Olonzie Clemman, Jr. v. Board of Parole & Post-Prisonsupervision , 407 F. App'x 143 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OLONZIE CLEMMAN, JR., No. 09-35842
Petitioner - Appellant, D.C. No. CV-08-00081-PA
v.
MEMORANDUM *
BOARD OF PAROLE AND POST-
PRISON SUPERVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted December 9, 2010
Seattle, Washington
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.**
Olonzie Clemman, Jr., (“Petitioner”) appeals from the district court’s
dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We sua
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuirt Rule 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge
for the Southern District of California, sitting by designation.
sponte grant a certificate of appealability on the issues raised by Petitioner on
appeal. See Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc).
However, we affirm the district court’s decision.
The district court erred in holding that Petitioner had failed to fairly present
his federal claims to the Oregon Supreme Court. Petitioner was seeking review of
the Oregon Court of Appeals’ dismissal of his judicial-review proceedings on
procedural grounds. To the extent Petitioner was required to inform the Oregon
Supreme Court of his federal claims, Petitioner sufficiently did so by identifying
his federal claims and providing the factual and legal bases for his claims in his
Petition for Review. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per
curiam) (expressing doubt whether federal claims needed to be presented in an
appendix where the petitioner was seeking review of the post-conviction court’s
denial of petitioner’s leave to file an amended complaint containing the federal
claims); Insyxiengmay v. Morgan, 403 F.3d 657, 669 n.5 (9th Cir. 2005)
(questioning whether the petitioner was required to present the merits of his federal
claims to the Washington Supreme Court because that court declined petitioner’s
request to reverse the court of appeals’ dismissal on procedural grounds and allow
the claims to proceed in the court of appeals).
We affirm on the alternate ground that Petitioner’s habeas claims are
procedurally barred by Oregon’s appellate fugitive disentitlement rule (Oregon
2
Rule of Appellate Procedure (ORAP) 8.05(3)). The rule was firmly established in
all significant respects. Any uncertainty regarding the burden of proof as to the
element of surrender did not render the rule inadequate. “We decline . . . to require
a state court to articulate every permutation of every rule before it can invoke
procedural default - such a rigid construct of the procedural default doctrine
frustrates its purpose and impairs our system of federalism.” Bargas v. Burns, 179
F.3d 1207, 1213 (9th Cir. 1999).
Petitioner’s argument that prior to State v. Fettel, 150 P.3d 1076 (Or. Ct.
App. 2007), it was unclear whether an arrest was a “surrender” is unpersuasive. In
Fettel, the Court of Appeals looked to the ordinary definition of “surrender” and
“ha[d] no difficulty deciding that a defendant has not ‘surrendered’ for purposes of
ORAP 8.05(3) unless he or she has voluntarily given himself or herself over to the
custody or control of law enforcement authorities.” Id. at 1077. Petitioner has not
established that there was any confusion on the matter prior to Fettel. Indeed, in
State v. Nofziger, 138 P.3d 57, 58 (Or. Ct. App. 2006) (per curiam), the Court of
Appeals dismissed an appeal pursuant to ORAP 8.05(3) because the defendant did
not “surrender,” but, rather, was “arrested.”
Petitioner contends that the appellate fugitive disentitlement rule was
inconsistently applied. Petitioner has not, however, satisfied his burden of
“asserting specific factual allegations that demonstrate the inadequacy of the state
3
procedure, including citation to authority demonstrating inconsistent application of
the rule.” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). The cases cited
by Petitioner do not demonstrate inconsistent application of the requirement that a
defendant intend to evade justice before he or she can be deemed to have
absconded.
In sum, the appellate fugitive disentitlement rule was an adequate and
independent state procedural ground for dismissing Petitioner’s claims. Petitioner
has not overcome the procedural default by demonstrating both cause excusing his
procedural default and actual prejudice resulting therefrom. See McCleskey v.
Zant, 499 U.S. 467, 494 (1991). The procedural bar was imposed as a result of
Petitioner’s decision to leave the work center without permission while his
judicial-review proceeding was pending, not any “external impediment.” Id. at
497. Therefore, Petitioner’s federal habeas claims are procedurally barred.
AFFIRMED.
4