Amicus Curiae Brief — Baldwin v. Reese

/ Supreme Court, U.S

FILED

Oo

No. 02-964 i T ? M 2003

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

GEORGE H. BALDWIN,

Petitioner,

V.

MICHAEL REESE,

Respondent.

On Writ of Certiorari to the

United States Court.of Appeals for the Ninth Circuit

BRIEF OF THE STATES OF INDIANA, NEBRASKA,

TEXAS, OHIO, WEST VIRGINIA, ALABAMA, UTAH,

SOUTH DAKOTA, WYOMING, DELAWARE,

PENNSYLVANIA, NORTH DAKOTA, OKLAHOMA,

MONTANA, COLORADO, MAINE, WASHINGTON, |

CALIFORNIA, NEVADA and VERMONT

AS AMICI CURIAE IN SUPPORT OF PETITIONER

STEPHEN R. CARTER

Attorney General Of Indiana

*GARY DAMON SECREST

Chief Counsel and

Deputy Attorney General

Counsel of Record

Office of the Attorney General

Indiana Government Center South

Fifth Floor

302 West Washington Street

Indianapolis, IN 46204-2770

(317) 232-6315

*Counsel of Record for Amici Curiae

(Additional Counsel Listed on Inside Cover)

Baimar Legal Publishing Services, Falls Church, VA (703) 289-9000

LAWRENCE E. LONG

Attorney General of South Dakota

500 East Capitol Avenue

Pierre, SD 57501-5070

JIM PETRO

Attorney General of Ohio

30 East Broad Street, 17" Floor

Columbus, OH 43215

WILLIAM H. PRYOR, JR.

Attorney General of Alabama

State House

11 South Union Street

Montgomery, AL 36130

MATT McNAIR

Attorney General of Nebraska

State Capitol

Lincoln, NE 68509

MARK L. SHURTLEFF

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

W.A. DREW EDMONDSON

Attorney General of Oklahoma

2300 North Lincoln Blvd.

Suite 112

Oklahoma City, OK 73105-4894

G. STEVEN ROWE

Attorney General of Maine

State House Station 6

Augusta, ME 04333

MIKE McGRATH

Attorney General of Montana

215 N. Sanders, PO Box 201401

Helena, MT 59620-1401

WILLIAM SORRELL

Attorney General of Vermont

109 State Street

Montpelier, VT 05609-1001

BILL LOCKYER

Attorney General of California

1300 I Street, Suite 125

P.O. Box 94244-2550

Sacramento, CA 94244-2550

DARRELL V. MCGRAW, JR.

Attorney General of

West Virginia

State Capitol, Room 26-E

Charleston, WV 25305

M. JANE BRADY

Attorney General of Delaware

820 North French Street

Wilmington, DE 19801

PATRICK J. CRANK

Attorney General of Wyoming

123 State Capitol

Cheyenne, WY 82002

WAYNE STENEHJEM

Attorney General of

North Dakota

600 East Boulevard Avenue

Bismarck, ND 58505-0040

D. MICHAEL FISHER

Attorney General of

Pennsylvania

16" Floor, Strawberry Square

Harrisburg, PA 17120

GREG ABBOTT

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711-2548

CHRISTINE GREGOIRE

Attorney General of

Washington

1125 Washington Street SE

Olympia, WA 98504-0100

KEN SALAZAR

Attorney General of Colorado

1525 Sherman Street, 7” Floor

Denver, CO 80203

BRIAN SANDOVAL

Attorney General of Nevada

100 North Carson Street

Carson City, NV 89701-4717

i

QUESTION PRESENTED

By statute and the Court's case law, a state prisoner must

exhaust available state court remedies on direct appeal or

through collateral proceedings before a federal court may

consider granting habeas corpus relief. The Court has held

that exhaustion requires a state prisoner to fairly present his

claim to the state’s highest court and that fair presentment

requires the prisoner to have alerted the state court that the

claim is a federal one.

Does a state prisoner “alert” the State's highest court that

he is raising a federal claim when—in that court—he neither

cites a specific provision of the federal constitution nor cites

at least one authority that has decided the claim is federal in

nature?

**

TABLE OF CONTENTS

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Argument:

L Permitting federal claims to spring forth in

federal habeas proceedings without prior

express presentation to state courts

undermines state court procedural mules .................. 2

Il. Explicit facial denomination of federal

claims respects the independent and

important development of state

consttutional law and prevents the waste of

valuable and limited judicial resources of

the states sengueenmennnenenenameates 5

Ill. Without a requirement of express facial

presentment, state government attomeys

will be forced to comb the record and case

law for potential federal claims that may

exist in order to help protect the vitality of a

State Court's ultimate disposition 0.0... 8

Conclusion Il

ili

TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. Harless,

RE ——_————————— 5, 10

Attorney General v. Colleton,

387 Mass. 790, 444 N.E.2d 915 (1982)...........cccccceeeeeeeeeeeees 7

Baldwin v. Reagan,

FES PELA.S SEZ Cad. IDDD) .nccccccecececcscccesccccscescscesssees a 7

Brady v. State,

yp) © ) iT dG) ) 7

Castille v. Peoples,

0 Ue 3

City of Mesquite v. Aladdin's Castle, Inc.,

J ® | | 6

Coleman v. Thompson,

GBD UG. BOB CIDA) nccccecccccccccscsceccccesssecccsecssscssscesncsssscsscsess 3

Collins v. Day,

644 N.E.2d 72 (Ind. 1994)...............cccscrccorereecerereessenseeneres 6,7

Committee to Defend Reprod. Rights v. Myers,

29 Cal.3d 252, 625 P.2d 779 (1981 )........cccccccecceeeeereeneneeenees 7

Commonwealth v. Ludwig,

527 Pa. 472, 594 A.2d 281 (1991).........cccccceeeeeeeeeeeeeneennennees 8

Cooper v. Morin,

49 N.Y.2d. 69, 399 N.E.2d 1188 (1979) ........-:ccccceeeeeeeeneees 8

Daye v. Attorney General,

696 F.2d 186 (2d Cir. 1982) (en banc), cert. denied............ 5

Duncan v. Henry,

ee DS 3,4

eee =

iv

Epeldi v. Engelking,

94 Idaho 390, 488 P.2d 860 (1971) .........cccccccccccccceeeeeeeeeees 7

Ex parte Royall,

EES Mot ee ee a ee ee 3

Francis v. Henderson,

TAS Re eae aT DTT TT 2

Large v. Superior Court,

IO Rn a Lee 7

Mallory v. Smith,

LT ee eT 4

Michigan v. Long,

EE a 6

New State Ice Co. v. Liebmann,

Ee en 6

Pennzoil Co. v. Texaco, Inc.,

EL a Te NS CE 6

People v. Sporleder,

I a 7

Peterson v. Peterson,

278 Minn. 275, 153 N.W.2d 825 (1967) ..........cccccccccceeeeeees 7

Picard v. Connor,

Ie ee ee oe 3

Reed v. Ross,

FE TD 2

Richardson v. State,

ae ae 7

State v. Caraher,

293 Or. 741, 653 P.2d 942 (1982) .0..........ccccccceeeeesecsccceceeeees 6

State v. Jewett,

Te 7

State v. Kaluna,

520 P.2d 51 (Haw. 1974)

State v. Kennedy,

295 Or. 260, 666 P.2d 1316 (1983) ............cccccceesessesseeeeeeees S

State v. McGann,

124 N.H. 101, 467 A.2d 571 (1983).............cccccceeeseeeeseeeeeees S

State v. Schmid,

yy s

Washakie County Sch. Dist. Number One v. Herschler,

606 P.2d 310 (Wyo. 1980)............ccscssesseereeeseenenenseneencens Xs

Statutes

yy 5

Other Authorities

6 Wayne R. LaFave et al., Criminal Procedure § 28.5(a)

(2d ed.) (2003 Pocket Part) .........csssesesrsrerereesereessneesenees

David Schuman, A _ Failed Critique of State

Constitutionalism, 91 Mich. L. Rev. 274 (1992)..........:0+++

James W. Talbot, Rethinking Civil Liberties Under the

Washington State Constitution, 66 Wash. L. Rev. 1099

Robert F. Williams, /n the Glare of the Supreme Court,

72 Notre Dame L. Rev. 1015 (1997) ........ccccccssseseeeeeeeneeneens

Ronald K. L. Collins, State High Courts, State

Constitutions, and Individual Rights Litigation Since

1980: A Judicial Survey, 13 Hastings Const. L.Q. 599

William J. Brennan, State Constitutions and the

Protection of Individual Rights, 90 Harv. L. Rev. 489

l

INTERESTS OF THE AMICI

The Amici Curiae states devote considerable resources to

defending state court judgments in federal habeas corpus

actions. Most federal habeas petitions present questions of

exhaustion of state court remedies and procedural default for

failure to fairly present federal questions in state courts. 6

Wayne R. LaFave et al., Criminal Procedure § 28.5(a) (2d

ed.) (2003 Pocket Part) (citing a 1995 Department of Justice

study). This case presents the important question of what

quality of presentment is necessary to exhaust an issue in state

court. The resolution of this question will affect the Amici

States’ interests in the fair and efficient resolution of federal

habeas proceedings, the protection of state court judgments,

and the efficient and effective use of state government

resources.

SUMMARY OF THE ARGUMENT

1. Oregon's proposal properly respects state court

procedural rules that are designed to facilitate appellate

review. The Ninth Circuit's test violates the respect due to

State court procedures by ignoring the rules that bind state

appellate courts’ consideration of claims. Consequently,

federal habeas courts allow state prisoners to litigate federal

claims that were not properly before the state appellate courts.

Such a test flies in the face of the comity concerns long

respecied by the Court.

Il. Oregon's proposal accounts for the fact that many

claims have dual bases in both federal and state law. An

express facial presentment rule, such as Oregon suggests,

respects distinct state law claims that are analogous to, but

methodologically different from, federal claims. Many states

grant protections to defendants that are greater than, or

different from, similar federal protections. Those states

require defendants to differentiate federal claims from

analogous state law claims that defendants wish the state

court to resolve. Without an explicit, facial exhaustion test,

federal habeas courts increasingly fail to respect the

2

analogous state law grounds that state courts identify and

resolve.

Ill. An explicit facial presentation rule addresses the

substantial interest of the Amici states in conserving the

limited resources available to state government attorneys.

Without Oregon’s proposed test, state government appellate

attorneys are forced to comb the record to identify and

counter potential federal claims to help preserve state courts’

ultimate dispositions. If the Court adopts Oregon’s test, state

government attorneys who defend state court judgments in

federal habeas court will dedicate less of their time to

litigating exhaustion and fair presentment questions and

instead focus their valuable and limited resources on the

merits of claims. State prisoners and federal habeas courts

will similarly benefit from such a rule.

ARGUMENT

I. Permitting federal claims to spring forth in

federal habeas proceedings without prior express

presentation to state courts undermines state

court procedural rules.

Federal courts must respect the role that state court

procedural rules play in the criminal justice system. Those

rules facilitate review, not hinder it. Reed v. Ross, 468 U.S. 1,

10 (1984) (state court procedural rules facilitate the complex

criminal justice system and channel the resolution of claims in

a fair and efficient manner). So too should the rules governing

exhaustion and fair presentment in federal habeas cases. If

the exhaustion and fair presentment requirements did not

respect state court procedural rules, the federal habeas

apparatus would undermine the ability of state courts to

control their own proceedings. /d. at 11. “[{I]n some

circumstances considerations of comity and concerns for the

orderly administration of criminal justice require a federal

court to forgo the exercise of its habeas corpus power.” /d.

(quoting Francis v. Henderson, 425 U.S. 536, 539 (1976)).

Indeed, the Court has long recognized the valid role that state

3

court procedural rules play in fair presentment. Coleman v.

Thompson, 489 U.S. 346, 349-51 (1991) (failure to comply

with state court procedural rules results in procedural default

in federal habeas); Castille v. Peoples, 489 U.S. 346, 351

(1989) (exhaustion not satisfied by presenting a claim to a

State appellate court in a procedural context where the merits

cannot normally be considered); see also Duncan v. Henry,

513 U.S. 364, 366 (1995) (per curiam) (a state court cannot be

faulted by federal courts for constraining its analysis of a

claim to state law when no federal claim was raised).

The Ninth Circuit’s “fair opportunity” test, which allows

for exhaustion of state remedies where a federal basis for a

claim is not asserted to the state appellate courts so long as the

prisoner alleged sufficient facts to the appellate court and the

trial court addressed the federal issue below, fails to accord

the proper respect to state court procedures. The purpose of

exhaustion and fair presentment is to respect the state courts

and their judgments, not to facilitate easier access to federal

habeas review. Picard v. Connor, 404 U.S. 270, 275-76

(1971); Ex parte Royall, 117 U.S. 241, 251-52 (1886). “Fair”

presentment necessarily implies that prisoners have a duty to

comply with state court procedural rules so the state courts

can address the merits of the prisoners’ claims. Comity

places a similar burden on federal courts: state court

procedural rules must be respected. Coleman, 489 U.S. at

351. When federal courts disrespect those rules they cause

“significant harm” to the States. /d. at 349.

The “fair opportunity” test used by the Ninth Circuit

looks not at what the habeas petitioner actually argued to the

state courts, but rather focuses on whether a state court could

have fashioned a federal claim if they willed it. Such a policy

presents a “Catch-22” for state courts. Most, if not all, state

courts are limited to considering only those issues presented

by the parties. State courts are constrained by their state’s

law. That is exactly what the Oregon Court of Appeals did in

this case.

4

Yet if the Ninth Circuit’s “fair opportunity” test is

adopted by the Court, state court procedural rules will be

disrespected by federal habeas courts. State courts will be

forced to ignore their own facial presentation rules in the

interest of satisfying the expectations of federal habeas courts.

It would be irrelevant whether a prisoner specifically and

facially asserted federal claims in her state appellate briefs so

long as the prisoner gave the state appellate courts an

“opportunity” to address a federal claim addressed by the trial

court. State courts will be forced to choose between their own

procedural law and the will of the federal courts. A state

court will violate its own law should it sift the record for any

potential federal claims in an effort to ensure proper respect is

accorded to its judgment. But should a state court abide by its

duty to follow the law, federal courts will accord little respect

to the state court’s judgment. Either situation flies in the face

of the purpose of exhaustion and the principles of comity that

federal courts have traditionally accorded their state

counterparts.

Moreover, the Ninth Circuit’s rule is self-defeating.

There is no need for a full and fair presentment requirement if

the question becomes not what the prisoner actually presented

on appeal but rather what a state appellate court might have

decided to address but for its own procedural rules.

Exhaustion would become a mere formality—a “perfunctory

jaunt” through the state court system. Mallory v. Smith, 27

F.3d 991, 994 (4th Cir. 1994). The so-called “fair

opportunity” test accords no respect to state court procedural

rules and undermines the premise of exhaustion and fair

presentment altogether.

Oregon’s proposed explicit facial presentation test

respects the state courts’ responsibility to follow their

procedural rules consistently while balancing the interests of

the state prisoner and the federal courts. The Court has

previously suggested that fair presentment requires an explicit

assertion of a federal right in state court. See Duncan, 513

U.S. at 366 (“If a habeas petitioner wishes to claim that an

- ~e omar pe >

- ee ee

5

evidentiary ruling at a state court trial denied him the due

process of law guaranteed by the Fourteenth Amendment, he

must say so, not only in federal court, but in state court.”);

Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (“It is

not enough that all the facts necessary to support the federal

claim were before the state courts . . . or that a somewhat

similar state-law claim was made.”) (internal citations

omitted). But the majority of circuits employ tests that focus

on whether a state court reasonably could have viewed a

prisoner’s claim as having a federal law basis. See Petition

for Writ of Certiorari at 18-21 (surveying the seven circuits

who still employ “whole record review” and “substance of the

claim” tests post-Duncan).' Such a focus misses the point.

Oregon’s proposed test is entirely consistent with the comity

concerns of exhaustion because both properly place the

burden of clearly articulating a claim on the state prisoner and

not on the courts. The states’ legitimate and significant

interests in controlling their courts, ensuring constitutionally

fair proceedings, and receiving respect for their judgments are

accomplished best through Oregon’s approach.

II. Explicit facial denomination of federal claims

respects the independent and _ important

development of state constitutional law and

prevents the waste of valuable and limited

judicial resources of the states.

Eclipsed by the federal constitution for decades, state

constitutional law now occupies a vital place in our federal

scheme. This essential role of state constitutional law is

threatened unless explicit denomination of federal claims is

required by the fair presentment element of exhaustion under

28 U.S.C. § 2254(b)(1)(A).

1 , :

As explained in Oregon’s petition, the Ninth Circuit’s “fair

opportunity” test used in this case is a variety of the “whole record

review” test. The “substance of the claim” test uses the four

considerations explained in Daye v. Attorney General, 696 F.2d 186, 194

(2d Cir. 1982) (en banc).

6

The emergence of state constitutional rights doctrine

accelerated in the 1970's. William J. Brennan, State

Constitutions and the Protection of Individual Rights, 90

Harv. L. Rev. 489, 502 (1977). The number of state

constitutional rights doctrines that are distinct from their

federal counterparts continues to increase. David Schuman, A

Failed Critique of State Constitutionalism, 91 Mich. L. Rev.

274, 276 (1992). When a state court interprets a provision of

its state constitution, that court is free to expand the interests

created by the parallel federal provision and to adopt a

separate methodology for analyzing those claims. City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982).

State constitutional provisions that are textually distinct from

their federal analog may signal a different intent on the part of

the state framers, thereby necessitating an independent

interpretation. James W. Talbot, Rethinking Civil Liberties

Under the Washington State Constitution, 66 Wash. L. Rev.

1099, 1103 (1991). Even with virtually identical language, a

state may adopt an interpretation and mode of analysis

different from its federal counterpart. See, e.g., State v.

Kaluna, 520 P.2d 51, 58-59 (Haw. 1974) (holding that the

circumstances surrounding an arrest must justify searches

incident to arrest); Collins v. Day, 644 N.E.2d 72, 74-75 (Ind.

1994) (adopting a methodology for state privileges and

immunities claims that is distinct from the federal equal

protection standard).

Encouraging this growth is important, because states

constitute an important laboratory for constitutional law. New

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting); State v. Caraher, 293 Or. 741, 749,

653 P.2d 942, 951 n.13 (1982) (observing that the Bill of

Rights was based upon corresponding provisions of the first

state constitutions). The Court has supported the

development of state constitutional law in part by respecting a

state court’s disposition of issues on state constitutional law

grounds. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11-12

(1987); Michigan v. Long, 463 U.S. 1032, 1040-42 (1983).

7

States have also revitalized their constitutions by

adopting a principle of resolving cases on state constitutional

grounds exclusively and relying upon the federal constitution

only when the former proves insufficient to dispose of the

claim. See, e.g., Large v. Superior Court, 714 P.2d 399, 405

(Ariz. 1986). State courts often resolve claims exclusively on

state constitutional law grounds when both federal and state

constitutional issues are present. Ronald K. L. Collins, State

High Courts, State Constitutions, and Individual Rights

Litigation Since 1980: A Judicial Survey, 13 Hastings Const.

L.Q. 599 (1986) (surveying state supreme court decisions

from 1950 to 1980 and finding 311 such instances from forty-

five states); see also Robert F. Williams, Jn the Glare of the

Supreme Court, 72 Notre Dame L. Rev. 1015, 1017 (1997).

States have even refused to decide an issue and demanded

supplemental briefing on state constitutional law when the

parties limited themselves to federal constitutional grounds.

State v. Jewett, 146 Vt. 221, 222-30, 500 A.2d 233, 234-39

(1985). State constitutionalism allows the states to give

independent meaning to their state constitutional protections

and to interpret those provisions in unique ways that address

the historical concerns of those states.

Many state constitutional provisions are read more

expansively than their federal counterparts and are analyzed

using distinct methodologies. See, e.g., Committee to Defend

Reprod. Rights v. Myers, 29 Cal.3d 252, 257-62, 625 P.2d

779, 781-84 (1981) (privacy, due process, and equal

protection); People v. Sporleder, 666 P.2d 135, 139-42 (Col.

1983) (searches); State v. Kaluna, 520 P.2d 51, 58-59 (Haw.

1974) (searches); Epeldi v. Engelking, 94 Idaho 390, 393-96,

488 P.2d 860, 863-66 (1971) (separation of church and state);

Richardson v. State, 717 N.E.2d 32, 48-49 (Ind. 1999)

(double jeopardy); Baldwin v. Reagan, 715 N.E.2d 332, 337

(Ind. 1999) (searches); Collins v. Day, 644 N.E.2d 72, 74-75

(Ind. 1994) (equal protection); Brady v. State, 575 N.E.2d

981, 984-89 (Ind. 1991) (confrontation); Attorney General v.

Colleton, 387 Mass. 790, 795-801, 444 N.E.2d 915, 918-21

(1982) (self-incrimination); Peterson v. Peterson, 278 Minn.

8

275, 277-78, 153 N.W.2d 825, 827-28 (1967) (right to jury);

State v. McGann, 124 N.H. 101, 104, 467 A.2d 571, 573

(1983) (searches); State v. Schmid, 84 N.J. 535, 552-60, 423

A.2d 615, 624-28 (1980) (access to public forums); Cooper v.

Morin, 49 N.Y.2d. 69, 76-79, 399 N.E.2d 1188, 1192-94

(1979) (due process); State v. Kennedy, 295 Or. 260, 270-72,

666 P.2d 1316, 1323-24 (1983) (double jeopardy);

Commonwealth v. Ludwig, 527 Pa. 472, 474-79, 594 A.2d

281, 282-84 (1991) (confrontation); Washakie County Sch.

Dist. Number One v. Herschler, 606 P.2d 310, 319, 332-33

(Wyo. 1980) (equal protection in school funding). The

presence of distinct state rights combined with the preference

for deciding cases on state law grounds, emphasizes the need

for express facial presentment. If only a general claim is

made, many state courts will look to state constitutional law

exclusively. A general claim made in such 2 state has not

raised a federal claim.

A grant of habeas relief on a federal claim that was never

explicitly raised before a state’s appellate courts and formed

no part of the state appellate determinations threatens the state

courts’ legitimate interest in defining the scope of their review

when confronted with claims framed in general language.

The grant of habeas relief in such circumstances also

threatens the states’ compelling interest in interpreting their

own constitutions and in not having those decisions

essentially rendered impotent by a subsequent federal court.

Express, facial denomination of federal claims is necessary if

the distinct role of state constitutions is to be preserved.

Ill. Without a requirement of express facial

presentment, state government attorneys will be forced to

comb the record and case law for potential federal claims

that may exist in order to help protect the vitality of a

state court’s ultimate disposition.

Oregon correctly notes how its proposed test strikes a

proper balance between the interests of state prisoners, state

courts, and the federal courts, but the interests of state

government attorneys will also served by an express facial

9

presentment requirement. Such a requirement relieves state

appellate attorneys from expending significant resources

combing the record for any possible federal issues that,

although not actually raised in state court, must be addressed

in an attempt to ensure that federal courts will accord the state

court judgments the proper respect. Oregon's proposed

requirement would also reduce the substantial litigation that

occurs in federal habeas courts over the threshold issues of

exhaustion and procedural default. In contrast, the Nirth

Circuit's “fair opportunity” test places a tremendous and

unnecessary burden on the state government attorneys who

are entrusted with defending criminal convictions.

Oregon's proposed test does not place additional burdens

on an already overburdened corps of state court government

attorneys. State government attorneys’ interests in assuring

that federal courts properly respect state court decisions is at

least as great as that of the state courts. Those attorneys must

protect convictions through the several layers of appellate and

collateral review, including federal habeas corpus review.

“Whole record review” and “substance of the claim” tests

require state government appellate attorneys to search the

record for any possible federal claims that relate to claims

actually asserted in the state court briefs. In such circuits,

state government attorneys must look beyond the discrete

claim presented to the state court and must scour the record

for any related federal claims. These tests force state

government attorneys to address in state court all potential

federal bases for claims. State court judges are then presented

with arguments that are superfluous to the actual claim urged

by the defendant. State judicial systems are significantly

burdened by the consequences of an exhaustion rule that

purports to respect comity and state interests but fails to do so.

Oregon’s proposed test alleviates these consequences and

affords genuine respect to the resolution of the case as

presented by the parties.

Attorneys who defend state court convictions in federal

habeas proceedings expend valuable state and federal

10

resources litigating exhaustion and fair presentment issues.

As Justice Stevens has observed, “Few issues consume as

much of the scarce time of federal judges as the question

whether a state prisoner has adequately exhausted his state

remedies before filing a petition for a federal writ of habeas

corpus.” Anderson, 459 U.S. at 8 (Stevens, J., dissenting). So

too with state government attorneys. The tests employed by

the majority of circuits encourage more litigation than if no

exhaustion requirement existed. State prisoners assert every

claim that they see fit, regardless of whether they are federal

claims or were fairly presented to state courts. These tests

require additional litigation to determine whether the federal

courts will hear them in the first place.

An express facial presentment test as proposed by

Oregon will eliminate much of the inquiry. State prisoners,

state government attorneys, and federal courts alike will be

able to identify unexhausted claims with ease. Little is

served by federal courts going out of their way to identify

potential federal claims when the state prisoners did not seek

their vindication earlier, and much is gained by simplifying

federal habeas procedures. The Court should adopt Oregon's

proposed test for fair presentment.

11

CONCLUSION

The Amici states respect fully request the Court adopt

Oregon's proposed facial presentation test and reverse the

judgment of the Ninth Circuit.

STEPHEN R. CARTER

Attorney General of Indiana

*GARY DAMON SECREST

Chief Counsel and

Deputy Attorney General

Indiana Gov't Center South

Sth Floor

302 West Washington Street

Indianapolis IN 46204

Telephone: (317) 232-6315

* Counsel of Record for Amici Curiae