Milton Ventura v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

This is an appeal from the denial of a petition for habeas corpus. It nicely illustrates certain difficulties with the exhaustion of state remedies requirement.

Federal law requires exhaustion of all state remedies. 28 U.S.C. § 2254 (b)-(c) (1976); Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198, 1201-02 , 71 L.Ed.2d 379 (1982). Remedies that appear not to have been exhausted, such as the appeal of a conviction to the state’s highest court, see Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 , 102 S.Ct. 1722 , 72 L.Ed.2d 142 (1982), may in fact not have been available. Or remedies not employed, although available, may nonetheless be capable of being raised because either the failure to exhaust was a failure to appeal that did not constitute a deliberate bypass, see Fay v. Noia, 372 U.S. 391, 438-39 , 83 S.Ct. 822, 848-49 , 9 L.Ed.2d 837 (1963); Wainwright v. Sykes, 433 U.S. 72 , 88 n.12, 97 S.Ct. 2497 , 2507 n.12, 53 L.Ed.2d 594 (1977), or because there was cause for, and actual prejudice from, the failure to exhaust, see Wainwright v. Sykes, 433 U.S. 72, 87 , 97 S.Ct. 2497, 2506 , 53 L.Ed.2d 594 (1977). The extent to which Fay v. Noia, supra,…