Michael Reese v. George H. Baldwin

remand to the district court therefore We evidentiary hearing to determine permanently has moved

whether Gaudin If the district determines

Hawaii. relocated, her action is has

that Gaudin

moot; then the district court wish previous to vacate its

consider whether v. Madison Sch. Distr.

judgment. See Doe (9th Cir.1999)

No. 177 F.3d

(en banc). deny the motion to Since evidentiary and remand for an

dismiss

hearing, we do not reach the merits of the However, if

appeal at this time. the dis action

trict determines Gaudin’s moot, any shall subsequent appeal

is not assigned to panel. DENIED; RE-

Motion to Dismiss proceedings.

MANDED for further REESE, Petitioner-Appellant,

Michael

George BALDWIN, Respondent- H.

Appellee.

No. 01-35153.

United States Court of

Ninth Circuit.

Argued and Submitted Nov.

Filed March NELSON, HUG, T.G.

Before: GOULD, Judges. Circuit GOULD; Judge Dissent Opinion by Judge NELSON. T.G.

GOULD, Judge. Circuit OVERVIEW (“Reese”) ap- Petitioner Michael Reese ruling that his peals the district court claim of ineffective assistance § 2254 habeas because of lack of procedurally defaulted The is whether Reese exhaustion. issue the state courts to the adequately alerted federal nature of his claims. We reverse court, concluding that Reese district presented his federal claims courts, further and we remand for proceedings petition. on his habeas

PROCEDURAL HISTORY I. Conviction and Direct story pertinent ap- The convicted on peal begins when Reese was kidnaping two and one count of counts of sodomy Oregon state court. attempted The trial court sentenced Reese as a dan- the court gerous offender. This allowed sentencing guide- from the usual depart lines. The court issued a determinate sen- thirty years kidnaping tence of on the meant that Reese would counts. That thirty years have to serve the entire with- The court eligibility parole. out for also years sentenced Reese to three on the Balske, N. Dennis Assistant Federal count, sodomy attempted a determinate Portland, Defender, OR, Public for the consecutively sentence to be served petitioner-appellant. a kidnaping Facing one on the counts. Rocklin, Attorney B. Robert Assistant thirty-three year possibil- sentence with no General, Salem, OR, respondent- for the ity parole, Reese thus far had not fared appellee. well. The affirmed the convictions. But it remanded for re- time, This attorney proceeded pro se. required Oregon law sentencing because alone, the trial facing pro to indicate what se Reese sentencing court have been had danger- sentence would Reese as a presumptive court did not sentence dangerous a Instead, sentenced as not been sentenced Reese the court ous offender. offender, court hadn’t done. which the trial kidnaping on the Reese to 260 months law, have been Reese could Under convictions, year the three consecu- plus pre- after he served eligible parole attempted sodomy. tive term for term, and so this omission sumptive kidnaping sentence was length of on Reese’s tenure as impact potential guidelines, though from the departure convict. an- being dangerous offender. Yet again remand the court time, this first On had not fared well. other thirty years on the Reese to sentenced appeal on the second Appeals Court of dangerous as a .offender. kidnaping counts Reese when sentenced as a stated that the specified time the court also And this dangerous eligible offender could be the court would presumptive sentence that years, presumptive after 11 the parole Reese to imposed if it had found have remand, in third But on sen- term. However, as dangerous a offender. dangerous the court abandoned tencing, this appeals, the mill of further grist for departure, basis for offender status as the by the specified presumptive sentence grounds. departed on other the sen- departure was also a from court again for appealed his sentence Reese differently, tencing guidelines. Stated an appointed third time and was still it would have that the court said sentence pro appeal counsel. But Reese’s other departure from the sentenc- issued absent appellate ill ceeded under an star. Reese’s dangerous a offender ing guidelines for champion posi declined to counsel from the sen- departure was itself also a and filed a brief with tion Balfour Reese had not guidelines. Again, tencing Appeals suggesting Oregon Court fared well. merit. The issues had no appellate pre- for the departure But this use of.a of the Oregon’s version system Balfour un- permissible sentence was not sumptive in An briefing system announced Anders law, Oregon Court of Oregon der California, 386 U.S. ders v. resentencing. again remanded (1967), 1396, 18 which through 493 L.Ed.2d court noted that the correct appeals The they con counsel claims appointed guidelines sentence under the presumptive clude are frivolous.1 been be- departure should have without v. 121 months. See State tween and 130 Oregon Reese, 317, 319 Or.App. 128 876 P.2d Reese’s sentence appeal third affirmed (1994). opinion. written See State without Reese, Or.App. 894 P.2d sentencing after second

On the third by did not seek review Reese remand, sentencing ap- Thus ends the Court. represent different counsel pointed appeal. of Reese’s direct objected saga then to the new Reese Reese. Anders, Oregon's system does not system, counsel files nounced

1. Under the Balfour Instead, notifying feels the the court counsel coun- require brief to withdraw. counsel signs appeal lacks merit. Counsel writes help appellant hand to sel remains on brief, gives a A of the which statement of Part might any appellant want to raise. issues history. procedural Counsel in- facts and Anders, an Additionally, unlike in any appellant wishes to cludes issues that the presented with a brief does Balfour brief, signed in Part B the which is raise independent engage review of the in its own system Contrary an- appellant. to the (1983).”3 77 L.Ed.2d 987 Review Conviction II. Post process. in the PCR again appealed, now however, that Oregon, typical As is again another appointed Reese was still Reese filed the matter. not the end of in the appeal counsel for the PCR post conviction pro petition for state se Appeals. Reese’s PCR (“PCR”). out, the tale of As it turns relief stating brief there counsel filed Balfour part is the process Reese’s PCR claims, just as Reese’s were no meritorious perti- that is most proceedings state court Part appeal counsel had done. For direct appeal. in this purposes nent for our brief, present- B of the the section Balfour new appointed still another PCR court frivo- ing thought that counsel claims filed an lous, counsel for Reese. Counsel inexplicably attached Reese’s than the pro petition PCR rather raising a of ineffec- se petition amended prepared that had been amended counsel, citing tive assistance of result, attorney. As a and Fourteenth Balfour explicitly Sixth au- explicitly brief did not cite to federal constitution as Amendments of the federal ap- assistance of thority for the ineffective constitution.2 well as to the claim, pellate counsel as amended the ineffective The PCR court denied tion had done. The state filed a motion for with a affirmance, counsel claim attor- appellate summary assistance which Reese’s ney oppose. The citing authority. did ruling, terse law motion, granted the and summari- Opinion, In its Memorandum of beneath with- ly affirmed the PCR court’s decision Counsel,” heading “Adequate Appellate opinion.4 out a written wrote, counsel simply “Appellate the court issue. present every need not colorable petition Reese next filed a for review in Barnes, 745, petition Court. This 103 S.Ct. Jones Balfour, appel 3. above the court’s decision on the entire record. See State v. 311 Or. Just 434, separate heading late counsel claim was .a 814 P.2d 1069 "Adequate entitled Assistance of Counsel”. heading, ruling another terse stat Under that petition 2.The amended stated: ed, adequate assistance "Petitioner received adequate Petitioner was denied assistance counsel,” and cited Strickland v. of trial counsel under the Sixth 668, 2052, Washington, 466 the Constitution Fourteenth Amendments to (1984), leading prece L.Ed.2d 674 I, of the United States and under Article establishing the standard for ineffective dent Oregon, Section of the Constitution of the Sixth Amend assistance of counsel under appeal in that counsel failed to: ment, citing well as “Krummacher v. Gier as attorney as a. Withdraw for Petitioner (1981),” loff, 290 Or. 627 P.2d 458 in that due to conflict of interest her analyzing case ineffective assistance attorney ... had been the for husband claims under both the federal and prosecution three times on Petitioner's Krummacher, 290 Or. constitutions. See cases; 627 P.2d 461. Notify when b. Petitioner in advance attorney grant- removed Petitioner’s David issued an order she Allen, The Court of ing summary case for affirmance and from Petitioner’s and became the motion affirming attorney the PCR court’s decision: of record for Petitioner with- consent; summary out Petitioner's "Respondent has moved for affir- preserved c. Raise issues that had been pursuant on the mance to ORS 138.660 appeal; ground appeal presents for this no sub- timely Appeal; question Appellant File a Notice of d. stantial of law. has transcripts timely grant- opposed e. Obtain trial in a the motion. The motion is provide a thor- manner and in order to ed. ough proper appeal. "Affirmed.” magis- a federal The case was referred to Amend- Fourteenth the Sixth and cited to constitution, in turn recommended judge, but the trate who the federal ments of fairly presented that Reese finding support claims appeared citations of appellate assistance only. trial counsel claim ineffective ineffective assistance judge recom- magistrate counsel. The containing these citations sentence The that claim and stated, “Moreover, granting mended relief for Petitioner asserts since other claims.6 denying counsel relief coerced and threatened he was rejected magistrate The by jury, to trial Petition- district right waive his recommendation, 5th, judge’s 14th amend- held that Reese 6th and er believes claim of ineffec- fairly present Reese’s did not rights ment have been violated.” counsel to the ineffective assistance tive alleging made sum- and held that the claim was appeal on direct The district court procedurally other claims. defaulted.7 marily, along many claims, rejected citation denied Reese’s other express contained no petition authority for the claim.5 Reese’s motion for reconsideration. peti- of his habeas appeals dismissal Oregon Supreme Court denied tion. III. Federal Habeas DISCUSSION set, stage thus past

With the only the court’s de- We review district in federal court a habeas Reese filed procedurally that Reese de- termination tion and later an amended claims, appel- ineffective assistance of faulted his among other ineffective alleging, claim.8 appeal. direct late counsel assistance of counsel on duct, convenience, jury improper parts improper waiver of relevant 5.For we set forth investigation. argument petition, including the full imprisonment is Petitioner asserts his petition: section of the Petitioner in violation of ORS 138.530. of reasons for reversal of Court Statement eighth alleges that the sentence violates his of rights against unusu- cruel and amendment Appeals should decision of the Court of Moreover, punishment. since Petitioner al following reason: Peti- be reversed for by and threatened he was coerced asserts subject to several errors tioner was right by jury, to trial counsel to waive his case, including improper respect to this 5th, his 6th and 14th Petitioner believes sentencing, ineffective assistance of both rights have been violated. amendment counsel, appellate trial court and misconduct, prosecutorial improper waiver judge granted magistrate would have 6. The jury improper investigation. Oregon's held she would have relief because system Because we unconstitutional. Statement of Facts Balfour only that Reese exhausted his claim alleges find trial court errors re- ... Petitioner counsel, ineffective assistance sentencing, lated to in that the Petitioner to rule on the constitu- do not have occasion dangerous offender received an unlawful system. tionality of the Moreover, alleges sentence. Petitioner Balfour improper respect to claims error with on our 7. The district court based its decision trial, jury provide a waiver of a failure to Crawford, opinion Lyons 232 F.3d v. recent trial, impartial improper fair and resentenc- (9th Cir.2000). Lyons In we held that 666 counsel, inad- ing, inadequate assistance of presentation to state courts strict rules for fair inadequate appel- equate investigation and Lyons, petitioners. 232 applied pro to se See late counsel. F.3d at 669. Argument upon petitioner is The sentence levied Accordingly, we do not now have occasion subject improper in that Petitioner was the ineffective assis- to review the merits of case, any respect to this claim or other several errors with tance of sentencing, petition. including improper ineffective in Reese's habeas claims contained default, counsel, procedural a defaulted prosecutorial If there was miscon- assistance of 1190 failed to exhaust state “if petitioner of Review

I. Standard the court to which remedies and of a court’s dismissal The district present required tioner would habeas claim on § 2254 28 U.S.C. to meet the exhaustion claims in order presents is default procedural ground find the claims would now requirement de novo. See that we review sues of law Thomp- v. barred.” Coleman proeedurally 702, Kernan, 704 244 F.3d La v. Crosse 722, 1, 2546, son, 111 735 n. S.Ct. 501 U.S. Cir.2001). (9th (1991); see also O’Sulli- 115 L.Ed.2d 640 848-49, Boerckel, 838, 119 van v. II. Exhaustion (1999); 1728, 1 Francis 144 L.Ed.2d S.Ct. exhaust prisoner must A state (9th Cir.1990). Rison, v. 894 F.2d 354 on direct court remedies available state claims did not If Reese proceedings through collateral appeal or courts, de- proeedurally he grant consider before them, now barred because he is faulted Keeney See v. corpus habeas relief. ing going from back and Oregon’s time limits 1, 9, 112 U.S. S.Ct. Tamayo-Reyes, 504 them. trying again to exhaust See Or.Rev. (1992). Exhaustion L.Ed.2d 318 § 138.071 Stat. 28 U.S.C. required by statute. See 2254(b)(1)(A). satisfy the exhaus § “To Lyons Scope A. peti § requirement of tion carefully addressed Lyons ‘fairly presen[t] must tioners assessing helpful guidelines established to give courts order claims to fairly present federal claim was whether a pass upon opportunity the State the explained, As we ed the state court. prison of its alleged correct violations ” relief petitioner corpus for habeas “[A] Lyons Crawford, rights.’ ers’ federal § 2254 exhausts available under 28 U.S.C. (2000), 232 F.3d as modified remedies if he characterized (9th Cir.2001) Dun (quoting 247 F.3d 904 spe proceedings claims he raised in state 364, 365, 115 Henry, 513 S.Ct. can v. Lyons, claims.” cifically as federal (1995)). 887, 130 L.Ed.2d 865 short, “In (emphasis original). F.3d at 670 requirement has The exhaustion have either referenced petitioner must rooted in our commitment to long been provisions of the federal constitu specific federalism, 117 Royall, see Ex Parte U.S. case or cited to federal tion or statutes 241, 251-52, 734, L.Ed. 868 6 S.Ct. 29 clear that the Lyons law.” Id. also makes (1886), and hand in hand with our goes it implied allegation cannot be an specific processes. for state court State respect one; explicit there must be reference courts, courts, may like federal enforce Lyons, we held in “[A] federal law. As the federal constitution. See rights under in claim has been exhausted federal Levitt, 458-59, 455, 110 v. Tafftin petitioner both court unless state (1990). 792, 107 L.Ed.2d 887 S.Ct. explicit in state court and raised the claim claim was a ly fails to ex indicated then that petitioner

If a habeas claim, (emphasis origi ...” Id. at 669 proeedurally a it de one haust federal nal). defaulted proeedurally A claim is faulted. here, can be made a serious contention of cause claim could be considered with show- right showing to counsel on his ing prejudice, that since Reese no of cause and or a Annenakis, 222 appeals. See Ellis v. refusing claim would result in a PCR to hear the Cir.2000). (9th justice." Reese does not miscarriage F.3d 633 "fundamental See 722, 749-50, jus- miscarriage argue a fundamental Thompson, U.S. that Coleman v. 501 procedural default. would result from a L.Ed.2d 640 No tice 115 1191 Lyons’s requirement of ex- apparent com that parties agree that Reese The court, but the Lyons with at the PCR a must be plied plicitly presenting federal claim satisfy that Reese did not argues state highest satisfied at the levels of the state Appeals and Lyons at the system possibilities court to ensure that we must Supreme Court. So resolving the state courts federal issues petitioner a habeas must decide whether truly relating prisoners to state have been Lyons a state every with at level of comply A a lower request exhausted.9 court complying or if at one level— system court prospects exhaust alone is not sufficient to enough. court—is PCR on a claim. To of state court relief federal rule, Lyons scope of the assessing In highest requires exhaust that state Lyons, in noteworthy it is that specifically court must be alerted to authority tioner never cited federal presented. federal nature of the claim any at level of the state courts. his claims Court has United States Lyons id. at 667. courts in See state petitioner give that a habeas must said any explicitly never were alerted to opportunity” state courts “one full to de- contrast, In it cannot be denied issue. out “one carrying cide a federal claim explicitly that Reese alerted PCR complete round” of state’s supra, federal claim. See n. 2. court to properly in order to exhaust a process addition, In the PCR court decided O’Sullivan, claim. at 119 U.S. law, citing case first claim based Lyons petitioner S.Ct. 1728. held that Strickland general on the of effective issue trial, Jones then only by raising assistance at both can exhaust Barnes on effective assistance on appeal. the claim explicitly indicating supra, See accompanying n. 3 and text. Lyons, claim is a federal one. 232 F.3d at And so we must address underlying policies 669. The federalism Lyons requirement for fair is presentation and the concerns that underlie exhaustion explicit met assertion of a federal Lyons argue persuasively explicitness alone, law violation at the PCR court level merely any at one state necessary Lyons requires or whether some level level, highest instead at the but explicit stages at later assertion Following court that hears such claims. appellate process. Lyons, we hold that a habe- clarifying in To exhaust a claim the state the state’s petitioner as must indicate to must, courts, petitioner a habeas addi federal na- highest specifically court the Lyons, complying tion to to exhaust it. ture of a claim order court, if even highest claim to the state’s claim ex- Accordingly, presenting discretionary has control over is not at the PCR court itself plicitly O’Sullivan, its docket. See sufficient for exhaustion. Lyons If 119 S.Ct. 1728. Rather, understanding with this only that the state has intended to ensure Lyons, the issue becomes whether Reese a federal issue some chance to address Oregon Supreme alerted the Court so, courts do then it before the federal ineffective nature of his claim of federal by explicitly citing fed might be satisfied Because appellate assistance of counsel. once, to a lower-level court such eral law procedure, Oregon’s of rules of However, reject court. as the PCR two this issue we must address to resolve Lyons properly part read as view. (1) the federal na- questions: thus distinct Was of exhaustion law. It is parcel Edition, English Dictionary, up Oxford Second defined “To use com- 9. To exhaust is as (either thing); pletely a material or immaterial of; entirely.” expend the whole to consume claim, the of Reese’s to versus state nature raised properly Reese’s ture of v. and to Jones citations to Strickland (2) Appeals; of Did Oregon Court the “state Barnes in the PCR court’s decision the Ore- Lyons at comply Reese also clearly” any who read the decision that gon Supreme Court? federal presented question a Reese the court decided it on federal PCR Appeals Oregon B. Court of grounds. law, claims Oregon Under to the Ore- though Even Reese’s brief in a for review to presented not be Appeals did not cite federal gon Court of they are Court unless now raised on fed- authority on the issues Oregon of in front of Court first raised habeas, re- Oregon’s eral clear statement 9.20(2); R.App. P. State Appeals. See Or. and the PCR court’s citations quirement P.2d 317 Or. Castrejon, v. v. placed and Jones Barnes Strickland must therefore deter 621-22 We notice that it Oregon Appeals Court of on his fairly presented mine whether Reese that the reviewing question was federal of be Oregon claim to the Court federal explicit court decided PCR deciding fairly presented that he fore long Oregon as the Court grounds. So For Oregon claim to the Court. decision, court’s it Appeals read lower presented if the federal claim was raising would have seen that Reese was re- Oregon Appeals, Oregon Court of federal issue. Whatever else do, confident, viewing might court we are have Supreme Court need not considered decision, ground as a of our explicitly matter that federal claim no how the decision it is reviewing reads raised to it. reviewing summarily affirming that before Here, ap brief to the decision. citations, peals court lacked federal but our views: Reese raised To summarize under dispositive that is not issue ineffective coun- assistance Lyons the unusual facts of this case. re authority sel claim and cited federal quires explicitly that a state court be alert court. The petition to the PCR PCR nature of a claim. But it ed to issue, deciding law in cited necessarily require that federal does not means the Oregon and under law this opening citations be included brief or grounds. claim was decided on federal petition for review when a claim is ex the claim in his brief to the Reese included nature of pressly asserted and and the Appeals, Court explicit Appeals summarily that claim is from the face of affirmed the Court decision, court’s which had been PCR decision under review. made on the basis of federal law. Based appealing, decision Reese was PCR factors, the Oregon on these we hold that which the af- Appeals “surely alerted to [was] Court reasoning, firmed without further did ex- asserting was] the fact that claims [Reese Strickland, plicitly cite federal law— under United States Constitution.” support the denial of Jones Barnes —to Duncan, 365-66, 115 S.Ct. 887. assistance claims. Ore- Reese’s ineffective gon requires the to “state law PCR court Oregon Supreme Court C. clearly grounds upon which the cause presented the fed Because determined, and whether a state or claim to the eral both, question, presented or in turn Oregon Supreme the Court could § 138.640 decided.” Or.Rev.Stat. if properly presented review the claim Given there is no other state- Oregon Supreme Court itself. dispositive final and issue is thus whether

ment from the PCR court on the federal Lyons fairly Reese satisfied presented case, is asked to review—in this the Ore- gon here, Court of Oregon Supreme his claims decision. But Court. Court of Appeals granted cited the federal constitution in summary affirmance and did not speak argument section Su- except by merits affirming what the preme petition, Court but did explicitly so PCR court had said. We conclude that it to support claims other than ineffec- that, is appropriate presume when faced tive assistance of counsel. Here with a summary affirmance from the Ore- part is the petition offering gon Su- “Moreover, authority: since Peti- preme Court would have read the PCR tioner asserts he was coerced and threat- court’s substantive Any decision. other ened counsel to waive right to trial conclusion would not do ap- credit to the by jury, 5th, Petitioner believes his 6th pellate process. review For whatever var- and 14th rights amendment have been vio- iations be appropriate under discre- lated.” tionary procedures, an appellate court cannot fairly review a decision with- A difficulty for Reese is that this out knowing its content. sentence offers citations to support only Perhaps might argued it be to the con- counsel, those claims involving trial trary that Court, the Oregon Supreme appellate counsel. The rule is settled that having only discretionary jurisdiction, need citation to authority for one claim not read the underlying opinion be- in a petition habeas is not transferred to deciding fore accept whether to an appeal. all the other claims in peti contained Oregon Supreme might Court decide tion. Lyons, See 232 F.3d at 669-70. To review, a petition runs, argument fairly present a federal habeas claim ato based on what ponder court, it is petition essential that the the underlying opinion only if and after er way provide must some a reference discretionary granted. review is Whatever to federal authority to support partic practical underlying concerns such a ular claim. See id. position, reject we it in principle. For However, we reach here a firm and un- even if discretionary, review is there is no way for the Oregon Supreme mistakable conclusion that Reese Court nonethe- exercise informed discretion about ac- fairly presented less his federal claim as- cepting appeal unless it considers the con- serting ineffective counsel to the tent of the decision under review. A dis- Oregon Supreme Coui’t. explained As we cretionary review is still to be a rational in our discussion of the review Oregon Court of Appeals, simply by read- go But we need so far as to hold that decision, ing the PCR court the Oregon a rational discretionary process review Supreme Court would have been alerted always must include some review of the for ineffective assistance of underlying decision. if For even a state appellate counsel was decided and affirmed supreme court could rationally basis of federal law. decide grant whether review without The question then is should reading the underlying opinion, it does not presume that Court follow that a claim must be visible from decision, read the PCR court which explic- the face of the underlying petition alone itly cited federal law. If “fairly presented” purposes our reasoned, had rendered a sub- assessing exhaustion. The United States decision, stantive might it be argued that Supreme explicitly Court has explained presume only we should that a state su- that proper exhaustion requires preme court would read the decision petitioner that it to give opportu- the State “a fair

1194 circumstances, pre- it must be Edwards Under these upon claims].” to nity pass [his 446, 453, that, deciding deny 529 to dis- Carpenter, sumed before (2000) (emphasis review, 146 L.Ed.2d 518 Oregon cretionary Supreme omitted). also See quotations and internal the PCR court decision Court reviewed (“To satisfy the F.3d at 668 Lyons, 232 that have alerted the court to should §of requirement exhaustion of Reese’s claim. federal nature ‘fairly presen[t] must petitioners Oregon Supreme Court was thus on give in state courts order to claims to the nature of specifically notice of the pass upon to and opportunity the State the of ineffective of Reese’s claim assistance alleged prison- of its to correct violations appellate counsel. We hold that Reese ” Duncan, (quoting rights.’ ers’ federal presented his claim inef- 887)). Comity re- U.S. at S.Ct. to fective assistance counsel that rule if the state quires only we not Oregon exhausted to opportunity first court has not it. oppor- claims. Where hear federal habeas existed, by an tunity comity is not offended CONCLUSION foregoes. that opportunity the state We reverse the district court’s dismissal Here, that the Su- we conclude the claim of ineffective assistance opportunity. that A preme Court had further appellate counsel. We remand for certainly op- court has the supreme state that proceedings on issue.10 read for review portunity to court to be in the lower decision claimed AND REMANDED. REVERSED grant to deciding error before whether NELSON, Judge, T.G. Circuit discretionary It is in sense this dissenting. presume that we opinion. Court read Reese’s PCR court respectfully I must dissent. I would arguendo But that the assuming ground affirm the district court on the that not lower Supreme Court chooses to read procedurally defaulted his claim for deciding to opinions when whether ineffective assistance of review, it our ex- grant would control it to by failing fairly analysis. in assumed haustion For Supreme Court. case, that court chosen not to take has “Judges pigs, hunting are not like advantage provided, of an opportunity truffles At buried briefs.”1 least federal comity longer are interests no not, are our appellate judges according to issue. precedent.2 majority Yet the hold would Here, in the PCR court decid- summary, supreme justices to a different law; ed the claim on basis of federal through requiring them root standard — Oregon’s put review- procedural rules legal support the record for rare truffles of ing courts on notice PCR court may complete incompletely raised required clearly decision was its petitions of the thousands of one decision; any ground for review of they grant every decide must PCR court decision would have disclosed year. they engage if choose not to And basis; its federal law and the have, behavior, porcine they according summary issued op- chosen majority, affirmance of the court’s decision. “take PCR (9th Cir.1997) (internal quotation express opinion 10. no merits marks We omitted). claim. Reese's citation Group, 1. Entertainment Research v. Gene- Inc. See, e.g., id. Inc., Group, 122 F.3d sis Creative them a claim in it presented petition- fairly presented order to deem portunity” to review that claim. The and petitioner’s thing, er exhausted.4 For one too many clear and majority despite binding presented so holds for petitions review are to state what constitutes fair precedent regarding expect courts5 to and law judges clerks to clear presentation despite pro- and through search to find support record rales. cedural a claim presented. for that is not Depart- ing from requirements of fair presen- In order a federal claim present tation thus renders hollow our professed courts, petitioner must “include interest in providing supreme courts specific to a federal constitution- reference with an opportunity review federal guarantee, al as well as statement of the they claims. will Practically, have no such petitioner facts that entitle the to relief.”3 opportunity they if required are to search Thus, presentation requires fair the asser- record each time incompletely sup- of the law supporting tion facts and the ported appears claim before them. each claim. Oregon procedural rales governing the concludes, majority I agree, and presentation petitions of for review to the fair presentation must occur every at Oregon Supreme require also pre- Court of level the state post-conviction review legal support every sentation for Thus, process. agree that Reese was in petition. Oregon claim a Appel- Rule of required to factual present both the 9.05(3) late requires Procedure support for legal his claim ineffective contain; in peti- assistance his (a) A prayer for for Oregon Supreme tion review before the however, (b) disagree, We Court. Concise legal statements did question so. questions presented he or on re- view and of the rule of law that petition- any Reese did not cite basis for established, proposes er if review is claim his of ineffective assistance of coun- allowed. the Oregon Supreme sel before Court. (c) A concise statement of each reason Thus, in my he failed opinion, fairly to asserted for reversal or modification of the claim court. to that The ma- the decision of the Court of Appeals, holds, however, jority that the fact that the including appropriate authorities. postconviction first court cited federal (d) A in short statement of facts relevant rejection its the claim cases miracu- lously appeal, correctly to the facts procedural saves that from but stated claim in opinion of the Court of Oregon Supreme default. The Court could in should not through have sifted the record be restated.

case, reasons, majority (e) find the legal A brief related to each argument support missing from claim in review, reason if asserted for desired. Thus, fairly presented tion. (f) A specific why statement of reasons Court importance have presented issues me, majority’s opinion. To is not fair beyond particular require case and presentation. decision Court. A good (g) copy There are of the requiring reasons decision Court including citation of law supporting opinion facts and the court’s 152, 162-63, 1998, 8,627 Gray petitions 3. 5.In review were Netherlands supreme filed for state court review (1996). in Cali- 116 S.Ct. 135 L.Ed.2d Arizona; fornia; 1,366 1,146 Washing- ton; Oregon. See State 962 in See, e.g., Gray, Statistics, 1998, Caseload National Center for 2074; Shumway, at 987. 223 F.3d State Courts 1196-1204 Petitioner-Appellant, KILLIAN, Gloria concurring opin- any dissenting ions.6

Thus, require rules also procedural support for a presentation legal POOLE, Warden, Respondent- Susan every petition for review. Appellee. rules note is the fact Worthy of appeals’ the court of deci- require also No. 00-16477. re- petition but do not accompany sion decision to accom- quire lower court’s States Court of United makes sense— petition. This pany Ninth Circuit. all, Court will after of the court im- reviewing the decision Dec. 2001. Argued Submitted grant if it to mediately below decides rule undermines review. This Filed March case, majority this assumption however, that the trial deci- naturally

will look court’s deciding grant

sion when rule does not

petition for trial court require opinion

even

accompany petition. I

By dissenting, do not mean diminish disturbing history of this case.

parade lawyers assigned Reese and representation

the mistakes made in his However, un-

are an embarrassment.' history of case does not

fortunate

merit the creation of an odd unreason- presenta- of fair exception

able rules good

tion. are for those There reasons adage

rules. “hard make The old cases I law” here. apply

bad seems dissent. 9.05(3). R.App.

6. Or. P.

Case Details

Case Name: Michael Reese v. George H. Baldwin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 12, 2002

Citation: 282 F.3d 1184

Docket Number: 01-35153

Court Abbreviation: 9th Cir.