Stell v. Myers

Filing 12

OPINION AND ORDER. Respondent's motion to dismiss (#8) is GRANTED, and petitioner's petition for writ of habeas corpus (#2) is DISMISSED, without prejudice, for failure to exhaust. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 3/14/2011 by Judge Garr M. King. (gw)

Stell v. Myers

Doc. 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION TERRENCE K. STELL, ) ) Petitioner, ) ) v. ) ) PAULA MYERS, ) Superintendent, Columbia River) Correctional Institution, ) ) Respondent. ) Civil No. 10-1289-KI

OPINION AND ORDER

Terrence K. Stell SID #14667214 Columbia River Correctional Institution 9111 N.E. Sunderland Ave. Portland, Oregon 97211 Petitioner, Pro Se John R. Kroger Attorney General Jonathan W. Diehl Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, Oregon 97301-4096 Attorneys for Respondent KING, Judge. 1 -- OPINION AND ORDER

Dockets.Justia.com

Petitioner, an inmate at the Columbia River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition on the

basis that petitioner has failed to exhaust his available state remedies. granted. BACKGROUND On October 29, 2009, petitioner was convicted of Robbery in the Third Degree, Burglary in the Second Degree, Attempted Assault in the Fourth Degree, and Theft in the Third Degree. was sentenced to a 66-month term of incarceration. Petitioner His earliest For the reasons set forth below, respondent's motion is

release date is June 3, 2011, and his sentence expiration date is April 26, 2012. Petitioner filed a direct appeal on November 4, 2009. transcript was filed on January 21, 2010, and The

petitioner's

appellate counsel filed an opening brief on September 8, 2010. The appeal remains pending. DISCUSSION Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);

Coleman v. Thompson, 501 U.S. 722, 731 (1991); Picard v. Connor, 2 -- OPINION AND ORDER

404 U.S. 270, 275 (1971).

Although there is a strong presumption

in favor of requiring a prisoner to exhaust his state remedies, failure to do so is not jurisdictional. See Granberry v. Greer,

481 U.S. 129, 131 (1987); Simmons v. Blodgett, 110 F.3d 39, 41 (9th Cir.), cert. denied, 522 U.S. 892 (1997); Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993). Hence, the failure to exhaust may be excused if (1) "there is an absence of available exist that State render corrective such process"; or (2) to

"circumstances

process

ineffective

protect the rights of the applicant." (B)(i) & (ii).

28 U.S.C. § 2254(b)(1)

State remedies may be found to be "ineffective" in

rare cases where exceptional circumstances of peculiar urgency are shown to exist. F.2d at 672. See Granberry, 481 U.S. at 134; Hendricks, 993 Similarly, state remedies may be rendered

"ineffective" by extreme or unusual delay attributable to the state. Edelbacher v. Calderon, 160 F.3d 582, 586-87 & n.5 (9th Cir. 1998); Phillips v. Vasquez, 56 F.3d 1030, 1036 (9th Cir.), cert. denied, 516 U.S. 1032 (1995). In the instant proceeding, petitioner complains of appellate delay, and argues that state remedies are ineffective in light of the short length of his sentence, and the fact that he cannot seek state post-conviction relief until his direct appeal is resolved. Additionally, petitioner appears to argue that state remedies are ineffective by virtue of the fact that trial counsel failed to file 3 -- OPINION AND ORDER

an appeal from the revocation of petitioner's parole. Petitioner has failed to demonstrate that he has encountered undue appellate delay attributable to the state, or that he has suffered prejudice as a result. Moreover, petitioner's relatively

short sentence does not constitute an extraordinary circumstance justifying federal intervention. every state prisoner with a To hold otherwise would permit sentence to bypass state

short

remedies, a result which would be directly contrary to the strong presumption in favor of exhaustion. In sum, petitioner has failed to demonstrate that the delay he has encountered is either extreme, unusual, or attributable to the ineffectiveness petitioner has of not the state review that process. there are Additionally, exceptional

demonstrated

circumstances of peculiar urgency in his case to distinguish it from all other state convictions involving short sentences. The

fact that trial counsel may have rendered ineffective assistance of counsel by failing to file an appeal from the revocation of petitioner's parole has no relevance to the resolution of case. Accordingly, I decline to waive the exhaustion requirement. CONCLUSION Based on the foregoing, respondent's motion to dismiss (#8) is GRANTED, and petitioner's petition for writ of habeas corpus (#2) is DISMISSED, without prejudice, for failure to exhaust. Because

petitioner has failed to make a substantial showing of the denial 4 -- OPINION AND ORDER

of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED. DATED this 14th day of March, 2011. /s/ Garr M. King Garr M. King United States District Judge

5 -- OPINION AND ORDER