Eric Allen Peterson v. Robert Lampert, Superintendent, Snake River Correctional Institution

Petitioner Eric Allen Peterson appeals the district court’s denial and dismissal of his 28 U.S.C. § 2254 petition. We affirm the district court’s decision on the ground that Peterson proeedurally defaulted his federal ineffective assistance of counsel claim by fading to fairly present it to the Oregon Supreme Court.

In this case, we must revisit one of our earlier decisions, Wells v. Maass. Wells held that a petitioner fairly presents an issue to the Oregon Supreme Court, for purposes of federal habeas review, by incorporating the issue from an Oregon Court of Appeals brief into his or her petition for review. Petitioner Peterson made no attempt to incorporate his brief before the Oregon Court of Appeals into his petition for review. Thus, the holding of Wells does not govern this case. Wells suggested in dicta, however, that even absent incorporation, the Oregon Supreme Court would be deemed to have considered issues that were not raised in the petition for review but were raised in briefs before the Oregon Court of Appeals. Peterson asks us to extend Wells in line with this dicta. We decline to extend Wells. A petitioner’s failure to present an issue in his petition for review…