William B. Greene v. John Lambert

O’SCANNLAIN, Circuit Judge,

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 considered” as of right, but reviewed only at the state court’s discretion. Cas tille v. Peoples, 489 U.S. 346, 351 , 109 S.Ct. 1056 , 103 L.Ed.2d 380 (1989). Raising a claim in that manner does not satisfy the exhaustion requirement unless the state court “actually pass[es]” upon the claim.” Id.

Thus, the majority and I frame our analyses largely the same way. I note, however, that the majority’s invocation of Harris v. Superior Court, 500 F.2d 1124 (9th Cir.1974) (en banc), may be misplaced. Like Hunter v. Aispuro, 982 F.2d 344 (9th Cir.1992), which the majority also cites, Harris turned on the practices and procedures by which the California appellate courts considered state habeas corpus petitions. I do not think that Harris creates a presumption in favor of finding a claim exhausted, for two reasons: First, the Harris court considered the exhaustion requirement in the context of California’s system of postconviction relief, which permits prisoners to bring original habeas corpus petitions in the state Supreme Court, rather than require them first to file in a lower court and then to seek discretionary review of that court’s denial of relief. See Harris, 500 F.2d at 1127-28 & nn. 5-6. In that context, the Harrises’ original petitions to the California Supreme Court more closely resemble the appeal as of right considered in Smith v. Digmon, 434 U.S. 332, 333 , 98 S.Ct. 597 , 54 L.Ed.2d 582 (1978) (per curiam), and distinguished in Castille, 489 U.S. at 350-51 , 109 S.Ct. 1056 , than the more discre-tionarily decided motion for reconsideration that is at issue in this case. 2 Cf. Nino v. Galaza, 183 F.3d 1003 , 1006 & nn. 2-3 (9th Cir.1999) (treating three original ha-beas petitions to the three levels of the California court system as a single “pending” proceeding). Second, Harris relied specifically on the California Supreme Court’s practice of making its intentions explicit when denying original habeas petitions on procedural grounds, a procedure that justified our presumption that unexplained denials from that court rested on the merits. See Harris, 500 F.2d at 1128-29. Harris did not indicate that state courts must adopt such a clear-statement rule, only that state courts that do adopt such a “beneficial” practice, id. at 1128, may rely on this court to apply it faithfully. 3

Notwithstanding our differing readings of Harris, the majority and I agree that if *1095 the Washington Supreme Court declined to reach the claim presented in Greene’s motion for reconsideration, then that motion was inadequate to exhaust the claim. Although in that case Greene still could have brought his claim in an application for state postconviction relief, a “personal restraint petition” (PEP) to the Washington appellate courts, see Wash. R.App. P. 16.3.4; see also In re Gentry, 137 Wash.2d 378 , 972 P.2d 1250 , 1256 (1999) (en banc) (indicating that failure to raise a claim on direct review does not preclude raising it in a PRP), Greene filed no such petition, and he cannot now do so. See Wash. Rev.Code Ann. § 10.73.090(1) (West 1990) (imposing a one-year time limit on most petitions for postconviction relief). Thus, if the Washington Supreme Court did not address the merits of the constitutional claim in denying the motion for reconsideration, Greene’s claim is now procedurally defaulted. See, e.g., Shumway v. Payne, 223 F.3d 982, 988-89 (9th Cir.2000) (reaffirming that Washington’s one-year limitations period is an adequate and independent state ground that bars habeas review of an unexhausted claim, absent a showing of cause and prejudice or actual innocence).

II

I next turn to the dispositive question: whether the Washington Supreme Court considered the merits of Greene’s claim. Here I must part company with the majority.

As the court’s opinion recognizes, we certainly would have concluded that Greene’s claim was unexhausted had the Washington Supreme Court merely denied his motion for reconsideration without comment. Supra at 1087 & n. 2. The only evidence pointing to an even possibly contrary conclusion is the footnote that the state court added to its opinion at the same time it denied the motion. However, on my reading, the text of that footnote evinces little more consideration of the merits than would the denial of the motion standing alone.

For me, the starting point is the court’s explicit statement that it “d[id] not reach this issue.” Indeed, this pronouncement standing alone would likely be enough to satisfy even a clear-statement rule like the one that applies in the procedural default context. Where, as here, the bar is lower and the question is only whether the state court exercised its discretion to consider the claim at issue, the court’s own announcement that it chose not to exercise that discretion ought to be virtually dispos-itive.

Of course, the state court did add a few more words, specifically the subordinate clause “Since we decide this case on more narrow grounds.” And as the majority states, this verbiage did render the added footnote somewhat “cryptic.” Supra at 1087. However, I believe that the only reading of that footnote that gives full effect to the court’s own words leads directly to the conclusion that the court did not consider Greene’s claim on the merits.

The majority divines in the opening dependent clause’s language an anticipatory repudiation of the succeeding independent clause’s plain statement that the court was not addressing the constitutional issue. In the majority’s view, see id., the reference to “more narrow grounds” encapsulates the court’s decision on the merits of Greene’s claim: the state evidentiary rule is legitimate, so its application to keep the testimony out does not violate the Sixth Amendment. But if the state court reasoned as the majority thinks it did, it collapsed into one the separate inquiries into the state rules of evidence and the U.S. Constitution. I cannot see why a court that based its rejection of a constitutional claim on its reading of state law would then turn around and describe the state law as “more narrow grounds” that *1096 justify its decision not to reach the federal issue.

There is a more natural interpretation of the qualifying clause “Since we decide this case on more narrow grounds,” one that does not negate the independent clause it modifies. 4

I read the Washington Supreme Court’s amendment to indicate that the court did not feel free to consider the constitutional claim because the state law issue was the only issue pmperly before it. This is the only construction that gives effect to the entire text of the state court’s amendment — the word “Since”; the phrase “more narrow”; and, of course, the operative clause “we do not reach.” 5 And it makes eminent sense in light of the Washington Rules of Appellate Procedure, under which the Washington Supreme Court considers only issues raised in the petition for review, the answer, or the order granting review, see Wash. R.App. P. 13.7(b), or (in exceptional cases) in a supplemental brief filed before the decision, see Wash. R.App. P. 12.1(a), 13.7(d); Douglas v. Freeman, 117 Wash.2d 242 , 814 P.2d 1160, 1168 (1991) (en banc).

In at least one recent case, the Washington Court of Appeals took a similar course in a comparable situation. Rule 12.1(a)’s restrictions on the issues properly before an appellate court and Rule 12.4(c)’s strictures on the points appropriate to a motion for reconsideration apply equally to both Washington appellate courts, see Wash. R.App. P. 1.1(d), so the interpretation of those rules by the Court of Appeals is instructive. Just as in this case, in response to a motion for reconsideration that raised an argument not argued in the briefs, the court added a footnote to its published decision declining to reach the late-raised contentions. 1515-1519 Lakeview Boulevard Condo. Ass’n v. Apartment Sales Corp., 17 P.3d 639 , 640 (Wash.Ct.App.) (stating that “[bjecause the parties did not argue public policy in their briefs, we do not reach this issue,” and citing Rule 12.1(a)), modifying 102 Wash.App. 599 , 9 P.3d 879, 883 (2000). And unlike Greene, the civil litigant in Lake-view Boulevard lacked the guaranteed opportunity to present its claim on collateral review.

Thus, reading the Supreme Court’s added footnote in context — in light of the restrictions on presenting issues to that court and Greene’s complete failure to comply with them — leads me back to the same conclusion to which the text of the footnote pointed: that the Washington Supreme Court declined to consider Greene’s claim, for the entirely legitimate reason that Greene had presented it belatedly, in a pleading to which the State lacked the right to respond, 6 when he still had available the more appropriate option of filing a PRP. And the court’s decision not to reach *1097 the constitutional issue left that issue unexhausted' — notwithstanding the court’s addition of a few explanatory words. All the court did was to consider whether to consider the constitutional claim and decide that it “need not” do so (not that the claim was meritless); that degree of examination simply is not enough to satisfy the exhaustion requirement where an avenue of state court review (here, a PRP) remains open. See Castille, 489 U.S. at 351 , 109 S.Ct. 1056 (concluding that a claim remained unexhausted when it was raised only in a petition for allocatur, a certiorari-like form of discretionary review by the Pennsylvania Supreme Court, and that petition was denied). Although a court necessarily “ha[s] thought about[a] new federal claim” when it chooses not to reach it, supra at 1087, that thought does not focus and that choice does not rest squarely on the merits. Cf., e.g., Sup.Ct. R. 10; United States v. Carver, 260 U.S. 482, 490 , 43 S.Ct. 181 , 67 L.Ed. 361 (1923) (“The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.”).

A decision not to decide an issue, even when accompanied by a few explanatory sentences, does not mean that the court “actually passes” on that issue; it means instead that it “takes a pass.” And where, as here, the defendant retains the right to place his claim unambiguously before a state court simply by filing a petition for state postconviction relief, the exhaustion requirement demands that he do precisely that before coming to federal court. To hold otherwise is to “blue-pencil[ ] ... from the text of the statute” the requirement that the petitioner present his claim to the state courts by “any available procedure.” Castille, 489 U.S. at 351 , 109 S.Ct. 1056 ; 28 U.S.C. § 2254 (c).

Ill

Far from a mere formality, the exhaustion requirement represents Congress’s decision, rooted in respect for our federal system, that state judiciaries must be given the first opportunity to correct their own errors — even errors of federal law— and that federal habeas courts are to step in only if the state courts fail to do so. 7 In concluding that Greene complied with this requirement, the majority lowers the bar and undermines Congress’s policy judgment.

I respectfully dissent.

. Although Greene’s federal habeas petition presented his constitutional claim under three separate headings, see supra at 1085, his motion for reconsideration in the state court listed it under a single heading and with a single rationale. Thus, like the majority, I refer to Greene’s claim in the singular.

. A related distinction between that case and this one is that Harris's habeas petition was his last opportunity to exhaust his claims before his state's court of last resort, whereas Greene still had open the option of filing a PRP. Cf. Castille, 489 U.S. at 350-51 , 109 S.Ct. 1056 (noting that federal courts "infer an exception” to the plain language of 28 U.S.C. § 2254 (c), which "appears to preclude a finding of exhaustion if there exists any possibility of further state-court review,” when the state courts have "actually passed on the claim”).

. In the separate but closely related context of procedural default, the Supreme Court has cautioned us that this presumption is not absolute even when considering the California Supreme Court's denials of habeas petitions. Where the petitioner files in the lower courts, rather than proceeding straight to the California Supreme Court, and where the "last reasoned decision” before the petition reaches the state's high court "explicitly imposes a procedural default," the Supreme Court has stated that an unexplained denial from the California Supreme Court presumptively does not represent a decision on the merits that lifts that default. Ylst v. Nunnemaker, 501 U.S. 797, 803 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991), rev’g 904 F.2d 473 (9th Cir.1990).

. Cf. United States v. Emerson, 270 F.3d 203 , 233 n. 32 (5th Cir.2001) (discussing principles by which courts construe introductory clauses in relation to the independent clauses they modify and justify).

. The existence of "more narrow” state law grounds would also explain a decision not to reach a broader constitutional issue if upholding the federal claim would lead to the same result. E.g., Skagit Surveyors and Engineers, LLC v. Friends of Skagit County, 135 Wash.2d 542 , 958 P.2d 962, 964 (1998) (en banc) ("Because we decide this appeal on statutory grounds, we do not reach the constitutional issues.”). That is not the case here; state law led the Washington Supreme Court to reverse, and accepting Greene's constitutional argument would have required it to affirm (on other grounds).

. Wash. R.App. P. 12.4(d); see State v. Thomson, 123 Wash.2d 877 , 872 P.2d 1097, 1101 (1994) (en banc) ("This court will not consider a constitutional issue when it is not timely filed. As the defense counsel conceded at oral argument, he first raised the issue in a supplemental brief belatedly filed on January 3. The issue was not raised in the courts below or in prior briefs, and the State did not *1097 have an adequate opportunity to respond to the argument. Because the Defendant did not timely raise the state constitutional issue, we do not reach it.”). By contrast, the State has not only the opportunity but the obligation to respond to a PRP. Wash. R.App. P. 16.9.

. See, e.g., Duncan v. Walker, 533 U.S. 167 , 121 S.Ct. 2120, 2127-28 , 150 L.Ed.2d 251 (2001) (citing cases); Tillema v. Long, 253 F.3d 494, 501 (9th Cir.2001).