                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 21 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT


VINCENT WAYNE PADGETT,                   )     No. 08-35453
                                         )
      Petitioner – Appellant,            )     D.C. No. 3:05-CV-01707-PA
                                         )
      v.                                 )     MEMORANDUM *
                                         )
JEAN HILL,                               )
                                         )
      Respondent – Appellee.             )
                                         )

                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                                Submitted June 8, 2010 **
                                   Portland, Oregon

Before:      FERNANDEZ, McKEOWN, and PAEZ, Circuit Judges.

      Vincent Wayne Padgett appeals the district court’s denial of his petition for

habeas corpus relief. 28 U.S.C. § 2254. We affirm.



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      Padgett asserts that the district court erred when it decided that his failure to

timely file his appeal from denial of post conviction relief in the Oregon Court of

Appeals constituted a procedural default which barred federal habeas corpus relief.

We disagree. In fact, due to an error on Padgett’s part, his Notice of Appeal was

sent to the wrong court and, as a result, was filed with the Oregon Court of Appeals

more than thirty days after entry of judgment in the Oregon Circuit Court. That

violated the appeal time limit set by Oregon;1 that limit is applied “without

exception”2 and is both independent and adequate;3 it is “‘well established and

consistently applied.’”4 Nor can it be said that this is one of those rare cases where

application of the Oregon law was exorbitant and, therefore, inadequate as applied.

See Lee v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820

(2002). It does not present a situation where application of the law was peculiar

and unexpected, or one over which Padgett had no control or responsibility. See

id. at 387, 122 S. Ct. at 891. Padgett simply did not file in the proper court at the

right time. Finally, Padgett has not spelled out cause and prejudice or a

      1
          Or. Rev. Stat. § 138.650 (2005).
      2
     Miller v. Baldwin, 32 P.3d 234, 236 (Or. Ct. App. 2001); see also Felkel v.
Thompson, 970 P.2d 657, 659 (Or. Ct. App. 1998).
      3
          Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir. 2009).
      4
          Id. at 1207.

                                             2
miscarriage of justice. See Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004);

see also McCleskey v. Zant, 499 U.S. 467, 494–95, 111 S. Ct. 1454, 1470, 113 L.

Ed. 2d 517 (1991).

      AFFIRMED.




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