                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 02 2013

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



                            FOR THE NINTH CIRCUIT


SHAWN M. NEWCOMB,                                No. 12-35418

              Petitioner - Appellant,            D.C. No. 3:09-cv-00936-HU

  v.
                                                 MEMORANDUM*
JEFF PREMO,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted July 11, 2013
                                Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Shawn Newcomb appeals the district court’s order denying his 28 U.S.C.

§ 2254 habeas corpus petition challenging the revocation of his parole and denial

of rerelease. We review de novo the district court’s order denying habeas relief.

Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002). We have jurisdiction under



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
28 U.S.C. § 2253, and we affirm.

      Petitioner contends that the district court erred by finding his claim

procedurally barred for failure to exhaust his state remedies, and further contends

that Oregon’s procedural rule requiring prisoners to seek administrative review of

revocation orders is not “adequate” to preclude habeas review.

      Habeas petitioners exhaust state court remedies before seeking federal

habeas relief when their federal claims are “fairly presented” to the state’s highest

court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838,

848 (1999). If a petitioner fails to exhaust his state remedies and the state court

“would now find the claims procedurally barred . . . there is a procedural default

for purposes of federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1

(1991).

      Here, petitioner failed to seek administrative review of the October 28, 2003

order issued by the Oregon Board of Parole and Post-Prison Supervision (Parole

Board) revoking his parole. The order explicitly advised petitioner that he had 45

days to seek administrative review. The Parole Board later conducted a future

disposition hearing to determine whether to rerelease petitioner, “not to litigate

whether [petitioner] did or did not violate the condition of supervision.” The

Parole Board issued an order denying rerelease and petitioner sought


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administrative review, challenging the basis for the revocation decision. The

Parole Board correctly determined that petitioner’s due process argument was

related to the October 2003 revocation order, not the February 2004 sanction order,

and dismissed it as untimely. See OAR § 255-080-0005(1) (requiring inmate seek

administrative review within 45 days). The Oregon Court of Appeals affirmed

without opinion and the Oregon Supreme Court denied review.

      Petitioner failed to comply with Oregon Revised Statute 144.335(1)(b),

which requires that petitioners exhaust administrative remedies before seeking

judicial review of Parole Board orders. The failure to do so deprived the state

court of jurisdiction to hear petitioner’s due process claim. See Rickman v. Oregon

Bd. of Parole & Post-Prison Supervision, 959 P.2d 617, 619 (Or. Ct. App. 1998)

(because Petitioner never sought administrative review of parole revocation

decision, the state court “may not review that decision”). Petitioner argues instead

that the state court could have considered his due process argument under the plain

error standard, but he cites no authority for the implied argument that it was error

for the court to decline to take up his appeal. Because petitioner’s due process

challenge to the Parole Board’s revocation decision was not “fairly presented” and

because the revocation order was issued more than 45 days ago, he is barred from

exhausting his state remedies. See OAR § 255-080-0005(1). Petitioner’s claim is


                                           3
procedurally defaulted for purposes of federal habeas relief. O’Sullivan, 526 U.S.

at 848.

          Petitioner argues Oregon’s administrative review rule is not “adequate” to

preclude habeas review. Federal habeas relief is unavailable when a state judgment

rests on “independent and adequate” state procedural grounds. Walker v. Martin,

131 S. Ct. 1120, 1127 (2011) (citation omitted). A procedural rule is “adequate” if

it is “firmly established and regularly followed.” Id. (citation omitted).

       Petitioner’s first adequacy argument is that Oregon’s bifurcation of

revocation proceedings and future disposition hearings is “artificial” and that

bifurcation serves no legitimate purpose. But procedural rules “generally serve[] a

legitimate state interest, Lee v. Kemna, 534 U.S. 362, 387 (2002), and Newcomb

has not demonstrated that this is an “exceptional case[] in which exorbitant

application of a generally sound rule renders the state ground inadequate,” id. at

376.

       We also reject petitioner’s argument that Oregon’s filing deadline required

that he challenge the Parole Board’s action before his due process argument

“crystalized.” Petitioner submitted a memorandum to the hearing officer before

the revocation order was issued making the same vagueness argument he makes

now; his due process argument clearly crystalized before the Parole Board issued


                                            4
its order denying rerelease.

      Petitioner’s next contention is that the Parole Board cannot fairly review its

own decisions. Administrative review provides the Parole Board with the

opportunity to review its decisions, and potentially correct errors, before expending

judicial resources. This is consistent with exhaustion principles. See Geo-Energy

Partners-1983 Ltd. v. Salazar, 613 F.3d 946, 959 (9th Cir. 2010) (noting agency’s

interest in “applying its expertise, correcting its own errors, making a proper

record, [and] enjoying appropriate independence of decision”) (citation omitted).

Even when the Parole Board upholds its own decisions, Oregon’s rules provide an

opportunity for judicial review.

      Petitioner cites Mageske v. Bd. of Parole & Post-Prison Supervision, 21

P.3d 150, 152 (Or. Ct. App. 2001), in support of his contention that Oregon’s

administrative review requirement is not invariably followed. In Mageske,

petitioner sought untimely administrative review of a Parole Board revocation

order. Id. at 151. The Parole Board considered his late challenge and affirmed on

the merits. The Court of Appeals also considered the merits of Mageske’s

challenge, but it reversed, ruling the Parole Board mistakenly concluded an arrest

alone was sufficient to establish petitioner had violated the condition that he obey

all laws. Id. at 152–53. Mageske does not demonstrate that Oregon’s


                                           5
administrative review requirement is not invariably followed. Mageske

demonstrates that the Parole Board has discretion to entertain defaulted arguments.

See Dawson v. Bd. of Parole & Post-Prison Supervision, 217 P.3d 1055, 1057 (Or.

2009). That the Parole Board declined to do so in this case does not mean that the

rule requiring administrative review within 45-days is not firmly established and

regularly followed. See Walker, 131 S. Ct. at 1127–30 (holding that a

discretionary rule is regularly followed even if similar cases result in different

outcomes).

      PETITION DENIED.




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