Donald Ray Wells v. Manfred Maass, Superintendent, Oregon State Penitentiary

Opinion by Judge REINHARDT; Concurrence and Dissent by Judge FERNANDEZ.

Donald Ray Wells, an Oregon state prisoner, appeals the district court’s dismissal of his petition for habeas corpus under 28 U.S.C. § 2254 . In his petition, Wells argues (1) that he was denied effective assistance of counsel; (2) that the state engaged in prose-cutorial misconduct by entering into an unenforceable agreement that any sentences arising from his state convictions would run concurrently with his federal sentences; and (3) that this unenforceable agreement rendered his guilty plea involuntary. The district *1007 court dismissed the ineffective assistance claim as procedurally defaulted and denied the other claims on the merits. Because Wells did not default on the ineffective assistance claim, we reverse the district court’s dismissal of this ground for relief. We affirm the denial of Wells’s other claims, however.

I.

In 1985, Donald Ray Wells was indicted in state court in Polk County, Oregon, on three counts of first degree robbery, two counts of attempted murder, two counts of being an ex-convict in possession of a firearm, and one count of unauthorized use of a motor vehicle. At about the…

concurring and dissenting:

I concur in Parts I and III of the majority opinion. However, I dissent from Part II because I do not think that Wells raised the incompetence of counsel issue, which he now seeks to raise, when he filed his petition for review in the Oregon Supreme Court. He was required so to do. See Or.R.App.P. 9.05(3)(b), (d) and (4). Indeed, he could not properly raise the issue there because he had not done so in the Oregon Circuit Court. Cf. State v. Castrejon, 317 Or. 202 , 856 P.2d 616, 621-22 (1993). I recognize that if it decided to hear the petition, the Oregon Supreme Court could have considered issues which were properly raised in the Court of Appeals but not raised in the petition before it. See Or.R.App.P. 9.20(2). However, I do not consider that to be relevant. The court did not so decide; it denied review. In short, as the district court found, Wells proeedurally defaulted on the claim.

28 F.3d 1005 Donald Ray WELLS, Petitioner-Appellant, v. Manfred MAASS, Superintendent, Oregon State Penitentiary, Respondent-Appellee. No. 92-36861. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1993. Decided July 7, 1994. Jane E. Ellis, Portland, OR, for petitioner-appellant. Thomas H. Denney, Deputy Atty. Gen., Salem, OR, for respondent-appellee. Appeal from the United States District Court for the District of Oregon. Before REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges. Opinion by Judge REINHARDT; Concurrence and Dissent by Judge FERNANDEZ. REINHARDT, Circuit Judge: 1 Donald Ray Wells, an Oregon state prisoner, appeals the district court's dismissal of his petition for habeas corpus under 28 U.S.C. Sec. 2254 . In his petition, Wells argues (1) that he was denied effective assistance of counsel; (2) that the state engaged in prosecutorial misconduct by entering into an unenforceable agreement that any sentences arising from his state convictions would run concurrently with his federal sentences; and (3) that this unenforceable agreement rendered his guilty plea involuntary. The district court dismissed the ineffective assistance claim as…