United States v. 2010-06-21 | 08-35453 | VINCENT PADGETT V. JEAN HILL | nonprecedential | memorandum…

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
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.
FILED
JUN 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

Or. Rev. Stat. § 138.650 (2005).1
Miller v. Baldwin, 32 P.3d 234, 236 (Or. Ct. App. 2001); see also Felkel v.2
Thompson, 970 P.2d 657, 659 (Or. Ct. App. 1998).
Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir. 2009).3
Id. at 1207.4
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; that limit is applied “without1
exception” and is both independent and adequate; it is “‘well established and2 3
consistently applied.’” Nor can it be said that this is one of those rare cases where4
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

-- 2 of 3 --

3
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 of 3 --