Philip Charles Kellotat v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary the Attorney General of the State of Oregon, David Frohnmayer

The district court dismissed Kellotat’s habeas corpus petition for failure to exhaust state remedies. We affirm.

FACTS

Kellotat, representing himself, was convicted of robbery in Oregon Circuit Court. He appealed on several grounds to the Oregon Court of Appeals, where an attorney was appointed to represent him. Kellotat became dissatisfied with the attorney, however, because the attorney refused to raise certain issues on appeal. At Kellotat’s request, the attorney filed a motion to withdraw and a motion to appoint alternate counsel. The Oregon Court of Appeals granted the motion to withdraw, but denied the request to appoint new counsel.

Kellotat unsuccessfully petitioned the Oregon Supreme Court for interlocutory review of the order refusing to appoint substitute counsel. He then proceeded pro se before the Court of Appeals. The court affirmed his conviction, and Kellotat sought review by the Oregon Supreme Court. In this second petition for review, Kellotat did not raise his claim regarding denial of appellate counsel. The Oregon Supreme Court again declined to review the case.

Kellotat sought post-conviction relief in federal district court pursuant to 28 U.S.C. § 2254…