Sweet v. Cupp

• Decision Date: 19 February 1981
• Docket Number: Nos. 79-2693,80-3104,s. 79-2693
• Citation: 640 F.2d 233
• Parties: Earl L. SWEET, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee. James Arthur HENDERSON, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 233

640 F.2d 233

Earl L. SWEET, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary,

Respondent-Appellee.

James Arthur HENDERSON, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary,

Respondent-Appellee.

Nos. 79-2693, 80-3104.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1980.

Decided Feb. 19, 1981.

Gregory J. Christensen, Corvallis, Or., for petitioner-appellant.

Thomas H. Denny, Asst. Atty. Gen., Salem, Or., for respondent-appellee.

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

Before HUG and REINHARDT, Circuit Judges, and SMITH, ^* District Judge.

REINHARDT, Circuit Judge:

Earl L. Sweet and James A. Henderson, state prisoners, appeal from the district court's dismissal of their petitions for writs of habeas corpus. Each raises an equal protection challenge to his state conviction. The district court rejected their constitutional claims on the merits. We do not reach the merits. Rather, we affirm the judgments of the district court for the reason that Sweet and Henderson failed to exhaust their state remedies.

Proceedings Below

In 1976 Sweet was convicted of one count of rape in the first degree in the circuit court of Oregon. His conviction was affirmed by the state court of appeals. State v. Sweet, 30 Or.App. 45, 566 P.2d 199 (1977). In 1978 Henderson was convicted on one count of rape in the first degree in the circuit court of Oregon. He did not appeal. Neither Sweet nor Henderson raised the claim which is the subject of his federal habeas corpus petition in those state proceedings. Subsequently, however, Henderson petitioned the Oregon Supreme Court for a writ of habeas corpus, raising the equal protection issue for the first time. His petition was denied without comment in a letter order.

Sweet and Henderson then petitioned the federal district court for writs of habeas corpus. ¹ In their petitions, they alleged that they were denied equal protection of the law because the Oregon forcible rape statute under which they were convicted is gender-based. The statute defines rape as an offense perpetrated by a male against a female. Or.Rev.Stat. § 163.375(1)(a). ² The district court denied Sweet's petition on the merits, holding that the Oregon statute did not violate the equal protection clause of the United States Constitution. U.S.Const. Amend. XIV, § 1. On the basis of its decision in Sweet, the district court dismissed Henderson's petition sua sponte. The district court issued certificates of probable cause, vesting this Court with appellate jurisdiction. 28 U.S.C. § 2253.

I

Normally, a federal court will not entertain a state prisoner's petition for writ of habeas corpus unless the petitioner has exhausted available state judicial remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). If the claim which is the subject of the petition was not presented to the state courts on direct appeal, state collateral remedies must be exhausted. 28 U.S.C. § 2254(c); Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572 (1944).

The exhaustion requirement is a matter of comity, not of jurisdiction. Fay v. Noia, 372 U.S. 391, 418, 83 S.Ct. 822, 837, 9 L.Ed.2d 837 (1963); Ex parte Royall, 117 U.S. 241, 250-51, 6 S.Ct. 734, 739-50, 29 L.Ed. 868 (1866); Harris v. Superior Court, 500 F.2d 1124, 1126-27 (9th Cir. 1974) (en banc), cert. denied, 420 U.S. 973, 95 S.Ct. 1394, 43 L.Ed.2d 652 (1975). Its purpose is to afford the state courts, which have an equal responsibility with the federal courts to vindicate federal constitutional rights, the first opportunity to remedy a constitutional violation. Fay v. Noia, 372 U.S. at 418-19, 83 S.Ct. at 837-38. The Supreme Court stated in Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950), overruled on other grounds, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963):

As it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, the federal courts sought a means to avoid such collisions. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.

The doctrine of comity has since been codified. 28 U.S.C. § 2254(b). ³ Neither Sweet nor Henderson has satisfied its demands.

II

Sweet did not present his equal protection challenge to the Oregon forcible rape statute on direct appeal, nor did he pursue the post-conviction relief that is available to him under Or.Rev.Stat. §§ 138.510, 138.530(d). Consequently, Sweet has failed to exhaust his existing state remedies. ⁴

The district court relied on the principle that exhaustion is not required if resort to state remedies would be futile. A number of circuits have held that a petitioner may be excused from exhausting state remedies if the highest state court has recently addressed the issue raised in the petition and resolved it adversely to the petitioner, in the absence of intervening United States Supreme Court decisions on point or any other indication that the state court intends to depart from its prior decisions. E. g., Franklin v. Conway, 546 F.2d 579, 581 (4th Cir. 1976); Stubbs v. Smith, 533 F.2d 64, 68-69 (2d Cir. 1976); Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973); Lucas v. Michigan, 420 F.2d 259, 261 (6th Cir. 1970); Reed v. Beto, 343 F.2d 723, 725 (5th Cir. 1965), aff'd on other grounds sub nom. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). We adopt the futility doctrine because it promotes comity by requiring exhaustion where resort to state courts would serve a useful function but excusing compliance where the doctrine would only create an unnecessary impediment to the prompt determination of individuals' rights. However, we find the futility doctrine inapplicable to the petitions before us.

The district court accepted respondent's concession that State v. Elmore, 24 Or.App. 651, 546 P.2d 1117 (1976), a decision in which the Oregon Court of Appeals rejected an equal protection challenge to a gender-based statutory rape statute, relieved Sweet of the obligation to exhaust available state remedies. ⁵ We find Elmore insufficient to invoke the futility exception because the decision as to the constitutionality of the statute there involved was based on a test which has since been discarded by the United States Supreme Court. In Elmore, the state court applied the minimal scrutiny standard of review to the constitutional claim and, on that basis, concluded that the gender-based statutory rape provision was a reasonable classification. 546 P.2d at 1118. Minimal scrutiny requires only that a classification serve a legitimate governmental objective and that it be reasonably related to achievement of that objective. Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).

Elmore preceded the United States Supreme Court decision in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In Craig, the Supreme Court established the more stringent intermediate scrutiny standard of review required for weighing an equal protection challenge to a gender-based statute. The Court stated: "To withstand constitutional challenge, ... classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives." Id. at 197, 97 S.Ct. at 456. The Court has continued to apply the intermediate scrutiny standard of review to gender classifications. E. g., Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). ⁶

The interests of comity require us to afford the Oregon courts the initial opportunity to consider the state forcible rape statute ⁷ under the current standard for review of constitutional challenges to gender-based statutes. Franklin v. Conway, 546 F.2d 579, 581 (4th Cir. 1976).

For the foregoing reasons, we find none of the circumstances which justify an exception to the exhaustion requirement. Sweet's petition, therefore, should not now be considered by the federal courts.

III

We next consider the effect of Henderson's petition for a writ of habeas corpus to the Oregon Supreme Court. We find it insufficient to satisfy the exhaustion requirement. ⁸

A petition for post-conviction relief to a state court which is denied on procedural grounds does not exhaust the petitioner's state remedies. The petitioner can still use the appropriate procedure to afford the state courts the initial opportunity to address his state claim on the merits. Pitchess v. Davis, 421 U.S. 482, 488, 95 S.Ct. 1748, 1752, 44 L.Ed.2d 317 (1975); Harris v. Superior Court, 500 F.2d 1124, 1126 (9th Cir. 1974) (en banc), cert. denied, 420 U.S. 973, 95 S.Ct. 1394, 43 L.Ed.2d 652 (1975).

The effect of Henderson's petition was to ask the Oregon Supreme Court to exercise its discretionary original jurisdiction in habeas corpus proceedings. Or.Const. art. VII (amended) § 2. The Oregon Supreme Court rarely exercises its original jurisdiction in this regard. Price v. Zarbano, 265 Or. 126, 508 P.2d 182, 183 (1973), citing Ex parte Jerman, 57 Or. 387, 112 P. 416 (1910). In Jerman, the first case in which the Supreme Court of Oregon was invited to exercise its original habeas corpus jurisdiction, the court determined that it would decline jurisdiction if the petitioner has a plain, speedy, and adequate remedy in the courts below...