Lymon Henson v. Mark Nooth, 686 F. App'x 514

Henson was convicted in 2005 of first-degree manslaughter, DUII, and related offenses for a 2001 car accident. Direct appeal affirmed; Oregon Supreme Court denied review.
In state post-conviction proceedings Henson alleged ineffective assistance of trial counsel for not striking a juror whose wife was first on the accident scene; the trial court found counsel’s strategy legitimate and denied relief.
In his post-conviction appellate brief Henson emphasized an impartial-jury claim and stated he was not pressing ineffective-assistance arguments on appeal; Oregon appellate courts affirmed without opinion and the Oregon Supreme Court denied review.
Henson filed a pro se federal habeas petition asserting an impartial-jury claim (but not the specific ineffective-assistance juror-challenge); the district court appointed counsel who did not amend the petition, denied relief, and refused amendment; COA was granted.
The Ninth Circuit reviewed de novo and affirmed, holding the ineffective-assistance juror-challenge was not pled in federal habeas, amendment was properly denied as untimely/futile, and both the juror-challenge and impartial-jury claims were procedurally defaulted under Oregon law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether federal habeas petition fairly raised ineffective-assistance juror-challenge	Henson: pro se petition and Sixth Amendment impartial-jury claim should be construed to include ineffective-assistance claim	State: claim was not pled in federal petition and was abandoned on state appeal	Court: claim was not pled; amendment denial not abuse; claim procedurally defaulted
Whether district court abused discretion in denying motion to amend to add ineffective-assistance claim	Henson: amendment should be allowed; no adequate explanation for failure excused	State: Henson offered no new facts or satisfactory excuse; amendment would be futile because claim was not presented on state appeal	Court: denial proper under Bonin standard; amendment futile due to procedural bar
Whether impartial-jury claim is exhausted/avoids procedural default	Henson: claim required extra-record development and thus could be raised in post-conviction proceedings; exhaustion satisfied	State: claim was not raised at trial or direct appeal and was waived for failing to raise in original post-conviction petition	Court: although post-conviction could be appropriate forum, Henson waived claim by not asserting it in original post-conviction petition; procedurally defaulted

Dyer v. Hornbeck, 706 F.3d 1134 (9th Cir. 2013) (standard of de novo review cited)
Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (standards and considerations for amendment of habeas pleadings)
Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003) (exhaustion and procedural default principles for abandoned state claims)
O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (exhaustion requires one full round of state appellate review)
Kellotat v. Cupp, 719 F.2d 1027 (9th Cir. 1983) (post-conviction review appropriate for claims requiring evidentiary development)
Palmer v. State, 867 P.2d 1368 (Or. 1994) (Oregon rule that post-conviction may not raise claims available on direct appeal)
Pratt v. Armenakis, 112 P.3d 371 (Or. Ct. App. 2005) (Oregon courts may not consider new post-conviction claims first raised on appeal)