Michael Reese v. George H. Baldwin

282 F.3d 1184 Michael REESE, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee. No. 01-35153. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 9, 2001. Filed March 12, 2002. COPYRIGHT MATERIAL OMITTED 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. GOULD, Circuit Judge. OVERVIEW 1 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…

Opinion by Judge GOULD; Dissent by Judge T.G. NELSON.

OVERVIEW

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.

PROCEDURAL HISTORY

I. Conviction and Direct Appeals

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…

dissenting.

I must respectfully dissent. I would affirm the district court on the ground that Reese procedurally defaulted his claim for ineffective assistance of appellate counsel by failing fairly to present it to the Oregon Supreme Court.

“Judges are not like pigs, hunting for truffles buried in briefs.” 1 At least federal appellate judges are not, according to our precedent. 2 Yet the majority would hold state supreme court justices to a different standard — requiring them to root through the record for rare truffles of legal support that may complete an incompletely raised claim in one of the thousands of petitions they must decide whether to grant every year. And if they choose not to engage in this porcine behavior, they have, according the majority, chosen not to “take the op *1195 portunity” presented to them by a petitioner to review that petitioner’s claim. The majority so holds despite clear and binding precedent regarding what constitutes fair presentation and despite clear Oregon procedural rales.

In order fairly to present a federal claim to state courts, a petitioner must “include reference to a specific federal constitutional guarantee, as well as a statement…