Kellotat v. Cupp

• Decision Date: 03 November 1983
• Docket Number: No. 82-3518,82-3518
• Citation: 719 F.2d 1027
• Parties: Philip Charles KELLOTAT, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary; The Attorney General of the State of Oregon, David Frohnmayer, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1027

719 F.2d 1027

Philip Charles KELLOTAT, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary;

The Attorney General of the State of Oregon, David

Frohnmayer, Respondents-Appellees.

No. 82-3518.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 1983.

Decided Nov. 3, 1983.

Pamela J. Griffith, Portland, Or., for petitioner-appellant.

Virginia L. Linder, Deputy Atty. Gen., Salem, Or., for respondents-appellees.

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

Before SNEED, FARRIS and CANBY, Circuit Judges.

CANBY, Circuit Judge:

The district court dismissed Kellotat's habeas corpus petition for failure to exhaust state remedies. We affirm.

FACTS

Kellotat, representing himself, was convicted of robbery in Oregon Circuit Court. He appealed on several grounds to the Oregon Court of Appeals, where an attorney was appointed to represent him. Kellotat became dissatisfied with the attorney, however, because the attorney refused to raise certain issues on appeal. At Kellotat's request, the attorney filed a motion to withdraw and a motion to appoint alternate counsel. The Oregon Court of Appeals granted the motion to withdraw, but denied the request to appoint new counsel.

Kellotat unsuccessfully petitioned the Oregon Supreme Court for interlocutory review of the order refusing to appoint substitute counsel. He then proceeded pro se before the Court of Appeals. The court affirmed his conviction, and Kellotat sought review by the Oregon Supreme Court. In this second petition for review, Kellotat did not raise his claim regarding denial of appellate counsel. The Oregon Supreme Court again declined to review the case.

Kellotat sought post-conviction relief in federal district court pursuant to 28 U.S.C. Sec. 2254 (1976). He alleged that his constitutional rights had been violated by three errors at trial and by the refusal to appoint substitute counsel for direct appeal. The district judge found that Kellotat had not exhausted state remedies for the claimed denial of appellate counsel, and consequently dismissed the entire petition as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Accord Gonzales v. Stone, 546 F.2d 807, 810 (9th Cir.1976).

DISCUSSION

For reasons of federalism, 28 U.S.C. Sec. 2254 requires federal courts to give the states an initial opportunity to correct alleged violations of its prisoners' federal rights. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). Prisoners must therefore exhaust available state remedies before presenting their claims to federal courts. Exhaustion, however, does not demand "repetitious applications" to state courts; a prisoner need only fairly present his claims to the state courts once. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). We have held that a petitioner can satisfy the exhaustion requirement in either of two ways: (1) by presenting the state supreme court with a fair opportunity to rule on the merits; or (2) by showing that no state remedies remain available. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3547, 77 L.Ed.2d 1395 (1983).

The state concedes that Kellotat has exhausted his remedies for the alleged trial errors by raising these claims on direct appeal and then petitioning the Oregon Supreme Court for review. The sole issue here is whether Kellotat has exhausted state remedies for his claim of denial of appellate counsel. Kellotat argues that he has done so under either of the above means. His contentions present difficult questions of Oregon law and of the federal policies underlying the exhaustion requirement.

I. Review by the Oregon Supreme Court

Kellotat petitioned the Oregon Supreme Court for interlocutory review of the appellate The parties dispute whether Kellotat's claim was properly presented to the state supreme court by interlocutory appeal. We need not decide this state law question, however, for we hold that even a regular petition for review to the Oregon Supreme Court does not satisfy the exhaustion requirement for this type of claim. We reach this decision because of the nature and scope of Oregon appellate and collateral remedies.

court's refusal to appoint substitute counsel. This interlocutory petition, he contends, provided the Oregon Supreme Court with a "fair opportunity" to rule on the merits, and so satisfied the exhaustion requirement.

Oregon provides two distinct avenues for review of alleged errors, including constitutional violations. Such alternative procedures are perfectly acceptable; "a state may require that one procedure be used to the exclusion of another so long as the right of review is not foreclosed or unduly limited." Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976). In Oregon, most trial errors must be raised by direct appeal to the Oregon Court of Appeals. Lerch v. Cupp, 9 Or.App. 508, 497 P.2d 379, rev. denied (1972); see State v. Montgomery, 294 Or. 417, 657 P.2d 668 (1983). Examples offered by the State of such trial errors that are appropriately raised on appeal are: admission of an involuntary confession; failure to suppress evidence obtained in violation of the fourth amendment; failure to provide appointed counsel at trial; double jeopardy; selective prosecution; and prejudicial conduct by the prosecutor or judge during jury selection or trial. All of these matters are subject to review as of right in the Court of Appeals of Oregon. A defendant who is unsuccessful there must then petition for discretionary review by the Oregon Supreme Court in order to exhaust the remedy of direct appeal and open the way to federal court. Batchelor v. Cupp, 693 F.2d 859 (9th Cir.1982).

For violations of a defendant's rights that occur after trial, or that require a further evidentiary hearing for their determination, Oregon provides a statutory remedy in its trial courts by way of the Oregon Post-Conviction Hearing Act, Or.Rev.Stat. Secs. 138.510 to 138.680 (1981). Examples offered by the State of claims properly asserted in post-conviction proceedings include: ineffectiveness of trial counsel; ineffectiveness of appellate counsel; failure to provide appellate counsel; and failure to provide a free transcript on appeal.

We accept the State's description of Oregon's direct and collateral remedies as an accurate if not necessarily comprehensive characterization of Oregon law on the subject. We also agree that Kellotat's claim that he was improperly denied appointed counsel on appeal is an issue appropriately determined upon post-conviction review rather than upon direct appeal. This point is significant because grounds for relief that reasonably could have been raised on direct appeal may not be asserted in the state's post-conviction proceedings, absent special justification. ¹ Or.Rev.Stat. Sec. 138.550(2); Lerch v. Cupp, supra. Kellotat will not run afoul of that rule in seeking state post-conviction relief, and the state's post-conviction remedy accordingly remains unexhausted.

We also conclude that Kellotat's unsuccessful petition for interlocutory review by the Oregon Supreme Court does not satisfy the exhaustion requirement. It is true that the federal exhaustion requirement is normally satisfied if a state supreme court is presented with a fair opportunity to rule on the merits of a claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.1981) (per curiam), cert. denied, 455 U.S. 1023, 102 S.Ct. 1722, 72 L.Ed.2d 142 (1982); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir.1979). And we usually presume We decided a similar issue in Sweet v. Cupp, 640 F.2d 233 (9th Cir.1981). There the petitioner (Henderson) had ignored Oregon's statutory post-conviction remedies in favor of addressing a petition for habeas corpus directly to the Oregon Supreme Court under its discretionary original jurisdiction. The Oregon Post-Conviction Hearing Act was designed to replace the old writ of habeas corpus, and the Oregon Supreme Court had indicated that it would "rarely" exercise its jurisdiction in cases covered by the new statute. Id. at 238. We concluded:

                that when a state court denies a petition without comment, it ruled on the merits.   Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976).  Here, however, we are faced with a procedure invoked by Kellotat that falls out of the normal pattern.  Kellotat's petition raised an issue not derived from the trial record and not normally reviewable on appeal.  His claim of error had not been reviewed by any other Oregon court.  He raised his issue by petition to a Supreme Court that exercises its discretionary jurisdiction only to resolve conflicts in Oregon precedent or to decide questions of public import.   See 1000 Friends of Oregon v. Board of County Commissioners, 284 Or. 41, 584 P.2d 1371, 1372-73 (1978).  That Court has made clear that its denials of review are not to be viewed as approval of a decision on the merits.  Id.  It is true that the discretionary jurisdiction of the Oregon Supreme Court and the nature of its exercise are not sufficient to justify a defendant's by-passing that Court in the

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