James Richard Allbee v. Hoyt C. Cupp
Opinion
Opinion
Sneed, J.
Appellant James Allbee hijacked an airplane with 119 people on board and was convicted in Oregon Circuit Court on eleven counts of kidnapping in the first degree. Each conviction was for violation of state law, an earlier federal trial having ended in a mistrial. Allbee received three consecutive twenty-year sentences and eight concurrent twenty-year sentences.
Allbee appealed to the Oregon Court of Appeals, which affirmed his conviction without opinion. Pursuant to an understanding with the Oregon Attorney General’s Office, Allbee deliberately bypassed the Oregon Supreme Court and brought his habeas corpus petition directly to federal court under 28 U.S.C. § 2254 . We have since described this procedural irregularity, and held that petitioners so avoiding Oregon Supreme Court review do not satisfy the exhaustion requirement, in Batchelor v. Cupp, 693 F.2d 859, 862-63 (9th Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 3547 , 77 L.Ed.2d 1395 (1983). As in Batchelor, however, the time for direct appeal to the Oregon Supreme Court has expired, and Oregon’s failure to object to Allbee’s procedural default can be treated as a waiver. See 693 F.2d at 863-64 .