Ventura v. Cupp

• Decision Date: 12 January 1983
• Docket Number: No. 81-3598,81-3598
• Citation: 690 F.2d 740
• Parties: Milton VENTURA, Plaintiff-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 740

690 F.2d 740

Milton VENTURA, Plaintiff-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary Defendant-Appellee.

No. 81-3598.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 5, 1982.

Decided Oct. 21, 1982.

As Amended Jan. 12, 1983.

Hollis K. McMilan, Eugene, Or., for plaintiff-appellant.

Virginia L. Linder, Asst. Atty. Gen., Salem, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY, SNEED and SKOPIL, Circuit Judges.

PER CURIAM:

This is an appeal from the denial of a petition for habeas corpus. It nicely illustrates certain difficulties with the exhaustion of state remedies requirement.

Federal law requires exhaustion of all state remedies. 28 U.S.C. § 2254(b)-(c) (1976); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379 (1982). Remedies that appear not to have been exhausted, such as the appeal of a conviction to the state's highest court, see Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023, 102 S.Ct. 1722, 72 L.Ed.2d 142 (1982), may in fact not have been available. Or remedies not employed, although available, may nonetheless be capable of being raised because either the failure to exhaust was a failure to appeal that did not constitute a deliberate bypass, see Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963); Wainwright v. Sykes, 433 U.S. 72, 88 n.12, 97 S.Ct. 2497, 2507 n.12, 53 L.Ed.2d 594 (1977), or because there was cause for, and actual prejudice from, the failure to exhaust, see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). The extent to which Fay v. Noia, supra, has survived Wainwright v. Sykes, supra, and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 72 L.Ed.2d (783) (1982), is uncertain. The requirement of exhaustion cannot be waived by the state "unless the interest of justice so requires." Sweet v. Cupp, 640 F.2d 233, 237 n.5 (9th Cir. 1981).

These principles are implicated in this appeal. The petitioner was convicted on three counts of first degree robbery, two counts of first degree assault, and one count of being an ex-felon in possession of a firearm. He was sentenced to twenty years imprisonment on each first degree robbery count to run concurrently. He was also sentenced to consecutive twenty year terms of imprisonment for the assault counts to run consecutively with the robbery sentence, and to five years imprisonment for being an ex-felon in possession of a firearm to run consecutively to the robbery and assault sentences. Thus, petitioner's total sentence is 65 years imprisonment.

Petitioner appealed his convictions to the Oregon Court of Appeals, which affirmed his convictions. State v. Ventura, 27 Or.App. 427, 556 P.2d 1391 (1976). No review by the Oregon Supreme Court was sought by petitioner. Petitioner then sought post-conviction relief in the Oregon courts pursuant to Or.Rev.Stat. §§ 138.510-.680 (1981). The Oregon trial court denied relief, the Oregon Court of Appeals affirmed, and the Supreme Court of Oregon denied review, see Ventura v. Cupp, 289 Or. 45, 610 P.2d 1232 (1980), and then denied reconsideration of the petition for review, id. Thereafter, the petitioner sought review by the Supreme Court of the United States, but his petition for a writ of certiorari was denied. Ventura v. Cupp, 449 U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980).

The exhaustion issue is further complicated by the fact that the issues raised by the petitioner at each level of review have not remained constant. Thus, at the trial and before the Oregon Court of Appeals the petitioner argued that his statements to the police after being taken into custody should have been suppressed because they were obtained in violation of his right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This issue, however, was not placed before the Oregon Supreme Court. In his post-conviction efforts before the Oregon courts he asserted that the consecutive terms of imprisonment were not authorized by Oregon law and that, as a result, the imposition of such terms violated the Due Process Clause of the Fifth Amendment. In the petition for a writ of certiorari to the Supreme Court of the United States, the Double Jeopardy Clause of the Fifth...