Farmer v. Baldwin

• Decision Date: 26 March 2009
• Docket Number: (USDC CV 02-1565-ALA.,USCA 06-35635.,SC S055187).
• Citation: 346 Or. 67,205 P.3d 871
• Parties: George Edward FARMER, Petitioner, v. George H. BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Respondent.
• Court: Oregon Supreme Court

205 P.3d 871

346 Or. 67

George Edward FARMER, Petitioner, v. George H. BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Respondent.

(USDC CV 02-1565-ALA.

USCA 06-35635.

SC S055187).

Supreme Court of Oregon, En Banc.

Argued and Submitted June 4, 2008.

Decided March 26, 2009.

Lisa Hay, Assistant Federal Public Defender, Portland, argued the cause and filed the brief for petitioner.

Mary Williams, Solicitor General, Salem, argued the cause and filed the brief for respondent. With her on the brief was Hardy Myers, Attorney General.

DURHAM, J.

This case is before this court on a certified question of Oregon law from the United States Court of Appeals for the Ninth Circuit. Farmer v. Baldwin, 497 F.3d 1050 (9th Cir.2007). Under federal law, a petitioner generally may not obtain a writ of habeas corpus without first exhausting the remedies available to him in state court. 28 U.S.C. § 2254(b)(1)(A).¹ To exhaust those remedies, the petitioner "must fairly present his claims in each appropriate state court," in a manner that would "[alert] that court to the federal nature of the claim." Farmer, 497 F.3d at 1053 (internal quotation marks omitted). The Ninth Circuit asks this court to determine whether, on the facts of this case, petitioner properly raised his federal claims in this court prior to seeking federal habeas relief.

I. FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute. A jury convicted petitioner George Edward Farmer of murder, and the trial court imposed a sentence of 25 years to life imprisonment. Following an unsuccessful appeal, State v. Farmer, 116 Or.App. 673, 842 P.2d 465 (1992), rev'd, 317 Or. 220, 856 P.2d 623 (1993), petitioner sought post-conviction relief (PCR). Petitioner raised nearly 100 challenges to his conviction, the bulk of which were based on both the state and federal constitutions. The PCR court denied relief.

Petitioner appealed his post-conviction case, but his appellate attorney apparently could not identify any meritorious issues on appeal. Accordingly, the attorney submitted a brief in accordance with the procedures that this court announced in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991), and codified at Oregon Rule of Appellate Procedure (ORAP) 5.90,² which we set out below.

The attorney prepared section A, which identified the brief as a Balfour brief, and stated:

"Counsel has complied with the provisions of Balfour by contacting petitioner and post-conviction trial counsel for petitioner, in an effort to identify any nonfrivolous issues for appeal. Petitioner has been offered an opportunity to draft and submit a Section B brief with the assistance of counsel.

"Petitioner has decided to attach a copy of his post conviction petition, in the hopes of at least preserving all the issues presented therein."

The brief contained no section identified as "section B," but petitioner did attach a copy of his post-conviction petition. The Court of Appeals affirmed the decision of the PCR court without opinion. Farmer v. Baldwin, 182 Or.App. 292, 49 P.3d 851 (2002).

Petitioner sought review in this court. The petition for review did not identify a section A or section B. Instead, under the heading "Statement of Facts," the petition stated that "[p]etitioner has filed a Petition for Post-Conviction Relief and makes all the allegations set forth therein." Under the heading "Statement of reasons why issue requires Supreme Court decision," the petition stated that "[t]he petitioner's position is also set forth in the appellant's [B]alfour brief." Otherwise, the petition did not identify any legal questions presented on review. Petitioner did not attach a copy of his appellate brief or his post-conviction petition to the petition for review. This court denied review of petitioner's case. Farmer v. Baldwin, 334 Or. 631, 54 P.3d 1041 (2002).

Petitioner then filed for a writ of habeas corpus in federal court. The federal district court found that petitioner had not exhausted his state remedies prior to filing for habeas relief because he had failed to fairly present his federal claims to this court:

"[T]he petition for review submitted to the Oregon Supreme Court did not identify a federal claim or allege a violation of federal constitutional law. Consequently, to be apprised of petitioner's federal claims, the Oregon Supreme Court would have had to `read beyond' the petition for review and the appellate briefing to discover petitioner's alleged federal claims. Specifically, the Oregon Supreme Court would have had to review petitioner's Balfour brief presented to the Oregon Court of Appeals and peruse the attached, fifteen-page amended PCR petition alleging almost 100 grounds for relief."

Farmer v. Baldwin, Civ No 02-1565-AA, 2006 WL 1766184 at *3 (D.Or. June 22, 2006). Accordingly, the district court dismissed the petition.

Petitioner appealed to the Ninth Circuit, arguing that he had fairly presented his federal claims to this court. To determine whether that was the case, the Ninth Circuit examined the 2001 Oregon Rules of Appellate Procedure.³ The court found that the petition for review had failed to fairly present petitioner's claims under ORAP 9.05. However, the court held that the petition actually was governed by the Balfour standard for pleading set forth at ORAP 5.90. The court then noted that it was "simply unaware of the extent to which the Oregon Supreme Court may be flexible in applying that rule," particularly when presented with a petition for review that referred to a Balfour brief that was filed in the Court of Appeals. Farmer, 497 F.3d at 1054. Accordingly, the Ninth Circuit certified the following question to this court:

"Whether, under its rules or practice, the Oregon Supreme Court would deem a federal question not properly raised before it, when that question has been presented by means of an attachment to a Balfour brief filed in the Court of Appeals, and the attachment served as (but was not labeled as) Section B of said brief, and the petitioner specifically states in his petition to the Supreme Court that his reasons for seeking review are set forth in the Balfour brief."

Id. at 1055-56. This court accepted the certified question.

II. APPLICATION OF APPELLATE PROCEDURAL RULES

Before we answer that question, there is a point that we must clarify about our answer. As we understand it, the Ninth Circuit does not ask us to determine whether the petitioner in the instant case has fairly presented his claims to this court. Fair presentation is a question of federal law. Rather, we assume that the Ninth Circuit asks us to determine whether petitioner presented his claims in a manner that would have allowed us to exercise our discretion to review them. We will answer that question by reference to Oregon appellate procedure. In the latter part of this opinion, we present other information that may assist the Ninth Circuit in determining, in light of our answer, whether petitioner has satisfied the federal fair presentation requirement.

First, we address some general arguments that the state makes regarding appellate procedure. The state asserts that this court will not "scour the petitioner's Court of Appeals briefs as part of its consideration of the petition for review." Instead, the state insists that this court will consider briefs filed in the Court of Appeals "only after the petition has been granted."

When this court considers a petition for review of a decision of the Court of Appeals, briefs filed in the Court of Appeals are available to this court and will be reviewed at that stage if the court or any justice desires to do so. Nothing requires the court or any justice to consider only the petition for review in deciding whether to grant review. The Oregon Rules of Appellate Procedure make that clear. ORAP 9.07(15) states that one of this court's criteria for granting review is "[w]hether the issues are well presented in the briefs." The term "briefs" necessarily refers to the briefs filed in the Court of Appeals, because the rules do not give leave to the parties to file briefs in the Supreme Court until after this court grants review. See ORAP 9.17(1) (so stating).⁴ Likewise, ORAP 9.10(1) provides that, in the absence of a response to the petition for review, "the party's brief in the Court of Appeals will be considered as the response." Finally, ORAP 9.05(4)(d) states that the petition for review shall contain "[i]f desired, and space permitting, a brief argument concerning the legal question or questions presented on review." At the same time, one of this court's criteria for granting review is "[w]hether the Court of Appeals decision appears to be wrong." ORAP 9.07(14). It is doubtful that a party could demonstrate that a decision of the Court of Appeals was in error without reference to a legal argument. If a legal argument is not required in the petition for review—and the rules clearly state that a party need only include such an argument "[i]f desired"—it follows that this court may consider briefs filed in the Court of Appeals to identify and evaluate a party's legal arguments on a question presented on review. The appellate brief filed in the Court of Appeals can be the most likely source for those arguments.⁵

The state also asserts that a petition for review may not incorporate appellate briefs by reference. No provision of the Oregon Rules of Appellate Procedure expressly restricts the use of that drafting technique in preparing a petition for review. It is generally true that our rules discourage undue repetition in briefing a party's arguments. Incorporating arguments by means of a reference to briefs filed at an earlier stage of proceedings can foster that goal. ORAP 9.05(4)(d) illustrates that point. As stated above, that rule requires a petition for review to contain a brief argument related to each reason asserted for review, "[i]f desired." ORAP 9.05(4)(d) thus implies that a...