Temple v. Thompson

58 F. App'x 730

Opinion

MEMORANDUM

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Oregon state prisoner Daniel A. Temple appeals the district court’s denial of his 28 U. S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Manning v. Foster, 224 F.3d 1129, 1132 (9th Cir.2000), we affirm.¹

We have recently rejected Temple’s contention that, regardless of the contents of the petition for review, the Oregon Supreme Court considers all issues raised in briefs filed in the Oregon Court of Appeals. See Peterson v. Lampert, 319 F.3d 1153, 1157-58 (9th Cir.2003) (en banc).

We also reject Temple’s contention that his petition for review in fact raised his self-representation claim. In that petition he discussed only one claim, concerning the court’s failure to grant a mistrial, and in context his references to the arguments he made in the court of appeals relate only to that claim. There is no indication in the petition that Temple intended to raise his self-representation claim. Cf. Wells v. Maass, 28 F.3d 1005, 1008-09 (9th Cir. 1994) (concluding that two claims were exhausted because it was “apparent on the face of the petition for review that Wells intended to incorporate by reference both of the assignments of error raised in the Court of Appeals”).

Because Temple’s self-representation claim is not exhausted and cannot now be exhausted, the district court properly determined that the claim is procedurally defaulted. See Peterson, 319 F.3d at 1161.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1

. All pending motions are denied.