                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 15 2014

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



                           FOR THE NINTH CIRCUIT


STEVEN KEITH DONOGHUE,                           No. 13-35946

              Petitioner - Appellant,            D.C. No. 2:11-cv-01046-SI

  v.
                                                 MEMORANDUM*
JEFF PREMO, Superintendent,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                    Argued and Submitted November 21, 2014
                               Portland, Oregon

Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.

       Appellant Steven Donoghue appeals the district court’s denial of his petition

for habeas relief. We affirm.

       Two of Donoghue’s claims, raised on direct appeal in a pro se brief, were

not considered by the Oregon Court of Appeals because the brief did not comply



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with a state procedural rule, ORAP 5.45. The district court determined that ORAP

5.45 was an independent and adequate state ground and held that federal review of

these claims was barred.

          Generally, habeas claims may not be entertained by a federal court when a

state court has declined to address those claims because the petitioner failed to

satisfy a state procedural requirement and the state judgment rests on independent

and adequate state procedural grounds. Maples v. Thomas, 132 S. Ct. 912, 922

(2012). Donoghue argues that the basis for the state court decision was not

adequate because the rule has not been consistently followed, but the cases

Donoghue identifies to support his claim are distinguishable. He has identified no

example of the Oregon courts failing to apply the rule to a brief as non-conforming

as his.

          A procedural default may be excused in some circumstances when a

petitioner has demonstrated cause and prejudice. See Coleman v. Thompson, 501

U.S. 722, 750 (1991). As the district court concluded, however, Donoghue has not

demonstrated cause.

          The district court denied relief on Donoghue’s remaining claims because it

determined that Donoghue did not fully and fairly present these claims to the




                                            2
Oregon Supreme Court. See Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir.

2014).

      Donoghue contends that he satisfied that obligation by incorporating by

reference claims listed in a lengthy memo he attached to his pro se appellate brief.

He argues that the different claims were properly incorporated into his brief under

Farmer v. Baldwin, 205 P.3d 871 (Or. 2009) (en banc). We disagree.

      In Farmer, this Court requested from the Oregon Supreme Court an answer

to a certified question regarding Balfour1 appellate briefs, which are governed by a

state procedural rule that does not apply here. In answering, the Oregon Supreme

Court held that the client-prepared part of a Balfour brief filed in the state court of

appeals could be incorporated by reference into that client’s petition for review to

the state supreme court. Farmer, 205 P.3d at 878.

      The incorporation-by-reference allowed under Farmer does not logically

extend to the situation in this case, however. Donoghue attempted to incorporate

his pro se post-conviction relief trial memo and direct appeal pro se brief into both

his brief to the state court of appeals and into his petition for review to the state

supreme court. While the holding in Farmer may allow incorporation of part of a

Balfour brief in a petition for review, it does not allow a non-Balfour pro se brief to

      1
          State v. Balfour, 814 P.2d 1069 (Or. 1991)(en banc).

                                            3
incorporate any type of document a litigant may think helpful at any stage in an

appeal.

      In its order denying Donoghue’s claims, the Oregon Court of Appeals

referred only to the claims identified in the assignments of error in the appellate

brief and not to the claims that might have been raised in the attachments. Because

Donoghue failed to exhaust his collateral review claims in Oregon state court by

not fully and fairly presenting them, federal habeas review of those claims is

barred.

      AFFIRMED.




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