Kelly Gettling v. Jeff Premo
Opinion
Opinion
MEMORANDUM
Kelly Gene Gettling, an Oregon state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Our review is de novo, Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir.2014), and we affirm.
Gettling claims that he is entitled to habeas relief because he is actually innocent, because his trial counsel furnished ineffective assistance of counsel (“LAC”) by allowing him to plead to a kidnapping charge that was not supported by sufficient evidence, and because both his trial and appellate counsel were ineffective for subsequently failing to challenge the sufficiency of the evidence of the kidnapping conviction. We address only the first two claims, because the district court did not issue a certificate of appealability on the third claim and Gettling did not follow the procedure delineated in our rules for requesting the expansion of a certificate of appealability. See Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir.2009). Gettling does not dispute that he procedurally defaulted on these first two claims. We conclude that he has not established cause and prejudice to excuse this default.