Steven Donoghue v. Jeff Premo

MEMORANDUM

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 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, - U.S. -, 132 S.Ct. 912, 922 , 181 L.Ed.2d 807 (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 nonconforming as his.

A procedural default may be excused in some circumstances when a…