Baldwin, George v. Reese, Michael (03/02/2004)

Questions presented: For the purposes of exhausting all available state court remedies to seek federal habeas corpus relief, 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 on a federal basis?

BY: KELLY HESSEDAL, MEDILL NEWS SERVICE

In 1991, Michael Reese was convicted in Oregon state court of kidnapping and attempted sodomy. The trial court sentenced Reese to 30 years in prison for the kidnapping convictions and three years for the attempted sodomy conviction. Because he was being sentenced under Oregon law as a dangerous offender, he was ordered to serve the entire 33 years without possibility of parole.

On appeal, the Oregon Court of Appeals affirmed the convictions but ordered Reese to be re-sentenced because the trial court left out a procedural step in the sentencing process. In March 1993, the trial court re-sentenced Reese to the same sentence of 33 years. Again he appealed and again the court of appeals remanded for re-sentencing because the trial court had not complied with the same step that it had omitted in the first sentencing.

In September 1994, as Reese was to be sentenced a third time, he was appointed a new lawyer. He objected to his new attorney and instead represented himself before the court. In dropping his status as a dangerous offender, the court sentenced Reese to more than 24 years in prison.

Reese appealed again, and his appellate counsel couldnt find any issues in Reeses case worthy of appealing, so he filed a "Balfour" brief with the Oregon Court of Appeals. An appointed attorney files a Balfour brief when he or she cant find any non-frivolous issues to appeal. The attorney lays out the facts of the case in the first part of the brief and the client lays out the issues he or she wants to appeal in the second part. The attorney is only responsible for formatting the clients arguments, not for the substance of them.

The Court of Appeals affirmed Reese's sentence without written opinion. Reese did not appeal to the Oregon Supreme Court.

In July 1998, Reese filed a pro se petition (a petition filed by himself on his behalf) for state post-conviction relief and the court appointed Reese a new attorney. His attorney filed an amended petition and claimed Reeses appellate counsel was ineffective, citing the state constitution and the 6th and 14th amendments of the federal constitution. The court denied the ineffective assistance claim, stating, "Appellate counsel need not present every colorable issue."

Reese appealed and again was appointed a new attorney. His new attorney filed a Balfour brief similar to the one previously filed by Reese's direct appeal counsel. However, his new attorney made the mistake of attaching Reese's pro se petition, rather than the amended petition prepared by an attorney. Therefore, the brief did not specifically cite the federal and state constitutions when claiming Reese's appellate counsel was ineffective, as the amended petition had done. The court of appeals again affirmed without a written opinion.

Reese finally took matters to the Oregon Supreme Court. His petition cited the constitutional ineffective assistance of counsel claims; yet, they appeared to support claims for ineffective assistance of only his trial attorney. The petition did not cite constitutional amendments supporting his claim that his appellate counsel was ineffective.

The Oregon Supreme Court denied review.

Because Reese had been through the state court process, he took his case to federal court and filed a habeas petition. A habeas petition argues that the process taken to incarcerate a person was illegal. Reese claimed he received ineffective assistance by his appellate attorney on direct appeal. The state argued that Reese had not cited federal authority for the claim, and consequently, he did not exhaust his state remedies before taking his case to federal court.

A federal magistrate judge recommended that Reese be granted relief for his claim of ineffective counsel, but denied relief on his other claims. The district court rejected the recommendation, ruled that Reese did not adequately present the claim of ineffective appellate counsel to the Oregon Court of Appeals and held that the claim was procedurally defaulted under the 9th Circuit Court of Appeals 2000 opinion in Lyons v. Crawford.

Lyons held that a habeas corpus petitioner exhausts state remedies only if he raises specific federal claims in state proceedings and either references provisions of the federal constitution, statutes, or federal case law. This standard also applies to pro se litigants.

On March 12, 2002, a divided 9th Circuit panel sided with Reese, ruling that the Oregon Court of Appeals was alerted to the fact that Reese was asserting claims under the U.S. Constitution. It also ruled that Reese fairly presented his federal claim about ineffective appellate counsel to the Oregon Supreme Court, thereby exhausting his state remedies.

In dissent, Judge Thomas Nelson criticized the majority for requiring state supreme court justices to "root through the record for rare truffles of legal support" when there are thousands of such petitions before that court each year.

The state appealed to the U.S. Supreme Court on March 12, 2002.

On May 27, 2003, the U.S. Supreme Court accepted review in the case and allowed Reese to proceed with the case without cost.

"One issue is the resources that go into arguing about exhaustion in the federal habeas proceedings," said Mary Williams, solicitor general of Oregon.

"A lot of time and energy is spent arguing about whether claims were properly exhausted in the state courts. A decision from the U.S. Supreme Court setting a bright line test that requires the federal habeas petitioner to clearly raise claims to the state's highest appellate court would eliminate much of the argument about whether an issue was properly exhausted," she said.

Dennis Balske, Reeses attorney, fears that if the court sides with the state, it will be increasingly difficult for prisoners to successfully file habeas petitions.

"If they side with the state, its going to be another nail in the habeas corpus coffin. [These prisoners] are not Rhodes scholars. Even lawyers cant topple state remedies," Balske said.

He added, "Prison inmates will lose out. To expect them to know how to [file for habeas corpus] themselves is preposterous. Its an effort to cut out the great writ of habeas corpus."

On March 2, 2004, the Court reversed, holding 8-1 against Reese that state prisoners ordinarily don't "fairly present" a federal claim to a state court if that court must read beyond a petition, a brief, or similar papers to find material that will alert it to the presence of such a claim.

Justice Stephen Breyer wrote the Court's opinion. Justice John Paul Stevens was the lone dissenter.