Roman Tatarinov v. Jeff Premo , 533 F. App'x 778 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMAN T. TATARINOV, No. 12-35184
Petitioner - Appellant, D.C. No. 3:09-cv-01377-HU
v.
MEMORANDUM*
JEFF PREMO,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted July 11, 2013**
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Roman Tatarinov’s sentence for his conviction for identity theft was
enhanced because of his prior involvement in similar activity, a fact found by the
sentencing judge but not proven to a jury. Tatarinov claims that this was a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of his Sixth Amendment right to a jury trial, but he made no objection
until his appeal.
The Oregon Court of Appeals considered Tatarinov’s Sixth Amendment
argument under Oregon’s plain error rule—Oregon Rule of Appellate Procedure
5.45(1)—which considers (1) if there was an obvious constitutional error and (2)
whether the court should exercise its discretion to correct the error. See State v.
Tatarinov, 120 P.3d 1253, 1254 (Or. Ct. App. 2005) (“Tatarinov I” (per curiam)).
After the Oregon Court of Appeals initially granted relief, the case was
remanded by the Oregon Supreme Court for reconsideration in light of State v.
Ramirez, 173 P.3d 817 (Or. 2007). See State v. Tatarinov, 195 P.3d 64 (Or. 2008).
On remand, the Oregon Court of Appeals considered whether, even assuming that
there was an obvious constitutional error, it should exercise its discretion to review
the claim. State v. Tatarinov, 205 P.3d 79, 80–81 (Or. Ct. App. 2009) (“Tatarinov
II”). In deciding whether to exercise its discretion, the Oregon Court of Appeals
took account of “numerous considerations, including ‘the competing interests of
the parties; the nature of the case; the gravity of the error; [and] the ends of justice
in the particular case.’” Id. at 80 (quoting Ailes v. Portland Meadows, Inc., 823
P.2d 956, 959 n.6 (Or. 1991)). Because “the record indicates that defendant had
extensive, ongoing involvement in activities related to identity theft and forgery,”
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and because Tatarinov did not contest that fact, the Oregon Court of Appeals
declined to correct the error. Id. at 81.
Tatarinov sought habeas relief in federal court, but the district court denied
his petition. The adequate and independent state ground doctrine bars federal
courts from considering a federal constitutional argument on habeas review if “a
state court declined to address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S.
722, 730 (1991). The Oregon Court of Appeals rejected Tatarinov’s claim based
on its consideration of the equitable interests of the parties in his case, which is
independent of federal law. See Nitschke v. Belleque, 680 F.3d 1105, 1108 (9th
Cir. 2012) (holding that Oregon’s plain error review is independent of state law).
The Oregon plain error rule is also an “adequate” state ground because it is
“firmly established and regularly followed.” Walker v. Martin, 131 S. Ct. 1120,
1127 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60–61 (2009)). The fact that
Oregon clarified its rule while Tatarinov’s case was on direct appeal does not
render it inadequate. See Kindler, 558 U.S. at 63–66 (Kennedy, J., concurring).
Even if the exact contours of the doctrine were not clarified until Ramirez,
Tatarinov had no reasonable expectation that he could default his claim but still
obtain review on appeal.
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AFFIRMED.
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