Robert Grubbs v. Hoyt C. Cupp

Ninth Circuit

Robert Grubbs v. Hoyt C. Cupp

693 F.2d 866, 1982 U.S. App. LEXIS 23763

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 29, 1982

Docket81-3307

StatusPublished

This text of 693 F.2d 866 (Robert Grubbs v. Hoyt C. Cupp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Robert Grubbs v. Hoyt C. Cupp, 693 F.2d 866, 1982 U.S. App. LEXIS 23763 (9th Cir. 1982).

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Opinion

PER CURIAM.

The appeal in this denial of habeas corpus relief raises the question whether the petitioner failed to exhaust state remedies. 28 U.S.C. § 2254.

Oregon has a comprehensive post-conviction relief statute which affords state prisoners relief similar to that which can be sought in federal court when constitutional defects in state court convictions are alleged. Or.Rev.Stat, 138.510 et seq.

The prisoner did not press his collateral attack either to the Oregon Court of Appeals or to the state Supreme Court. He says he was advised by counsel that a petition for review in the state system would have been futile. He filed a petition for habeas corpus in federal court after receiving a letter from his counsel saying that counsel could, do no more for him.

Exhaustion of state remedies, as required by 28 U.S.C. § 2254(b), includes an application to the state’s highest court, even if in some cases the effort is futile. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th *867 Cir 1981); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979).

The cause is remanded to the district court for that court to determine whether the prisoner’s failure to seek post-conviction relief in the state courts, or his failure to-appeal, constituted deliberate bypass of an available state remedy or whether he can show that his failure should be excused and cause and prejudice found. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 S.Ct. 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Ventura v. Cupp, 690 F.2d 740 (9th Cir., 1982).

Vacated and remanded.

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PER CURIAM.

The appeal in this denial of habeas corpus relief raises the question whether the petitioner failed to exhaust state remedies. 28 U.S.C. § 2254.

Oregon has a comprehensive post-conviction relief statute which affords state prisoners relief similar to that which can be sought in federal court when constitutional defects in state court convictions are alleged. Or.Rev.Stat, 138.510 et seq.

The prisoner did not press his collateral attack either to the Oregon Court of Appeals or to the state Supreme Court. He says he was advised by counsel that a petition for review in the state system would have been futile. He filed a petition for habeas corpus in federal court after receiving a letter from his counsel saying that counsel could, do no more for him.

Exhaustion of state remedies, as required by 28 U.S.C. § 2254(b), includes an application to the state’s highest court, even if in some cases the effort is futile. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th *867 Cir 1981); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979).

The cause is remanded to the district court for that court to determine whether the prisoner’s failure to seek post-conviction relief in the state courts, or his failure to-appeal, constituted deliberate bypass of an available state remedy or whether he can show that his failure should be excused and cause and prejudice found. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 S.Ct. 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Ventura v. Cupp, 690 F.2d 740 (9th Cir., 1982).

Vacated and remanded.

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Bluebook (online)

693 F.2d 866, 1982 U.S. App. LEXIS 23763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-grubbs-v-hoyt-c-cupp-ca9-1982.

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