Dockery v. Thompson

MEMORANDUM* Oregon state prisoner Keith T. Dockery’s appeal fails because a state prisoner is barred from presenting a claim in a federal habeas petition if he forfeited the claim by failing to abide by independent and adequate procedural rules in state court. See Coleman v. Thompson, 501 U.S. 722, 729-730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Dockery appealed his sentence, first on direct review, then in state post-conviction proceedings, arguing that the trial court had failed to make the factual findings required by ORS § 137.123 before imposing consecutive sentences. The post-con [553] viction court agreed that the trial court had failed to make the required findings and, based on this omission alone, remanded Dockery’s case for resentencing. Post-conviction relief was otherwise denied. At his resentencing hearing, Dockery argued for the first time that his two kidnapping convictions should merge under ORS § 161.067. The trial court initially stated that the merger issue was not before the court, but, when pressed by defense counsel, ruled that Dockery’s convictions did not merge. Dockery sought post-conviction relief a second time, again arguing that his convictions merged under Oregon law. The post-conviction court denied relief, holding that Dockery was “precluded from pursuing in this post-conviction proceeding his claim the trial court erred in failing to merge his convictions because he did not raise that issue in his first post-conviction case.” Because the second post-conviction court explicitly relied upon the state rule requiring that all grounds be raised in a prisoner’s first post-conviction proceeding, Dockery’s due process claim is barred by an adequate and independent state procedural ground. See Bowen v. Johnson, 166 Or. App. 89, 92, 999 P.2d 1159 (2000) (requiring a petitioner to state all grounds for post-conviction relief in the petition). We conclude that a valid factual basis supports the district court’s finding that Dockery failed to assert his merger claim in his amended petition before the first post-conviction court. Finally, Dockery has not presented any additional evidence to establish his actual innocence and therefore has not established a “miscarriage of justice.” He merely argues legal innocence of his sentence, which cannot excuse his default. Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir.2002). AFFIRMED. Footnotes [*] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.