Widmer v. Belleque

256 F. App'x 112

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2007
• Docket: No. 06-35797
• Status: Published

Opinion

MEMORANDUM

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Jan Widmer, an Oregon state prisoner, appeals the denial of his habeas corpus petition under 28 U.S.C. § 2254 on the ground that his claims were procedurally barred. He contends that state post-conviction counsel’s alleged errors in failing properly to investigate the case and in filing a “no-merit” brief in the Oregon Court of Appeals establish cause for his procedural default. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Because there is no constitutional right to counsel in post-conviction proceedings, post-conviction counsel’s constitutional ineffectiveness is not considered cause for the purpose of excusing a procedural default. Coleman v. Thompson, 501 U.S. 722, 757, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Custer v. Hill, 378 F.3d 968, 974 (9th Cir.2004).

Widmer contends that due to post-conviction counsel’s errors, counsel did not act in furtherance of the litigation, and therefore ceased to act as Widmer’s agent. This contention is foreclosed by Coleman. See 501 U.S. at 753-54, 111 S.Ct. 2546 (1991) (holding that attorney error does not end agency relationship).

Widmer also contends that the state’s failure to appoint “suitable counsel,” as required by Or.Rev.Stat. § 138.590(4), makes the state responsible for his procedural default. This contention lacks merit because only a violation of the federal right to effective assistance of counsel amounts to cause. See Bonin v. Vasquez, 999 F.2d 425, 430-31 (9th Cir.1993).

AFFIRMED.

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