                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LYMON HENSON,                                    No.   15-35830

              Petitioner-Appellant,              D.C. No. 2:12-cv-01353-AA

 v.
                                                 MEMORANDUM*
MARK NOOTH,

              Respondent-Appellee.


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

                       Argued and Submitted March 10, 2017
                                Portland, Oregon

Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,** District
        Judge.

      Petitioner Lymon Henson appeals the district court’s judgment dismissing

his petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
§§ 1291 and 2253. We review de novo, see Dyer v. Hornbeck, 706 F.3d 1134,

1137 (9th Cir. 2013), and we affirm.

      1. Background. Henson was convicted in 2005 of first-degree

manslaughter, driving under the influence of intoxicants, and lesser offenses

relating to an automobile accident that occurred in 2001. On direct appeal, Henson

raised two assignments of error, neither of which concerned ineffective assistance

of his trial counsel or the Sixth Amendment right to an impartial jury. The Oregon

Court of Appeals affirmed without opinion and the Oregon Supreme Court denied

review.

      Henson then filed a state petition for post-conviction relief, raising several

different ineffective assistance claims. One claim asserted that his trial counsel

provided ineffective assistance when he “failed to excuse” a certain juror whose

wife was the first person to arrive at the aftermath of the automobile accident. The

post-conviction trial court concluded that counsel was not ineffective and

determined trial counsel’s “[s]trategy not to excuse juror sound.”

      In his post-conviction opening brief to the Oregon Court of Appeals, Henson

presented a “slightly different” argument—that he was denied his “constitutional

right to an impartial jury.” Henson stated, “Thus, insofar as the claim in his

petition relates to trial counsel’s ineffectiveness or inadequacy, petitioner is not


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making that claim on appeal.” The Oregon Court of Appeals affirmed without

opinion and the Oregon Supreme Court denied review.

      Henson next petitioned pro se for a writ of habeas corpus in federal district

court. The habeas petition asserted an impartial jury claim, but not an ineffective

assistance juror-challenge claim. The district court eventually appointed counsel.

Counsel did not file an amended habeas petition, but did file a brief in support of

Henson’s pro se habeas petition. The district court denied the habeas petition but

issued a certificate of appealability. The district court also denied Henson’s

motion to amend his habeas petition.

      2. Ineffective assistance claim. The district court did not err in concluding

that Henson’s ineffective assistance juror-challenge claim was not pled in his

federal habeas petition and, in any event, was procedurally defaulted.

      Henson contends that, although the ineffective assistance claim was not

squarely raised in his petition, the district court should have liberally construed

Henson’s pro se federal habeas petition to assert such a claim by viewing the Sixth

Amendment impartial jury claim “through the lens of ineffective assistance.” But

even if construed liberally, Henson’s federal habeas petition plainly does not

include the ineffective assistance juror-challenge claim. The district court did not

abuse its discretion in denying Henson’s motion to amend his habeas petition to


                                           3                                     15-35830
add that claim because Henson provided no new facts or satisfactory explanation

for his failure to develop the contentions originally. See Bonin v. Calderon, 59

F.3d 815, 845 (9th Cir. 1995) (stating standard of review and considerations for

amendments). Moreover, any amendment would be futile because Henson

specifically and explicitly did not raise the ineffective assistance juror-challenge

claim to the Oregon appellate courts and the claim is therefore procedurally barred.

See Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc); see

also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (exhaustion requires a

petitioner to “give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate review

process”).

      Henson acknowledges that he did not explicitly raise the ineffective

assistance juror-challenge claim to the Oregon appellate courts, but he contends

that the claim was sufficiently raised by the state in its post-conviction appellate

briefing to the Oregon Court of Appeals. We reject this contention because the

state only mentioned Henson’s ineffective assistance juror-challenge claim in its

answering brief to argue that “[a]lthough petitioner does not argue on appeal that

the post-conviction court erred in denying his ineffective-assistance-of-counsel

claim with regard to the juror issue, such a claim would have failed.” The state’s


                                           4                                     15-35830
brief treatment of that issue was insufficient to alert the appellate courts to a claim

that Henson had specifically and explicitly abandoned. See Peterson, 319 F.3d at

1157 (holding that the circumstances were insufficient to alert the state appellate

court that petitioner was seeking review of a particular federal issue).

      3. Impartial jury claim. The district court did not err in concluding that

Henson’s impartial jury claim was also procedurally defaulted. Henson did not

raise the claim at trial or on direct appeal, which would ordinarily result in

procedural default of a claim arising from trial error. See Palmer v. State, 867 P.2d

1368, 1369-73 (Or. 1994) (holding that a post-conviction petitioner generally may

not raise claims that could have been raised during the underlying criminal

proceeding and direct appeal). Oregon procedural law, however, provides for the

assertion in post-conviction proceedings of claims that “could not reasonably have

been asserted in the direct appellate review process,”1 OR. REV. STAT.

§ 138.550(2), such as claims that require further factual development, see Kellotat

v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983) (explaining that post-conviction



      1



        Accordingly, Henson’s argument that Oregon provides no procedural
mechanism through which he could assert his impartial jury claim and, therefore,
that he should be excused from the exhaustion requirement, 28 U.S.C.
§ 2254(b)(1)(B), is unpersuasive.

                                            5                                    15-35830
review is available in Oregon “[f]or violations of a defendant’s rights that occur

after trial, or that require a further evidentiary hearing for their determination”).

For that reason, Henson’s impartial jury claim, which depended on evidence

beyond the trial record, likely was not procedurally defaulted due to his failure to

raise the claim on direct appeal. See Or. R. App. P. 3.05 (review on direct appeal

limited to trial record).

       Nonetheless, the claim was procedurally defaulted because Henson failed to

assert it in his original post-conviction petition. See OR. REV. STAT. § 138.550(3)

(“All grounds for relief . . . must be asserted in the original or amended petition,

and any grounds not so asserted are deemed waived.”); see also Pratt v.

Armenakis, 112 P.3d 371, 374-75 (Or. Ct. App. 2005) (holding that Oregon

appellate courts have no authority to consider new post-conviction claims raised

for the first time on appeal).

       AFFIRMED.




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