Batchelor v. Cupp

Decision Date29 November 1982
Docket NumberNo. 81-3037,81-3037
Citation693 F.2d 859
Parties12 Fed. R. Evid. Serv. 139 Ozzie BATCHELOR, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, James Redden, Solicitor General, Walter L. Barr, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Hollis McMilan, Fed. Public Defender, Portland, Or., for appellant.

Virginia L. Linden, Salem, Or., for appellees.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and POOLE, Circuit Judges, and WILKINS, * District Judge.

GOODWIN, Circuit Judge:

Ozzie Batchelor, an Oregon state prisoner, appeals the denial of his petition for a writ of habeas corpus. The appeal presents a question raised by a large number of habeas appeals from Oregon--whether a petitioner's failure to seek review in the Oregon Supreme Court bars federal review of the merits of the prisoner's federal constitutional claims.

It appears that the prisoner's default results from an informal arrangement by which Oregon public defenders have not sought review of their clients' cases beyond the Oregon Court of Appeals. The Oregon Attorney General has been routinely conceding that state remedies have been exhausted. Although we disapprove of this arrangement, we conclude that we are obligated to reach the merits of the federal claims in this case because no state remedies are available to Batchelor.

I

Batchelor was convicted in Multnomah County Circuit Court of first degree felony murder and burglary and sentenced to life imprisonment. The Oregon Court of Appeals reversed the burglary conviction but affirmed the felony murder conviction. State v. Batchelor, 34 Or.App. 47, 578 P.2d 409 (1978). Batchelor did not seek review in the Oregon Supreme Court.

Batchelor then filed a petition for a writ of habeas corpus in district court. In its return the state acknowledged that Batchelor had raised the same issues in his direct state appeal and asserted that Batchelor had exhausted available state remedies.

The magistrate to whom this case was assigned did not consider whether Batchelor had exhausted state remedies because the point was not presented. The district court adopted the magistrate's findings and recommendations without considering exhaustion and dismissed the petition on the merits. Batchelor filed a timely notice of appeal and the district court issued a certificate of probable cause.

Because the record on appeal suggested that Batchelor had never presented his contentions to the Oregon Supreme Court, we remanded the case to the district court to allow it to reconsider the possible exhaustion issue. On remand, the district court found that: (1) Batchelor had not presented his claims to the Oregon Supreme Court; (2) Batchelor had not intentionally by-passed that remedy; and (3) no other state remedies were available to Batchelor.

At oral argument we learned why Batchelor and many other Oregon state habeas petitioners fail to present their claims to the Oregon Supreme Court. The Oregon public defenders agreed some time ago that they would not routinely seek discretionary review in the Oregon Supreme Court after the Oregon Court of Appeals ruled against their clients in direct and collateral criminal appeals. The Oregon Attorney General's office at least tacitly agreed in return that it would not argue in response to a federal habeas petition that a petitioner had not exhausted state remedies on the sole ground that the petitioner had not sought review in the Oregon Supreme Court.

II

Two related but distinct doctrines of federal habeas corpus law--exhaustion of state remedies and state procedural default--play important roles in federal habeas proceedings brought by state prisoners. Both doctrines stem from the basic principle of federalism that federal courts should accord due respect to the role of state courts in enforcing the prohibition against unconstitutional confinement embodied in the writ of habeas corpus. The exhaustion doctrine also serves the interests of judicial economy. State courts should have the first opportunity to examine the lawfulness of a state prisoner's confinement. If the prisoner's claim is meritorious, and if the state remedy is prompt and complete, there is no need to bring post-conviction proceedings in federal courts.

The procedural default doctrine is designed to ensure that state courts have a genuine opportunity to reach the merits of a prisoner's federal contentions. A prisoner's inexcusable failure to comply with a reasonable state procedure to raise federal issues in state court may bar the prisoner from raising those issues in federal court. Engle v. Isaac, --- U.S. ----, ---- - ----, 102 S.Ct. 1558, 1572-1575, 71 L.Ed.2d 783 (1982).

A. Exhaustion of State Remedies

The exhaustion doctrine, first developed in case law, is now codified in 28 U.S.C. Sec. 2254. 1 A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim, Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir.1979); Cartwright v. Cupp, 650 F.2d 1103 (9th Cir.1981) (per curiam), cert. denied, --- U.S. ----, 102 S.Ct. 1722, 72 L.Ed.2d 142 (1982); or (2) by showing that at the time the petitioner files the habeas petition in federal court no state remedies are still available to the petitioner and the petitioner had not deliberately by-passed the state remedies. The district court and this court may examine the exhaustion question sua sponte. Campbell v. Crist, 647 F.2d 956, 957 (9th Cir.1981).

The State asserted in district court that Batchelor had exhausted his state remedies. It based that assertion on the erroneous view that Batchelor had satisfied the exhaustion requirement by presenting the claims to the Oregon Court of Appeals, even though he never sought review in the Oregon Supreme Court. That view is contradicted by Sec. 2254(c) and by Carothers v. Rhay, 594 F.2d at 228, and Cartwright v. Cupp, 650 F.2d at 1104, both of which expressly require the petitioner to present the claims to the highest state court.

Nonetheless, the state again urges us to adopt the rule that an Oregon state prisoner satisfies the exhaustion requirement merely by presenting the claims to the Oregon Court of Appeals. The Attorney General asserts that the Oregon Supreme Court is a policy-making court, not an error-correcting court, and that it would be inappropriate to require the Oregon Supreme Court to review a large number of petitions in criminal matters to uncover mere trial errors, even those of constitutional magnitude.

Even were we not compelled by Ninth Circuit precedent to do so, we would reject the state's argument. In our system of federalism, state courts, like federal courts, have a duty to protect rights secured by the Constitution. See Stone v. Powell, 428 U.S. 465, 493-494, n. 35, 96 S.Ct. 3037, 3051-3052, n. 35, 49 L.Ed.2d 1067 (1976) (citing Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 341-44, 4 L.Ed. 97 (1816)); Ex Parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System, 330-60 (2d ed. 1973) (Henry Hart's "Dialogue": "In the scheme of the Constitution [the state courts] are the primary guarantors of constitutional rights." Id., at 359). In many cases the state courts can protect the rights of their citizens under their own state constitutions, without ever reaching federal questions.

Oregon places great value upon limiting the Oregon Supreme Court's workload, but the public defender should not be a broker for the cases that will or will not be presented to the Oregon Supreme Court. Public defenders' responsibility to represent their clients forcefully cannot be diluted by an option not to seek review of "unimportant" cases. Any system that would vest in the public defender an option to bypass state Supreme Court review deliberately while retaining the possibility of federal habeas corpus review is inconsistent with Sec. 2254.

We are confident that Oregon can employ creative summary procedures so that state prisoners may present their federal constitutional claims to the Oregon Supreme Court before coming to federal court. In the future, the exhaustion requirement of Sec. 2254 will not be deemed satisfied until the petitioner demonstrates that his claim has been presented to the state's highest court, or that no state remedy is available and that the nonavailability was not caused by a deliberate bypass.

Although Batchelor did not affirmatively satisfy the exhaustion requirement, the district court correctly determined that he had no available state remedies when he filed his federal habeas petition. The time for seeking review of the judgment of the Oregon Court of Appeals had long since lapsed and state post-conviction relief was unavailable. See Or.Rev.Stat. Sec. 138.550(2) (precluding post-conviction relief unless claim was not asserted and could not reasonably have been asserted on direct appellate review). This state of affairs brings us to the question of passive exhaustion. By failing to act the prisoner forfeited whatever state court review may have been available but for that failure. The prisoner comes into federal court with a constitutional claim for which there is, in fact, no state remedy, and the question is whether the federal court should hear it. See Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

This court recently returned a case to the district court for an investigation into the reasons for the failure to exhaust with reference to specific questions which appeared to have been raised for the first time in federal court. See Ventura v. Cupp, 690 F.2d 740, (9th Cir., 1982). In Ventura, however, the record revealed that different issues had been raised by the petitioner at different levels of review, and no...

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