Peterson v. Lampert

• Decision Date: 14 February 2003
• Docket Number: No. 00-35897.,00-35897.
• Citation: 319 F.3d 1153
• Parties: Eric Allen PETERSON, Petitioner-Appellant, v. Robert LAMPERT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1153

319 F.3d 1153

Eric Allen PETERSON, Petitioner-Appellant, v. Robert LAMPERT, Respondent-Appellee.

No. 00-35897.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 19, 2002.

Filed February 14, 2003.

Marc Sussman, Portland, OR, for the appellant.

Janet A. Metcalf, Office of the Attorney General, Salem, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. CV-98-01388-GMK.

Before: SCHROEDER, Chief Judge, KOZINSKI, TROTT, KLEINFELD, TASHIMA, THOMAS, McKEOWN, WARDLAW, W. FLETCHER, GOULD and RAWLINSON, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Eric Allen Peterson appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition based on his failure properly to exhaust in the Oregon state courts his ineffective assistance of counsel claim under the Sixth and Fourteenth Amendments to the United States Constitution. We hold that Peterson did not fairly present his federal claim to the Oregon Supreme Court because, on the face of his petition for review in that court, he expressly limited his claim to Oregon constitutional law. We therefore affirm.

I

In 1992, Peterson pled guilty in Oregon state court to one count of sodomy and one count of sex abuse. The Oregon Circuit Court sentenced him to 182 months on the sodomy count and 18 months on the sex abuse count, to be served consecutively. Peterson appealed his conviction and sentence to the Oregon Court of Appeals, which affirmed without opinion in 1994.

Peterson then petitioned for post-conviction relief in the Oregon Circuit Court claiming denial of his right to counsel under the federal and state constitutions, as well as denial of due process, equal protection of the laws, and a fair hearing under federal and state law. The circuit court denied Peterson's petition without opinion, and Peterson appealed to the Oregon Court of Appeals. In his brief in the court of appeals, Peterson claimed that he was denied his right to counsel under Article I, Section 11, of the Oregon Constitution and under the Sixth and Fourteenth Amendments to the United States Constitution. The court of appeals affirmed without opinion.

Peterson then sought discretionary review from the Oregon Supreme Court. In his petition for review to that court, Peterson specifically referred only to his right to counsel claim under the Oregon Constitution, and he cited two Oregon cases to support that claim. The relevant part of Peterson's petition reads, in its entirety:

Failure of trial defense counsel to specifically advise a defendant that a letter he proposes to submit to the Court as a part of the sentencing process contains admissions of facts constituting irrefutable evidence of aggravating factors justifying an upward departure sentence is not adequate assistance of counsel, within the meaning of Article 1, Section 11 of the Oregon Constitution, Chew v. State of Oregon, 121 Or.App. 474, 477, 855 P.2d 1120 (1993) and Krummacher v. Gierloff, 290 Or. 867, 627 P.2d 458 (1981).

(Emphasis added.) The term usually employed by Oregon courts in applying the right to counsel provision of the Oregon Constitution is "inadequate assistance of counsel." See, e.g., Gorham v. Thompson, 332 Or. 560, 34 P.3d 161, 163 (Or.2001); Krummacher v. Gierloff, 290 Or. 867, 627 P.2d 458, 461, 463 (1981). The term usually employed by state and federal courts in applying the analogous provision of the Federal Constitution is "ineffective assistance of counsel." In his counseled petition for review in the Oregon Supreme Court, Peterson used the term "[in]adequate" rather than "ineffective" assistance of counsel and cited only the Oregon Constitution; he did not cite to any provision of the Federal Constitution; and he did not refer to his brief in the Oregon Court of Appeals. The Oregon Supreme Court denied review.

Peterson next filed a petition for a writ of habeas corpus in federal district court under § 2254, claiming that he had received "[in]effective assistance of Counsel" in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The district court held that Peterson had not properly exhausted his federal ineffective assistance of counsel claim because he had presented his state claim, but not his federal claim, to the Oregon Supreme Court. It also held that Peterson had procedurally defaulted his federal claim because the time for filing a petition for review in the Oregon Supreme Court had long passed, and because he could not file a new original state court petition for post-conviction review. The district court accordingly dismissed Peterson's federal habeas petition with prejudice.

We review the district court's dismissal de novo. See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir.2002) (exhaustion); La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001) (procedural default).

II

A federal court may not grant habeas relief to a state prisoner unless he has properly exhausted his remedies in state court. See 28 U.S.C. § 2254(b); Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A petitioner must properly exhaust his state remedies by fairly presenting his federal claim in the state courts and thereby giving those courts an opportunity to act on his claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) ("Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims."); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) ("[E]xhaustion of state remedies requires that petitioners `fairly presen[t]' federal claims to the state courts ...." (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))). A petitioner must exhaust his state remedies by reaching the point where he has no state remedies available to him at the time he files his federal habeas petition. See Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In a state like Oregon, where review in the highest court is discretionary, a prisoner must still petition the highest court for review in order to exhaust his claim properly. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728. When a prisoner has deprived the state courts of a fair opportunity to pass on his claim and state procedural rules bar him from returning to state court, he has procedurally defaulted and is ineligible for federal habeas relief unless he can show "cause and prejudice." See id. at 848, 119 S.Ct. 1728.

Peterson makes three arguments, which we address in turn. First, he argues that he gave the Oregon Supreme Court a fair opportunity to act on his federal claim because under Oregon Rule of Appellate Procedure 9.20 that court would have consulted his court of appeals brief, in which the federal claim had been presented. Second, he argues that even if the Oregon Supreme Court would not have consulted that brief, his citation of two state cases analyzing ineffective assistance of counsel claims under the Federal Constitution was sufficient to alert the supreme court to the federal nature of his claim.

Third, he argues that the standards for determining right to counsel are "virtually identical" under the federal and state constitutions, and that his citation to the Oregon Constitution was therefore sufficient to alert the Oregon Supreme Court to the federal nature of his claim.

A. Fair Opportunity Under the Oregon Rules of Appellate Procedure

Peterson contends that he fairly presented his federal claim to the Oregon Supreme Court because Oregon Rule of Appellate Procedure 9.20 allows the Oregon Supreme Court to decide all issues properly presented to the court of appeals, whether or not the petition for review claimed that those issues were erroneously decided by that court. Rule 9.20 provides, in relevant part:

(2) If the Supreme Court allows a petition for review, the court may limit the questions on review. If review is not so limited, the questions before the Supreme Court include all questions properly before the Court of Appeals that the petition or response claims were erroneously decided by that court. The Supreme Court's opinion need not address each such question. The court may consider other issues that were before the Court of Appeals.

. . . .

(4) The parties' briefs in the Court of Appeals will be considered as the main briefs in the Supreme Court, supplemented by the petition for review and any response, brief on the merits or additional memoranda that may be filed.

We agree with Peterson that the Oregon Supreme Court has the discretion under the last sentence of Rule 9.20(2) to consider any issue decided by the court of appeals, including issues not presented in the petition for review. The Oregon Supreme Court has repeatedly affirmed its authority to consider any issue properly presented to the court of appeals. See, e.g., Stupek v. Wyle Labs. Corp., 327 Or. 433, 963 P.2d 678, 680 (1998) ("[U]nder ORAP 9.20(2), this court may review an issue that properly was raised on appeal and preserved, but not presented on review...." (citing State v. Castrejon, 317 Or. 202, 856 P.2d 616, 622 (1993))); Macy v. Blatchford, 330 Or. 444, 8 P.3d 204, 211 n. 8 (2000) ("In their brief on the merits, the Macys raise a different question.... Although this court has discretion to consider that question, which was before the Court of Appeals, we decline to exercise that discretion in this case."); Gugler v. Baker County Educ. Serv. Dist., 305 Or. 563, 754 P.2d 900, 901 n. 3 (1988) ("Plaintiffs do not raise these issues in their petition. Accordingly, we decline to consider them."); Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404, 405 n. 2 (1988) ("Although we may address any issue raised to the Court of Appeals, we choose not to address any issue in this case not raised in the petition or the...