Hendershott v. Palmateer

Type

Opinion of the Court

Per curiam

Yes — no individual author

Filed

May 31, 2002

Case

Hendershott v. Palmateer

Case status

Decided

Source The opinion is per curiam: issued in the name of the court, with no individual author. This is a fact about the opinion, not missing data.

The first passage of the document, as extracted by the source provider.

MEMORANDUM ** Kenneth Hendershott (“Hendershott”) appeals the district court’s denial of his 28 U.S.C. § 2254 petition. He contends that he suffered Sixth Amendment and due process violations stemming from an asserted conflict of interest with his trial attorney. Because the state court rulings at issue were neither contrary to nor an unreasonable application of clearly established federal law, we affirm (see 28 U.S.C. § 2254 (d)(1)). Despite the district court’s conclusion that Hendershott’s conflict-of-interest claim was not procedurally defaulted (ER 243-44), there is substantial ground for finding such default. Although Hendershott did raise that claim in his original pro se petition for state post-conviction relief (“PCR”), he likely waived the claim by failing to reassert it in his amended PCR petition (Or.Rev.Stat.l38.550(3)). 1 And Palmateer’s failure to object to the federal magistrate judge’s finding that the claim was not procedurally defaulted or to cross-appeal when the district court adopted that finding does not amount to a waiver of the argument that Hendershott waived the conflict claim (see Jones v. Wood, 207 F.3d 557 , 562 n. 2 (9th Cir. 2000)). While failure to …

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