Bogle

MEMORANDUM ***

The district judge correctly determined that Robert Bogle’s federal habeas petition was procedurally defaulted and that Bogle failed to establish that his procedural default should be excused based on the actual-innocence exception.

Or.Rev.Stat. § 138.550(3) requires that “[a]ll grounds for relief claimed by petitioner ... must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived.... ” The statute provides an exception to this rule only when “the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.” As the rule of Or.Rev.Stat. § 138.550(3) is firmly established and consistently applied by the Oregon courts, see, e.g., Makinson v. Lampert, 199 Or.App. 418 , 112 P.3d 365 (2005) (holding that plain error analysis cannot be applied in derogation of the statutory requirement to reach an issue not raised in the petition), Bogle’s failure to raise his claim of ineffective assistance in his original petition, when he reasonable could have done so, resulted in a procedural default.

The procedural default bars federal…