Reese v. Baldwin
| Decision Date | 12 March 2002 |
| Docket Number | No. 01-35153.,01-35153. |
| Citation | 282 F.3d 1184 |
| Parties | Michael REESE, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dennis N. Balske, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant.
Robert B. Rocklin, Assistant Attorney General, Salem, OR, for the respondent-appellee.
Appeal from the United States District Court for the District of Oregon, James A. Redden, District Judge, Presiding. D.C. No. CV-98-00851-ST.
Before: HUG, T.G. NELSON, and GOULD, Circuit Judges.
Opinion by Judge GOULD; Dissent by Judge T.G. NELSON.
Petitioner Michael Reese ("Reese") appeals the district court ruling that his claim of ineffective assistance of appellate counsel in his § 2254 habeas petition is procedurally defaulted because of lack of exhaustion. The issue is whether Reese adequately alerted the state courts to the federal nature of his claims. We reverse the district court, concluding that Reese fairly presented his federal claims to the state courts, and we remand for further proceedings on his habeas petition.
The story pertinent to this habeas appeal begins when Reese was convicted on two counts of kidnaping and one count of attempted sodomy in Oregon state court. The trial court sentenced Reese as a dangerous offender. This allowed the court to depart from the usual sentencing guidelines. The court issued a determinate sentence of thirty years on the kidnaping counts. That meant that Reese would have to serve the entire thirty years without eligibility for parole. The court also sentenced Reese to three years on the attempted sodomy count, a determinate sentence to be served consecutively to the one on the kidnaping counts. Facing a thirty-three year sentence with no possibility of parole, Reese thus far had not fared well.
The Oregon Court of Appeals affirmed the convictions. But it remanded for resentencing because Oregon law required the sentencing court to indicate what the presumptive sentence would have been had Reese not been sentenced as a dangerous offender, which the trial court hadn't done. Under Oregon law, Reese could have been eligible for parole after he served the presumptive term, and so this omission had potential impact on Reese's tenure as a convict.
On this first remand the court again sentenced Reese to thirty years on the kidnaping counts as a dangerous offender. And this time the court also specified the presumptive sentence that the court would have imposed if it had not found Reese to be a dangerous offender. However, as grist for the mill of further appeals, this presumptive sentence specified by the court was also a departure from the sentencing guidelines. Stated differently, the sentence that the court said it would have issued absent departure from the sentencing guidelines for a dangerous offender was itself also a departure from the sentencing guidelines. Again, Reese had not fared well.
But this use of a departure for the presumptive sentence was not permissible under Oregon law, and the Oregon Court of Appeals again remanded for resentencing. The appeals court noted that the correct presumptive sentence under the guidelines without departure should have been between 121 and 130 months. See State v. Reese, 128 Or.App. 323, 876 P.2d 317, 319 (1994).
On the third sentencing after the second remand, the Oregon sentencing court appointed different counsel to represent Reese. Reese then objected to the new attorney and proceeded pro se. This time, facing the pro se Reese alone, the trial court did not sentence Reese as a dangerous offender. Instead, the court sentenced Reese to 260 months on the kidnaping convictions, plus the three year consecutive term for attempted sodomy. The length of the kidnaping sentence was a departure from the guidelines, though not for being a dangerous offender. Yet another time, Reese had not fared well. The Court of Appeals on the second appeal had stated that Reese when sentenced as a dangerous offender could be eligible for parole after 11 years, the presumptive term. But on remand, in the third sentencing, the court abandoned dangerous offender status as the basis for departure, and departed on other grounds.
Reese appealed his sentence again for the third time and was appointed still another counsel. But Reese's appeal proceeded under an ill star. Reese's appellate counsel declined to champion Reese's position and filed a Balfour brief with the Oregon Court of Appeals suggesting that the appellate issues had no merit. The Balfour system is Oregon's version of the Anders briefing system announced in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), through which appointed counsel present claims they conclude are frivolous.1
The Oregon Court of Appeals on this third appeal affirmed Reese's sentence without written opinion. See State v. Reese, 134 Or.App. 629, 894 P.2d 1268 (1995). Reese did not seek review by the Oregon Supreme Court. Thus ends the saga of Reese's direct appeal.
As is typical in Oregon, however, that was not the end of the matter. Reese filed a pro se petition for state post conviction relief ("PCR"). As it turns out, the tale of Reese's PCR process is the part of the state court proceedings that is most pertinent for our purposes in this appeal. The PCR court appointed still another new counsel for Reese. Counsel filed an amended petition raising a claim of ineffective assistance of appellate counsel, citing explicitly to the Sixth and Fourteenth Amendments of the federal constitution as well as to the Oregon constitution.2
The PCR court denied the ineffective assistance of appellate counsel claim with a terse ruling, citing federal law authority. In its Memorandum of Opinion, beneath a heading "Adequate Appellate Counsel," the court simply wrote, 3 Reese again appealed, now in the PCR process.
Reese was appointed again still another counsel for the PCR appeal in the Oregon Court of Appeals. Reese's PCR appellate counsel filed a Balfour brief stating there were no meritorious claims, just as Reese's direct appeal counsel had done. For Part B of the Balfour brief, the section presenting the claims that counsel thought frivolous, counsel inexplicably attached Reese's pro se PCR petition rather than the amended petition that had been prepared by an attorney. As a result, the Balfour brief did not explicitly cite to federal authority for the ineffective assistance of appellate counsel claim, as the amended petition had done. The state filed a motion for summary affirmance, which Reese's attorney did not oppose. The Oregon Court of Appeals granted the motion, and summarily affirmed the PCR court's decision without a written opinion.4
Reese next filed a petition for review in the Oregon Supreme Court. This petition cited to the Sixth and Fourteenth Amendments of the federal constitution, but the citations appeared to support claims for ineffective assistance of trial counsel only. The sentence containing these citations stated, "Moreover, since Petitioner asserts he was coerced and threatened by counsel to waive his right to trial by jury, Petitioner believes his 5th, 6th and 14th amendment rights have been violated." Reese's claim alleging ineffective assistance of counsel on direct appeal was made summarily, along with many other claims. The petition contained no express citation to federal authority for the claim.5 The Oregon Supreme Court denied review.
With the past state court stage thus set, Reese filed in federal court a habeas petition and later an amended habeas petition alleging, among other claims, ineffective assistance of counsel on direct appeal. The case was referred to a federal magistrate judge, who in turn recommended finding that Reese fairly presented his claim of ineffective assistance of appellate counsel. The magistrate judge recommended granting relief for that claim and denying relief for Reese's other claims.6 The district court rejected the magistrate judge's recommendation, held that Reese did not fairly present this claim of ineffective appellate counsel to the Oregon Court of Appeals, and held that the claim was procedurally defaulted.7 The district court denied Reese's other claims, and rejected Reese's motion for reconsideration. Reese appeals the dismissal of his habeas petition.
We review only the district court's determination that Reese procedurally defaulted his ineffective assistance of appellate counsel claim.8
The district court's dismissal of a 28 U.S.C. § 2254 habeas claim on the ground of procedural default presents issues of law that we review de novo. See La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001).
A state prisoner must exhaust available state court remedies on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Exhaustion is required by statute. See 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement of § 2254, habeas petitioners must `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights.'" Lyons v. Crawford, 232 F.3d 666, 668 (2000), as modified by 247 F.3d 904 (9th Cir.2001) (quoting Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)).
The exhaustion requirement has long been rooted in our commitment to federalism, see Ex Parte Royall, 117 U.S. 241, 251-52, 6 S.Ct. 734, 29 L.Ed....
To continue reading
Request your trial
-
Phea v. Pfeiffer
...McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). "Unexhausted claims may be procedurally defaulted. See, e.g., Reese v. Baldwin, 282 F.3d 1184, 1190 (9th Cir.2002). A claim is procedurally defaulted 'if the petitioner failed to exhaust state remedies and the court to which the petition......
-
Beaty v. Stewart
...L.Ed.2d 865, (1995) (internal quotation marks omitted). Unexhausted claims may be procedurally defaulted. See, e.g., Reese v. Baldwin, 282 F.3d 1184, 1190 (9th Cir.2002). A claim is procedurally defaulted "if the petitioner failed to exhaust state remedies and the court to which the petitio......
-
Peterson v. Lampert
...the court of appeals and where it was clear "in context" that the petition for review referred to the appellate brief. In Reese v. Baldwin, 282 F.3d 1184 (9th Cir.2002), the petitioner had explicitly mentioned the federal Sixth and Fourteenth Amendments and had described the behavior of his......
-
Lee v. Lampert
...established by the Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See Reese v. Baldwin, 282 F.3d 1184, 1187 (9th Cir.2002), rev'd on other grounds, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). In State v. Balfour, 311 Or. 434, 814 P.2d 1069......