Farmer v. Baldwin

• Decision Date: 15 August 2007
• Docket Number: No. 06-35635.,06-35635.
• Citation: 497 F.3d 1050
• Parties: George Edward FARMER, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee.Court for the District of Oregon, 2006 WL
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.3d 1050

George Edward FARMER, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee.Court for the District of Oregon, 2006 WL

No. 06-35635.

United States Court of Appeals, Ninth Circuit.

Filed August 15, 2007.

Lisa Hay, Steven T. Wax, Assistant Federal Public Defenders, Portland, OR, for petitioner-appellant.

Erin C. Lagesen, Assistant Attorney General, Salem, OR, for respondent-appellee.

Before: ALFRED T. GOODWIN, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

STEPHEN REINHARDT, Circuit Judge:

ORDER

George Edward Farmer ("Farmer") appeals the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254, arising from his conviction in Oregon state court on one count of murder. The district court did not reach the merits of Farmer's claims, ruling instead that he failed to exhaust available state remedies, and that his claims are now procedurally defaulted.

Farmer contends on appeal that the district court erred in so concluding, arguing that because he complied with Oregon procedural rules to present his claims to the state courts, those claims are now exhausted and warrant federal habeas review. Because this contention raises an important and unresolved issue of Oregon law, we respectfully CERTIFY A QUESTION for review by the Supreme Court of Oregon. We offer the following statement of relevant facts and explanation of the "nature of the controversy in which the question [ ] arose." OR. REV. STAT. § 28.210(2) (2005).

BACKGROUND

An Oregon state court jury convicted Farmer of murder and the trial court sentenced him to twenty-five years to life imprisonment. Farmer appealed his sentence only, and the Oregon Supreme Court ultimately affirmed the trial court's judgment. State v. Farmer, 317 Or. 220, 856 P.2d 623 (1993). Farmer thereafter sought state post-conviction relief, alleging in his post-conviction petition to the trial court that he had been denied adequate assistance of both trial and appellate counsel, in violation of the Sixth and Fourteenth Amendments. He also claimed that both his conviction and sentence violated his federal guarantees of due process and equal protection, and that he had been searched in violation of the Fourth Amendment.

On appeal from the trial court's denial of Farmer's post-conviction petition, his appellate attorney in October 2001 attempted to submit a "no-merits" brief according to the procedure outlined in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). Balfour calls for a two-part brief when an attorney representing an indigent criminal defendant cannot identify a non-frivolous claim to raise on appeal. Balfour, 814 P.2d at 1079-80. Section A, prepared and signed by the attorney, must contain a statement of the case sufficient to apprise the court of the appeal's jurisdictional basis, but it may not contain any assignment of error or argument. Id. at 1080. If the client wishes to raise an issue or issues the attorney deems frivolous, the brief must contain Section B, which "shall raise any claim of error requested by the client ... in the manner that the client wishes to raise it," and is signed by the client alone. Id. Farmer's appellate attorney drafted Section A of the Balfour brief, in which he stated that he had conferred with Farmer and Farmer's post-conviction trial counsel in an effort to identify any non-frivolous claim to raise on appeal. Section A did not contain any assignment of error, but did state that Farmer "has filed a Petition for Post-Conviction Relief and makes all the allegations set forth therein." This portion of the brief also stated that Farmer was offered an opportunity to draft and submit Section B with the assistance of counsel, but that he instead chose "to attach a copy of his post-conviction petition, in the hopes of at least preserving all the issues presented therein." Farmer's post-conviction petition was appended to Section A of the brief in original form, but without a heading identifying it as "Section B" of the brief.

After the Oregon Court of Appeals affirmed without opinion, Farmer filed a petition for review in the Oregon Supreme Court in July 2002. On the petition's opening page Farmer stated that he intended to rely on the petition itself and the briefs filed in the court of appeals. In the body of his petition Farmer raised no claims and made no assignments of error, but stated inter alia that: (1) the reasons justifying reversal of the court of appeals "are set forth in the appellate brief"; and (2) his position was "set forth in the ... [B]alfour brief." Farmer did not attach a copy of the Balfour brief to his petition for review. The Oregon Supreme Court summarily denied review. Farmer v. Baldwin, 334 Or. 631, 54 P.3d 1041 (2002).

Farmer thereafter filed the instant habeas petition, in which he again alleged that he had been deprived of his federal right to effective trial and appellate assistance, that his federal guarantees of due process and equal protection had been violated, and that he was searched in violation of the Fourth Amendment. The district court concluded that because Farmer did not "fairly present" his federal claims to the Oregon Supreme Court, those claims were not exhausted and federal habeas review was therefore precluded under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Further, reasoning that Farmer could no longer present his claims to the Oregon Supreme Court because they were untimely under Oregon's procedural rules, the district court determined those claims were procedurally defaulted for purposes of federal habeas review. Because Farmer had shown neither the cause nor prejudice necessary to cure this procedural default, the district court dismissed his habeas petition. Farmer timely appealed to this court.

DISCUSSION

As a general matter, no federal habeas relief is warranted until a state prisoner has exhausted all available state remedies. 28 U.S.C. § 2254(b)(1). This so-called "exhaustion requirement" is intended to afford "the state courts a meaningful opportunity to consider allegations of legal error" before a federal habeas court may review a prisoner's claims. Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). "To provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam)).

Our central inquiry is whether Farmer satisfied this "fair presentation" requirement in his petition for review to the Oregon Supreme Court, thereby exhausting his available state remedies, and authorizing him to seek federal habeas relief. In particular, we inquire whether Farmer's petition for review, which refers directly and repeatedly to his Balfour brief, to which his original post-conviction petition was attached in place of (although not labeled as) Section B, and which attachment explicitly stated his federal claims, constitutes presentation of those claims to the Oregon Supreme Court under Oregon's rules or practice. This inquiry turns directly on the construction and application of several Oregon Rules of Appellate Procedure, as well as on the practice followed by the Oregon Supreme Court, and presents questions of Oregon law for which we have found no guidance in the case law from either the Oregon Court of Appeals or the Oregon Supreme Court.

I. Oregon Rule of Appellate Procedure 9.05

As an initial matter, we are mindful that Farmer's petition for review to the Oregon Supreme Court did not comply with the state's appellate rules generally governing such petitions. The operative rule at the time Farmer sought review broadly required all petitions to the Oregon Supreme Court to contain: a concise statement of the legal question presented for review; the rule of law the petitioner proposed to be established; a concise statement of each reason asserted for reversal or modification of the Court of Appeals' decision; a short statement of facts; and a statement of specific reasons why the issues presented had importance beyond the particular case and warranted decision by the Supreme Court. Or. R.App. P. 9.05(3) (2001). Farmer's petition did not specifically contain any of the required elements, but rather referred the Oregon Supreme Court to his Balfour brief — including the petition attached thereto in lieu of Section B — filed in the Court of Appeals in an attempt to satisfy the applicable requirements. We have no trouble concluding that the Oregon Supreme Court would find Farmer's petition lacking under a straightforward application of Rule 9.05(3) (2001).¹ However, we are also persuaded that the lower Balfour pleading standard, codified in Oregon Rule of Appellate Procedure 5.90, applies to Farmer's petition. See Or. R.App. P. 9.05 cmt. (2001) (referring to Rule 5.90(5) as the governing rule "regarding filing a petition for review where a `Balfour' brief was filed on behalf of the appellant in the Court of Appeals"). We are simply unaware of the extent to which the Oregon Supreme Court may be flexible in applying that rule, particularly with respect to a petitioner's referring the Court to a statement of claims set forth in a Balfour brief filed in the Court of Appeals.

II. Balfour and Oregon Rule of Appellate Procedure 5.90

Grappling with the competing considerations presented when an indigent criminal defendant wishes to appeal but his appointed counsel does not identify any meritorious grounds to raise, the Oregon Supreme Court in Balfour considered first whether an attorney has an ethical duty to withdraw under such...