Vincent Padgett v. Jean Hill

Ninth Circuit

Vincent Padgett v. Jean Hill

384 F. App'x 671

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 21, 2010

Docket08-35453

StatusUnpublished

This text of 384 F. App'x 671 (Vincent Padgett v. Jean Hill) 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.

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Vincent Padgett v. Jean Hill, 384 F. App'x 671 (9th Cir. 2010).

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Opinion

MEMORANDUM **

Vincent Wayne Padgett appeals the district court’s denial of his petition for habe- *672 as corpus relief. 28 U.S.C. § 2254. We affirm.

Padgett asserts that the district court erred when it decided that his failure to timely file his appeal from denial of post conviction relief in the Oregon Court of Appeals constituted a procedural default which barred federal habeas corpus relief. We disagree. In fact, due to an error on Padgett’s part, his Notice of Appeal was sent to the wrong court and, as a result, was filed with the Oregon Court of Appeals more than thirty days after entry of judgment in the Oregon Circuit Court. That violated the appeal time limit set by Oregon; 1 that limit is applied “without exception ” 2 and is both independent and adequate; 3 it is “ ‘well established and consistently applied.’ ” 4 Nor can it be said that this is one of those rare cases where application of the Oregon law was exorbitant and, therefore, inadequate as applied. See Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002). It does not present a situation where application of the law was peculiar and unexpected, or one over which Padgett had no control or responsibility. See id. at 387, 122 S.Ct. at 891. Padgett simply did not file in the proper court at the right time. Finally, Padgett has not spelled out cause and prejudice or a miscarriage of justice. See Powell v. Lambert, 357 F.3d 871, 874 (9th Cir.2004); see also McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provid *672 ed by 9th Cir. R. 36-3.

1

. Or.Rev.Stat. § 138.650 (2005).

2

. Miller v. Baldwin, 176 Or.App. 500, 32 P.3d 234, 236 (2001); see also Felkel v. Thompson, 157 Or.App. 218, 970 P.2d 657, 659 (1998).

3

. Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir.2009).

4

.Id. at 1207.

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MEMORANDUM **

Vincent Wayne Padgett appeals the district court’s denial of his petition for habe- *672 as corpus relief. 28 U.S.C. § 2254. We affirm.

Padgett asserts that the district court erred when it decided that his failure to timely file his appeal from denial of post conviction relief in the Oregon Court of Appeals constituted a procedural default which barred federal habeas corpus relief. We disagree. In fact, due to an error on Padgett’s part, his Notice of Appeal was sent to the wrong court and, as a result, was filed with the Oregon Court of Appeals more than thirty days after entry of judgment in the Oregon Circuit Court. That violated the appeal time limit set by Oregon; 1 that limit is applied “without exception ” 2 and is both independent and adequate; 3 it is “ ‘well established and consistently applied.’ ” 4 Nor can it be said that this is one of those rare cases where application of the Oregon law was exorbitant and, therefore, inadequate as applied. See Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002). It does not present a situation where application of the law was peculiar and unexpected, or one over which Padgett had no control or responsibility. See id. at 387, 122 S.Ct. at 891. Padgett simply did not file in the proper court at the right time. Finally, Padgett has not spelled out cause and prejudice or a miscarriage of justice. See Powell v. Lambert, 357 F.3d 871, 874 (9th Cir.2004); see also McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provid *672 ed by 9th Cir. R. 36-3.

1

. Or.Rev.Stat. § 138.650 (2005).

2

. Miller v. Baldwin, 176 Or.App. 500, 32 P.3d 234, 236 (2001); see also Felkel v. Thompson, 157 Or.App. 218, 970 P.2d 657, 659 (1998).

3

. Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir.2009).

4

.Id. at 1207.

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