Vincent Padgett v. Jean Hill , 384 F. App'x 671 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VINCENT WAYNE PADGETT, ) No. 08-35453
)
Petitioner – Appellant, ) D.C. No. 3:05-CV-01707-PA
)
v. ) MEMORANDUM *
)
JEAN HILL, )
)
Respondent – Appellee. )
)
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted June 8, 2010 **
Portland, Oregon
Before: FERNANDEZ, McKEOWN, and PAEZ, Circuit Judges.
Vincent Wayne Padgett appeals the district court’s denial of his petition for
habeas corpus relief. 28 U.S.C. § 2254. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Padgett asserts that the district court erred when it decided that his failure to
timely file his appeal from denial of post conviction relief in the Oregon Court of
Appeals constituted a procedural default which barred federal habeas corpus relief.
We disagree. In fact, due to an error on Padgett’s part, his Notice of Appeal was
sent to the wrong court and, as a result, was filed with the Oregon Court of Appeals
more than thirty days after entry of judgment in the Oregon Circuit Court. That
violated the appeal time limit set by Oregon;1 that limit is applied “without
exception”2 and is both independent and adequate;3 it is “‘well established and
consistently applied.’”4 Nor can it be said that this is one of those rare cases where
application of the Oregon law was exorbitant and, therefore, inadequate as applied.
See Lee v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820(2002). It does not present a situation where application of the law was peculiar
and unexpected, or one over which Padgett had no control or responsibility. See
id. at 387, 122 S. Ct. at 891. Padgett simply did not file in the proper court at the
right time. Finally, Padgett has not spelled out cause and prejudice or a
1
Or. Rev. Stat. § 138.650 (2005).
2
Miller v. Baldwin, 32 P.3d 234, 236 (Or. Ct. App. 2001); see also Felkel v.
Thompson, 970 P.2d 657, 659 (Or. Ct. App. 1998).
3
Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir. 2009).
4
Id. at 1207.
2
miscarriage of justice. See Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004);
see also McCleskey v. Zant, 499 U.S. 467, 494–95, 111 S. Ct. 1454, 1470, 113 L.
Ed. 2d 517 (1991).
AFFIRMED.
3