Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1987)

MEMORANDUM^** 

Roy Stephen Joseph appeals pro se the district court's denial of his habeas corpus petition. The district court concluded that it lacked jurisdiction to consider Joseph's request for habeas corpus relief because Joseph had failed to exhaust all available state remedies. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

Joseph was convicted of drunk driving and hit and run on September 11, 1986 in the District Court for Multnomah County, Oregon. He first attempted to appeal the conviction pro se by filing a notice of appeal in the Multnomah County District Court. The notice was timely. However, under Oregon law, a notice of appeal must also be filed in the Oregon Court of Appeals. Or.Rev.Stat. 19.023(3); 138.081(2). Since Joseph failed to meet the latter requirement, the notice was invalid.

Joseph's court-appointed attorney, Zack M. Lorts, subsequently filed a notice of appeal in the proper courts. However, the Oregon Court of Appeals did not receive the notice until October 14, 1986 and Lorts failed to obtain proof of mailing. Under Oregon law, the notice of appeal must be filed within 30 days after the conviction. Or.Rev.Stat. 19.026(1); 138.071(1). If the notice of appeal is received by mail after 30 days, it must be accompanied by proper proof of mailing. Or.Rev.Stat. 19.028(1). Since Lorts failed to secure proof that he mailed the notice on or before October 11, 1986, the Oregon Court of Appeals dismissed the appeal as untimely.

By letter dated November 7, 1986, Lorts notified Joseph that his appeal had been dismissed and advised Joseph that his remaining remedy was to seek post-conviction relief. See Oregon Post-Conviction Hearing Act, Or.Rev.Stat. 138.510-138.680. Joseph disregarded Lort's advice and instead filed a pro se habeas corpus petition in the Oregon Supreme Court. On December 3, 1986, the supreme court denied the petition on the procedural ground that Joseph had failed to exercise the adequate remedy of a post-conviction relief proceeding.

Accordingly, Joseph filed a pro se petition for post-conviction relief in the Circuit Court for Marion County, Oregon on March 18, 1987. However, the circuit judge ordered that Joseph be represented by appointed counsel and that a formal petition for post-conviction relief be filed by the appointed counsel, Velda H. Rogers. On May 20, 1987, Rogers filed an amended petition for post-conviction relief on Joseph's behalf. She failed, however, to raise all the claims originally raised in Joseph's pro se petition. In a letter dated June 2, 1987, Joseph chastised Rogers for the omissions and announced his intention to petition the Oregon Supreme Court, and the federal courts if necessary, regarding her conduct. The next day, Joseph moved the circuit court to dismiss his post-conviction relief petition without prejudice. The court granted the motion. Joseph then filed a habeas corpus petition in federal district court.

STANDARD OF REVIEW

We review the district court's denial of Joseph's habeas corpus petition de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

DISCUSSION

Federal habeas applicants must exhaust available state remedies before filing habeas corpus petitions in federal court. 28 U.S.C. § 2254.¹  We have held that a petitioner can satisfy the exhaustion requirement in one of two ways: 1) by presenting the state supreme court with a fair opportunity to rule on the merits; or 2) by showing that no state remedies remain available. Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983). Joseph contends that he has fulfilled the exhaustion requirement under either method.

Joseph argues that he fairly presented his claim to the Oregon Supreme Court by petitioning the court for habeas corpus relief. Joseph therefore concludes that he satisfied the exhaustion requirement even though the supreme court did not reach the merits of his petition. Joseph cites our decision in Middleton v. Cupp, 768 F.2d 1083 (9th Cir. 1985) as support for his argument.

Because Middleton is clearly distinguishable from the case at bench, Joseph's reliance upon it is misplaced. In Middleton, petitioner Raymond Edward Middleton sought and obtained direct appellate review of his case in the Oregon state courts. On appeal, he contended that the trial court's admission of evidence about a polygraph test and a related jury instruction violated his due process rights. The Oregon Court of Appeals reversed Middleton's conviction on the ground that evidence concerning the polygraph was inadmissible, but ruled that Middleton had waived his right to object to the jury instruction. The Oregon Supreme Court reversed the court of appeals and reinstated Middleton's conviction on the ground that the admission of the polygraph evidence was harmless error. The supreme court, however, agreed that Middleton had waived his objection to the jury instruction. Middleton then filed a federal habeas corpus petition. On appeal to this court, the state argued that Middleton had failed to exhaust his state remedies because the Oregon Supreme Court did not rule on the merits of Middleton's claim that the jury instruction was unconstitutional. We held that Middleton had nevertheless fairly presented that claim to the Oregon Supreme Court.

Unlike Middleton, Joseph failed to obtain direct appellate review of his conviction in either the Oregon Court of Appeals or the Oregon Supreme Court. Instead, Joseph filed a petition in the Oregon Supreme Court pursuant to its discretionary original jurisdiction in habeas corpus proceedings. Or.Const.Art. VII (Amended) Sec. 2. Furthermore, in Joseph's case, the supreme court dismissed the petition entirely on procedural grounds, while in Middleton's case, the court reviewed some of Middleton's claims on the merits. Middleton is therefore inapposite.

Moreover, we have specifically held that the presentation of a habeas corpus petition to the Oregon Supreme Court, which is denied on procedural grounds, does not satisfy the exhaustion requirement. Sweet v. Cupp, 640 F.2d 233, 237-238 (9th Cir. 1981); see also Kellotat v. Cupp, 719 F.2d 1027, 1030-1031 (9th Cir. 1983) (mere presentation of interlocutory appeal to the Oregon Supreme Court does not create a fair opportunity to rule on the merits).

In Sweet, petitioner James Arthur Henderson failed to obtain direct appellate review of his conviction in the Oregon state courts. He also failed to avail himself of the remedy provided by the Oregon Post-Conviction Hearing Act (Or.Rev.Stat. 138.510-138.680). Instead, Henderson filed a habeas corpus petition in the Oregon Supreme Court. The supreme court summarily denied the petition without opinion. Because we found that Henderson had an available remedy under the post-conviction relief statutes and that the Oregon Supreme Court had a longstanding practice of declining habeas corpus jurisdiction when alternative remedies existed in the lower courts, we held that Henderson's petition to the supreme court did not present the court with a fair opportunity to rule on the merits, and thus did not satisfy the exhaustion requirement.

We find Sweet to be indistinguishable from the case at bench. Accordingly, we hold that Joseph has not provided the Oregon Supreme Court with a fair opportunity to rule on the merits of his claims.

II. Availability of Oregon Post-Conviction Remedies

It follows from our conclusion above that we must also reject Joseph's argument that Oregon post-conviction remedies are unavailable to him. Specifically, Joseph contends that Or.Rev.Stat. 138.071(4) bars him from seeking post-conviction relief in the state courts. That section provides in relevant part:

(4) (a) Upon motion of a defendant, the Court of Appeals shall grant the defendant leave to file a notice of appeal after the [30 day time limit] if:

(A) The defendant, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the defendant personally; and

(B) The defendant shows a colorable claim of error in the proceeding from which the appeal is taken.

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(e) The denial of a motion under paragraph (a) of this subsection shall be a bar to post-conviction relief under ORS 138.510 to 138.680 on the same ground, unless the court provides otherwise.

Or.Rev.Stat. 138.071(4). Joseph argues that his habeas corpus petition to the Oregon Supreme Court functioned as a motion under Or.Rev.Stat. 138.071(4) (a). Consequently, he argues that when the supreme court denied his habeas corpus petition, it denied his 138.071(4) (a) motion, and thus barred him from post-conviction relief pursuant to Or.Rev.Stat. 138.071(4) (e).

We disagree. The language of Or.Rev.Stat. 138.071(4) (a) is unambiguous: motions made under that section must be addressed to the Oregon Court of Appeals, not the Oregon Supreme Court. In addition, because the Oregon Constitution limits the jurisdiction of the Oregon Supreme Court, that court may not review a 138.071(4) (a) motion which has not first been decided by a lower court. See Or.Const.Art. VII Sec. 6. Furthermore, even if the supreme court were empowered to hear and decide a 138.071(a) motion, its denial of Joseph's habeas corpus petition cannot fairly be read as a denial of a 138.071(4) (a) motion. Rather, the court simply declined to hear the habeas petition on the ground that Joseph had an adequate alternative remedy in the lower courts. Moreover, even if the supreme court did deny Joseph's habeas petition pursuant to Or.Rev.Stat. 138.071(4) (a), Or.Rev.Stat. 138.071(4) (e) clearly states that "... denial of a motion under paragraph (a) ... shall be a bar to post-conviction relief ... unless the court provides otherwise." Or.Rev.Stat. 138.071(4) (e) (emphasis added). Not only did the court provide otherwise, the court specifically informed Joseph that his habeas petition was being denied because Joseph had a sufficient remedy by way of a post-conviction relief proceeding. It strains credulity to assume that the supreme court denied the habeas petition on the ground that Joseph had failed to exercise an available remedy and then prevented him from exercising the very remedy it suggested he pursue.

In fact, Joseph followed the supreme court's suggestion by subsequently filing a post-conviction relief petition in the Marion County Circuit Court. That action belies his argument here since he apparently discerned no impediment then to his right to seek post-conviction relief and since he was in fact not prevented from pursuing the petition by the circuit court.

Nevertheless, due to his dissatisfaction with his lawyer and the state system in general, Joseph later asked the court to dismiss his petition. Because the court dismissed the petition without prejudice and because post-conviction relief remains available to Joseph indefinitely under Or.Rev.Stat. 138.510(2), Joseph has an available state remedy which he has failed to exhaust. Consequently, the exercise of federal jurisdiction at this time would be improper. The petition for habeas relief is denied.

AFFIRMED.