Michael Reese was convicted in Oregon state court of kidnapping and attempted sodomy. After pursuing direct review, he sought state postconviction relief with appointed counsel. When the lower state courts denied relief, he petitioned the Oregon Supreme Court for discretionary review.
Reese's petition alleged ineffective assistance by both trial and appellate counsel. It expressly invoked federal constitutional provisions in discussing trial counsel, but did not identify any federal basis for the separate ineffective-assistance-of-appellate-counsel claim. The Oregon Supreme Court denied review.
Reese then sought federal habeas relief, asserting that appellate counsel had been constitutionally ineffective. The District Court held that he had not exhausted that federal claim because he had not fairly presented its federal nature to the Oregon appellate courts. A divided Ninth Circuit reversed, reasoning that the Oregon Supreme Court had the opportunity to inspect the lower court decision, which would have revealed the federal character of the claim. The Supreme Court reversed the Ninth Circuit.
Issue #1
Whether a state prisoner fairly presents a federal claim to a state court when the federal character of the claim appears only in a lower-court opinion that the reviewing court could read, rather than in the petition or brief before that court.
Holding
No. Ordinarily, a prisoner does not fairly present a federal claim if the reviewing state court would have to look beyond a petition, brief, or similar filing that itself fails to alert the court to the federal claim.
Reasoning
The exhaustion requirement in 28 U.S.C. § 2254(b)(1) is designed to give state courts the first opportunity to correct alleged violations of federal rights. To provide that opportunity, a prisoner must fairly present the federal nature of the claim in every appropriate state court, including a state supreme court that exercises discretionary review.
The Ninth Circuit treated the Oregon Supreme Court's ability to read the lower court's opinion as sufficient. But an opportunity to read that opinion is not the same as a requirement to do so. Treating a claim as fairly presented whenever its federal basis can be found in lower-court materials would effectively require state appellate judges to search those materials or risk losing the State's opportunity to address a federal issue first.
That rule would interfere with ordinary appellate practice, especially in courts that decide whether to grant discretionary review. Such courts may properly decide whether review is warranted from the petition itself, based on the importance and nature of the question rather than a full examination of the lower court's analysis.
The proposed rule would also impose substantial burdens on state appellate courts with heavy caseloads by requiring judges to review lower-court opinions or briefs in every case. A prisoner, by contrast, can readily signal a federal claim by citing the federal constitutional provision, invoking a federal case, or simply labeling the claim federal.
Requiring the federal basis to appear in the petition or brief better serves the comity interests underlying exhaustion. It ensures that state courts receive clear notice of the federal question without restructuring their ordinary review practices.
Issue #2
Whether Reese's petition for discretionary review itself fairly presented his ineffective-assistance-of-appellate-counsel claim as a federal claim.
Holding
No. Reese's petition did not adequately alert the Oregon Supreme Court that his appellate-counsel claim rested on federal law.
Reasoning
Reese's petition did not expressly state that the appellate ineffective-assistance claim was federal. Although the petition referred to federal constitutional provisions in connection with other claims concerning trial counsel, it did not make a comparable federal reference for the distinct appellate-counsel claim.
The petition also supplied no citation to a federal case that would have identified the claim's federal foundation, and it did not provide factual allegations supporting the appellate-counsel claim. Those omissions made the federal character of the claim insufficiently apparent from the petition itself.
Reese argued that Oregon treats the phrase "ineffective assistance" as a term reserved for federal claims, while calling comparable state claims "inadequate assistance." The Court found no adequate showing that Oregon law used the terms that way. Oregon decisions used "ineffective assistance" in connection with state constitutional claims, and Reese's own petition used both phrases for what appeared to be the same claim.
Issue #3
Whether the Court should consider Reese's argument that Oregon's state and federal standards for ineffective assistance of appellate counsel are identical, so that presenting the state claim necessarily presented the federal claim.
Holding
No. The Court deemed the argument waived because Reese did not properly raise it in the Ninth Circuit or in his response opposing certiorari.
Reasoning
Reese first made the identical-standards argument in his merits brief before the Supreme Court. The Ninth Circuit had not addressed it, and the Court's review of the appellate briefing indicated that Reese had not sought consideration of it there.
Under Supreme Court Rule 15.2, a nonjurisdictional argument omitted from a respondent's brief opposing certiorari may be treated as waived. The Court exercised that discretion because the argument was complex, had broad implications, and would benefit from prior consideration by the lower courts.
The Court therefore expressed no view on whether a state-law claim can fairly present a corresponding federal claim when the governing state and federal standards are identical.