William B. Greene v. John Lambert

dissenting.

I respectfully dissent from the court’s determination that Greene’s claim is properly exhausted. I place more reliance than does the majority on the Washington Supreme Court’s explicit statement that it did not reach Greene’s claim, and I am simply not persuaded that the majority’s construction of the state court’s explanatory language justifies the contrary conclusion at which it arrives.

Because I conclude that Greene did not fairly present his federal claim to the Washington courts, I express no view on the merits of that claim.

I

I largely agree with the majority’s discussion of the legal standard by which we must determine whether Greene properly exhausted the federal claim in his habeas petition. 1 Specifically, I agree that “[o]ur decision hinges on what happened to [Greene’s] motion [for reconsideration],” and that “[i]f the Washington Supreme Court ... adjudicated the claim on the *1094 merits, then the claim may proceed” in federal court. Supra at 1087. The reason, as the majority recognizes, see id. at 1087 & n. 2, is that the constitutional claim was “presented for the first and only time in a procedural context in which its merits will not be…

In this unusual case, a state trial court forbade a defendant’s testimony about his own state of mind and forbade testimony from the victim — his therapist — about what she observed of his state of mind. The state trial court acted on the basis of its interpretation of state rules of evidence and its conclusion that the mental disease about which the defendant and the victim would testify — Dissociative Identity Disorder (DID), formerly referred to as Multiple Personality Disorder (MPD) — was a questionable diagnosis and, at all events, had no relevance to the defendant’s sanity or knowledge at the time of the crime. In the context of this subsequent federal ha-beas petition, we are called on to decide two questions: (1) whether the Washington Supreme Court’s response to a motion to reconsider its opinion was an adjudication on the merits of a newly raised Sixth Amendment claim, which would permit us to address it, 28 U.S.C. § 2254 (b), (c); and (2) if so, whether the Washington Supreme Court’s decision involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, 28 U.S.C. § 2254 (d)(1). We hold that (1)…

288 F.3d 1081 William B. GREENE, Petitioner-Appellee, v. John LAMBERT, Respondent-Appellant. No. 01-35595. United States Court of Appeals, Ninth Circuit. Submitted December 6, 2001. * Filed March 26, 2002. COPYRIGHT MATERIAL OMITTED Paul D. Weisser, Senior Counsel, Criminal Justice Division, Olympia, WA, for the respondent-appellant. William B. Greene, pro se, Walla Walla, WA, petitioner-appellee. Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding. Before O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges. OPINION GRABER, Circuit Judge. 1 In this unusual case, a state trial court forbade a defendant's testimony about his own state of mind and forbade testimony from the victim — his therapist — about what she observed of his state of mind. The state trial court acted on the basis of its interpretation of state rules of evidence and its conclusion that the mental disease about which the defendant and the victim would testify — Dissociative Identity Disorder (DID), formerly referred to as Multiple Personality Disorder (MPD) — was a questionable diagnosis and, at all events, had no…