White v. Palmateer

90 F. App'x 266

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2004
• Docket: No. 03-35454; D.C. No. CV-00-00619-REJ(JE)
• Status: Published

Opinion

MEMORANDUM

*

The district court did not err in concluding that Oregon state prisoner Lydell M. White procedurally defaulted his claim for relief under 28 U.S.C. § 2254. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). White failed to include the claim at issue — that counsel was ineffective for failing to object properly to White’s 800-month sentence for murder — in his post-conviction relief petition. Nor is the claim at issue “directly traceable to” or “within the scope of’ the claims White actually alleged in the petition. See Abbott v. Baldwin, 178 Or. App. 289, 36 P.3d 516, 520 (Or.Ct.App. 2001). Consequently, the claim is waived under Oregon law. See Or.Rev.Stat. § 138.550(3) (‘All grounds for relief claimed by petitioner ... must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived----”); Bowen v. Johnson, 166 Or. App. 89, 999 P.2d 1159, 1160-61 (Or.Ct. App.2000) (“[T]he allegations in the petition frame — indeed, limit — the issues for determination by the post-conviction court.”). White’s attempt to raise the issue in his state post-conviction memoranda is insufficient to “fairly present” it in the absence of an amendment to White’s post-conviction relief petition, see Or.Rev.Stat. § 138.590(5), or some indication that the state consented to litigate the issue. Cf. Banks v. Dretke, —U.S. -, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). The record reveals neither.

White makes no showing of cause or prejudice or actual innocence sufficient to excuse his default. See Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

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.