                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 15 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SHAWN WILLIAMS,                                  No. 13-35657

                Petitioner - Appellant,          D.C. No. 6:01-cv-00812-AA

  v.
                                                 MEMORANDUM*
STEVE FRANKE, Superintendent of
Two Rivers Correctional Facility in
Umatilla, Oregon,

                Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Oregon
                     Ann L. Aiken, Chief District Judge, Presiding

                             Submitted October 8, 2014**
                                 Portland, Oregon

Before:         KOZINSKI, FISHER and DAVIS,*** Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
                                                                                   page 2
      Williams’s ineffective assistance of counsel claim is procedurally defaulted.

Williams’s assertion that trial counsel was ineffective for failing to move for a

change of venue was raised for the first time when Williams sought to orally

amend his petition on the day of his state habeas hearing, almost two and a half

years after the filing of his state petition.1 The state court’s decision to reject that

amendment as untimely was based on an independent and adequate state ground.

Williams has not shown that the state law at issue—Or. Rev. Stat. § 138.610—is

“inadequate,” see Lee v. Kemna, 534 U.S. 362, 375 (2002), nor has he shown

cause or prejudice for his procedural default, see Coleman v. Thompson, 501 U.S.

722, 750 (1991).2 Id.

      Even if we were to construe Williams’s state petition liberally and conclude

that he exhausted the trial counsel IAC claim, he would not prevail on the merits.

The pretrial publicity in the record is not of such a prejudicial character that it was



      1
         The state petition included a claim that “appeal counsel failed to raise [the]
issue that trial counsel [failed] to move the court for a Change of Venue, due to the
amount of pre-trial publicity.” Williams also raised certain other trial counsel IAC
claims, but none of those claims related to the venue change issue.
      2
         Williams argues that the state waived its procedural default argument by
not raising it before the district court. But the state specifically moved for a ruling
on exhaustion, and the state’s brief before the district court clearly raises, albeit in
somewhat cursory fashion, a procedural default argument against Williams’s
claim.
                                                                             page 3
objectively unreasonable for his counsel to have failed to move for a change of

venue. See Skilling v. United States, 561 U.S. 358, 378, 381–84 (2010);

Strickland v. Washington, 466 U.S. 668, 687 (1984).


      AFFIRMED.
