the certificate of appealability because the procedural default

forecloses our review of the merits. 28 U.S.C. § 2254(d).

AFFIRMED.

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