321 F.3d 820 (9th Cir. 2003), 01-36143, Ferguson v. Palmateer

Docket Nº:01-36143.
Citation:321 F.3d 820
Party Name:Dean Evan FERGUSON, Petitioner-Appellant, v. Joan PALMATEER, Superintendent Oregon State Penitentiary, Respondent-Appellee.
Case Date:February 28, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 820

321 F.3d 820 (9th Cir. 2003)

Dean Evan FERGUSON, Petitioner-Appellant,


Joan PALMATEER, Superintendent Oregon State Penitentiary, Respondent-Appellee.

No. 01-36143.

United States Court of Appeals, Ninth Circuit

February 28, 2003

Argued and Submitted Jan. 9, 2003.

Page 821

Christine Stebbins Dahl, Assistant Federal Defender, Portland, OR, for Petitioner-Appellant.

Jennifer S. Lloyd, Asst. Attorney General, Salem, OR, for Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-00-00846-MM.

Page 822

Before: WALLACE, TROTT and TASHIMA, Circuit Judges.


WALLACE, Senior Circuit Judge.

Ferguson, an Oregon prisoner, filed a petition for habeas corpus relief, raising claims of ineffective assistance of counsel and prosecutorial misconduct. The district court dismissed his petition as time barred. Ferguson argues that the federal one-year statute of limitations should be extended to allow full application of Oregon's two-year statute of limitations. The district court had jurisdiction under 28 U.S.C. §§ 2241, 2254. We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 2253. We affirm.


Ferguson pled guilty to two counts of sodomy in the second degree, two counts of unlawful delivery of a controlled substance to a minor, and one count of sexual abuse in the first degree. On August 4, 1995, Ferguson's state convictions became final. OR. REV. STAT. § 138.510(3)(a). The Antiterrorism and Effective Death Penalty Act (AEDPA) one-year grace period ended on April 24, 1997. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). On July 29, 1997, Ferguson filed his petition for state postconviction relief, within Oregon's two-year statute of limitations, OR. REV. STAT. § 138.510(3), but beyond AEDPA's one-year statute of limitations. 28 U.S.C. § 2244(d)(1). Relief was denied and the Oregon Supreme Court denied review on January 18, 2000. Five months later, Ferguson filed his federal petition, which the district court dismissed as untimely. The district court issued a certificate of appealability as to whether 28 U.S.C. § 2244(d)(1) time bars this petition. We review de novo the district court's dismissal of a federal habeas petition on statute of limitations grounds. Malcom v. Payne, 281 F.3d 951, 955-56 (9th Cir. 2002).


Ferguson argues that the district court's application of the literal terms of section 2244(d)(1) violates the Suspension Clause. U.S. CONST. art. I, § 9, cl. 2. ("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). Legislation violates the Suspension Clause if it renders the habeas corpus statute "inadequate or ineffective" to test the legality of Ferguson's detention. Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977). Ferguson argues that section 2244(d)(1) unconstitutionally suspends the writ because it departs from the evolving body of equitable habeas principles. See Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (holding that the added restrictions on second habeas petitions are "well within the compass of this evolutionary process" and do not...

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