FILED
NOT FOR PUBLICATION DEC 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN KEITH DONOGHUE, No. 13-35946
Petitioner - Appellant, D.C. No. 2:11-cv-01046-SI
v.
MEMORANDUM*
JEFF PREMO, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted November 21, 2014
Portland, Oregon
Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.
Appellant Steven Donoghue appeals the district court’s denial of his petition
for habeas relief. We affirm.
Two of Donoghue’s claims, raised on direct appeal in a pro se brief, were
not considered by the Oregon Court of Appeals because the brief did not comply
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with a state procedural rule, ORAP 5.45. The district court determined that ORAP
5.45 was an independent and adequate state ground and held that federal review of
these claims was barred.
Generally, habeas claims may not be entertained by a federal court when a
state court has declined to address those claims because the petitioner failed to
satisfy a state procedural requirement and the state judgment rests on independent
and adequate state procedural grounds. Maples v. Thomas, 132 S. Ct. 912, 922
(2012). Donoghue argues that the basis for the state court decision was not
adequate because the rule has not been consistently followed, but the cases
Donoghue identifies to support his claim are distinguishable. He has identified no
example of the Oregon courts failing to apply the rule to a brief as non-conforming
as his.
A procedural default may be excused in some circumstances when a
petitioner has demonstrated cause and prejudice. See Coleman v. Thompson, 501
U.S. 722, 750 (1991). As the district court concluded, however, Donoghue has not
demonstrated cause.
The district court denied relief on Donoghue’s remaining claims because it
determined that Donoghue did not fully and fairly present these claims to the
2
Oregon Supreme Court. See Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir.
2014).
Donoghue contends that he satisfied that obligation by incorporating by
reference claims listed in a lengthy memo he attached to his pro se appellate brief.
He argues that the different claims were properly incorporated into his brief under
Farmer v. Baldwin, 205 P.3d 871 (Or. 2009) (en banc). We disagree.
In Farmer, this Court requested from the Oregon Supreme Court an answer
to a certified question regarding Balfour1 appellate briefs, which are governed by a
state procedural rule that does not apply here. In answering, the Oregon Supreme
Court held that the client-prepared part of a Balfour brief filed in the state court of
appeals could be incorporated by reference into that client’s petition for review to
the state supreme court. Farmer, 205 P.3d at 878.
The incorporation-by-reference allowed under Farmer does not logically
extend to the situation in this case, however. Donoghue attempted to incorporate
his pro se post-conviction relief trial memo and direct appeal pro se brief into both
his brief to the state court of appeals and into his petition for review to the state
supreme court. While the holding in Farmer may allow incorporation of part of a
Balfour brief in a petition for review, it does not allow a non-Balfour pro se brief to
1
State v. Balfour, 814 P.2d 1069 (Or. 1991)(en banc).
3
incorporate any type of document a litigant may think helpful at any stage in an
appeal.
In its order denying Donoghue’s claims, the Oregon Court of Appeals
referred only to the claims identified in the assignments of error in the appellate
brief and not to the claims that might have been raised in the attachments. Because
Donoghue failed to exhaust his collateral review claims in Oregon state court by
not fully and fairly presenting them, federal habeas review of those claims is
barred.
AFFIRMED.
4