Farmer v. Baldwin ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE EDWARD FARMER,  No. 06-35635
Petitioner-Appellant, D.C. No.
v. CV-02-01565-ALA
GEORGE H. BALDWIN,
Respondent-Appellee.  ORDER
CERTIFYING A
QUESTION TO
THE SUPREME
COURT OF
 OREGON
Filed August 15, 2007
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
ORDER
George Edward Farmer (“Farmer”) appeals the district
court’s dismissal of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254, arising from his conviction in Ore-
gon state court on one count of murder. The district court did
not reach the merits of Farmer’s claims, ruling instead that he
failed to exhaust available state remedies, and that his claims
are now procedurally defaulted.
Farmer contends on appeal that the district court erred in so
concluding, arguing that because he complied with Oregon
procedural rules to present his claims to the state courts, those
claims are now exhausted and warrant federal habeas review.
Because this contention raises an important and unresolved
issue of Oregon law, we respectfully CERTIFY A QUES-
9871
9872 FARMER v. BALDWIN
TION for review by the Supreme Court of Oregon. We offer
the following statement of relevant facts and explanation of
the “nature of the controversy in which the question[ ] arose.”
OR. REV. STAT. § 28.210(2) (2005).
BACKGROUND
An Oregon state court jury convicted Farmer of murder and
the trial court sentenced him to twenty-five years to life
imprisonment. Farmer appealed his sentence only, and the
Oregon Supreme Court ultimately affirmed the trial court’s
judgment. State v. Farmer, 856 P.2d 623 (Or. 1993). Farmer
thereafter sought state post-conviction relief, alleging in his
post-conviction petition to the trial court that he had been
denied adequate assistance of both trial and appellate counsel,
in violation of the Sixth and Fourteenth Amendments. He also
claimed that both his conviction and sentence violated his fed-
eral guarantees of due process and equal protection, and that
he had been searched in violation of the Fourth Amendment.
On appeal from the trial court’s denial of Farmer’s post-
conviction petition, his appellate attorney in October 2001
attempted to submit a “no-merits” brief according to the pro-
cedure outlined in State v. Balfour, 814 P.2d 1069 (Or. 1991).
Balfour calls for a two-part brief when an attorney represent-
ing an indigent criminal defendant cannot identify a non-
frivolous claim to raise on appeal. Balfour, 814 P.2d at 1079-
80. Section A, prepared and signed by the attorney, must con-
tain a statement of the case sufficient to apprise the court of
the appeal’s jurisdictional basis, but it may not contain any
assignment of error or argument. Id. at 1080. If the client
wishes to raise an issue or issues the attorney deems frivolous,
the brief must contain Section B, which “shall raise any claim
of error requested by the client . . . in the manner that the cli-
ent wishes to raise it,” and is signed by the client alone. Id.
Farmer’s appellate attorney drafted Section A of the Balfour
brief, in which he stated that he had conferred with Farmer
and Farmer’s post-conviction trial counsel in an effort to iden-
FARMER v. BALDWIN 9873
tify any non-frivolous claim to raise on appeal. Section A did
not contain any assignment of error, but did state that Farmer
“has filed a Petition for Post-Conviction Relief and makes all
the allegations set forth therein.” This portion of the brief also
stated that Farmer was offered an opportunity to draft and
submit Section B with the assistance of counsel, but that he
instead chose “to attach a copy of his post conviction petition,
in the hopes of at least preserving all the issues presented
therein.” Farmer’s post-conviction petition was appended to
Section A of the brief in original form, but without a heading
identifying it as “Section B” of the brief.
After the Oregon Court of Appeals affirmed without opin-
ion, Farmer filed a petition for review in the Oregon Supreme
Court in July 2002. On the petition’s opening page Farmer
stated that he intended to rely on the petition itself and the
briefs filed in the court of appeals. In the body of his petition
Farmer raised no claims and made no assignments of error,
but stated inter alia that: (1) the reasons justifying reversal of
the court of appeals “are set forth in the appellate brief”; and
(2) his position was “set forth in the . . . [B]alfour brief.” Far-
mer did not attach a copy of the Balfour brief to his petition
for review. The Oregon Supreme Court summarily denied
review. Farmer v. Baldwin, 54 P.3d 1041 (Or. 2002).
Farmer thereafter filed the instant habeas petition, in which
he again alleged that he had been deprived of his federal right
to effective trial and appellate assistance, that his federal guar-
antees of due process and equal protection had been violated,
and that he was searched in violation of the Fourth Amend-
ment. The district court concluded that because Farmer did
not “fairly present” his federal claims to the Oregon Supreme
Court, those claims were not exhausted and federal habeas
review was therefore precluded under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Further, rea-
soning that Farmer could no longer present his claims to the
Oregon Supreme Court because they were untimely under
Oregon’s procedural rules, the district court determined those
9874 FARMER v. BALDWIN
claims were procedurally defaulted for purposes of federal
habeas review. Because Farmer had shown neither the cause
nor prejudice necessary to cure this procedural default, the
district court dismissed his habeas petition. Farmer timely
appealed to this court.
DISCUSSION
As a general matter, no federal habeas relief is warranted
until a state prisoner has exhausted all available state reme-
dies. 28 U.S.C. § 2254(b)(1). This so-called “exhaustion
requirement” is intended to afford “the state courts a mean-
ingful opportunity to consider allegations of legal error”
before a federal habeas court may review a prisoner’s claims.
Vasquez v. Hillery, 474 U.S. 254, 257 (1986); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “To pro-
vide the State with the necessary ‘opportunity,’ the prisoner
must ‘fairly present’ his claim in each appropriate state court
(including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Dun-
can v. Henry, 513 U.S. 364, 365 (1995) (per curiam)).
Our central inquiry is whether Farmer satisfied this “fair
presentation” requirement in his petition for review to the
Oregon Supreme Court, thereby exhausting his available state
remedies, and authorizing him to seek federal habeas relief. In
particular, we inquire whether Farmer’s petition for review,
which refers directly and repeatedly to his Balfour brief, to
which his original post conviction petition was attached in
place of (although not labeled as) Section B, and which
attachment explicitly stated his federal claims, constitutes pre-
sentation of those claims to the Oregon Supreme Court under
Oregon’s rules or practice. This inquiry turns directly on the
construction and application of several Oregon Rules of
Appellate Procedure, as well as on the practice followed by
the Oregon Supreme Court, and presents questions of Oregon
law for which we have found no guidance in the case law
FARMER v. BALDWIN 9875
from either the Oregon Court of Appeals or the Oregon
Supreme Court.
I. Oregon Rule of Appellate Procedure 9.05
As an initial matter, we are mindful that Farmer’s petition
for review to the Oregon Supreme Court did not comply with
the state’s appellate rules generally governing such petitions.
The operative rule at the time Farmer sought review broadly
required all petitions to the Oregon Supreme Court to contain:
a concise statement of the legal question presented for review;
the rule of law the petitioner proposed to be established; a
concise statement of each reason asserted for reversal or mod-
ification of the Court of Appeals’ decision; a short statement
of facts; and a statement of specific reasons why the issues
presented had importance beyond the particular case and war-
ranted decision by the Supreme Court. Or. R. App. P. 9.05(3)
(2001). Farmer’s petition did not specifically contain any of
the required elements, but rather referred the Oregon Supreme
Court to his Balfour brief — including the petition attached
thereto in lieu of Section B — filed in the Court of Appeals
in an attempt to satisfy the applicable requirements. We have
no trouble concluding that the Oregon Supreme Court would
find Farmer’s petition lacking under a straightforward appli-
cation of Rule 9.05(3) (2001).1 However, we are also per-
suaded that the lower Balfour pleading standard, codified in
Oregon Rule of Appellate Procedure 5.90, applies to Farmer’s
petition. See Or. R. App. P. 9.05 cmt. (2001) (referring to
Rule 5.90(5) as the governing rule “regarding filing a petition
for review where a ‘Balfour’ brief was filed on behalf of the
appellant in the Court of Appeals”). We are simply unaware
of the extent to which the Oregon Supreme Court may be
flexible in applying that rule, particularly with respect to a
petitioner’s referring the Court to a statement of claims set
forth in a Balfour brief filed in the Court of Appeals.
1
The substance of former Rule 9.05(3) is contained in current Oregon
Rule of Appellate Procedure 9.05(4).
9876 FARMER v. BALDWIN
II. Balfour and Oregon Rule of Appellate Procedure
5.90
Grappling with the competing considerations presented
when an indigent criminal defendant wishes to appeal but his
appointed counsel does not identify any meritorious grounds
to raise, the Oregon Supreme Court in Balfour considered first
whether an attorney has an ethical duty to withdraw under
such circumstances. Balfour, 814 P.2d at 1078. Concluding
that no such duty exists, the court then sought to establish a
standard that would “assure an indigent appellant that requi-
site equality both of representation by counsel and access to
appellate review that will satisfy the due process and equal
protection concerns” identified by the United States Supreme
Court in Anders v. California, 386 U.S. 738 (1967). Id. at
1079. The court set out specific procedures for Oregon courts
to apply in “appeals of right by indigent persons with a consti-
tutional right to counsel in their criminal appeal,” establishing
the two-part Balfour brief discussed above. Id. at 1079-80. As
part of formulating those procedures, the court emphasized
that because counsel is not ethically responsible for the con-
tents of Section B, counsel “shall present to the court in the
brief the issue that the client seeks to raise in the manner that
the client seeks to raise it.” Id. at 1080. Shortly after the Ore-
gon Supreme Court issued Balfour, its requirements were
codified in Oregon Rule of Appellate Procedure 5.90, effec-
tive January 1, 1994.
Specifically, Rule 5.90 provides that when appointed appel-
late counsel has thoroughly reviewed the record, conferred
with trial counsel and the client, and determined that the case
raises no meritorious issues, counsel must file a two-part Bal-
four brief. Or. R. App. P. 5.90(1) (2001). Section A, signed
by counsel, must contain a statement of the case including a
statement of facts, a description of any demurrer or significant
motion filed in the case and the trial court’s disposition of the
motion, and a statement that the case is being submitted pur-
suant to Rule 5.90. Or. R. App. P. 5.90(1)(a) (2001). Section
FARMER v. BALDWIN 9877
B of the brief is signed by the client alone, and demonstrates
significant relaxation of the procedural requirements with
which a brief to the Oregon Court of Appeals would other-
wise have to comply. The operative version of the rule when
Farmer sought appellate review in this case provided that Sec-
tion B of his brief “shall contain any claim of error requested
by the client,” and required only that Section B “attempt to
state the claim and any argument in support of the claim as
nearly as practicable in the manner that the client seeks, in
proper appellate brief form.” Or. R. App. P. 5.90(1)(b) (2001).
Cf. Or. R. App. P. 5.45 (2001). Further, when appointed coun-
sel submits a Balfour brief to the Oregon Court of Appeals,
Rule 5.90 provides a similar procedure to seek review in the
Oregon Supreme Court, authorizing a petition for review con-
taining a Section A that complies with Rule 9.05 (governing
generally petitions for review in the Supreme Court), and a
Section B that complies with the Balfour standard set out in
Rule 5.90. Or. R. App. P. 5.90(5) (2001).
As noted, Farmer’s petition for review to the Oregon
Supreme Court did not comply strictly with Rule 5.90. Rather
than stating Farmer’s federal claims in a “Section B,” the peti-
tion instead attempted to incorporate by reference Farmer’s
Court of Appeals’ briefing, which, by means of the attach-
ment described above, expressly included those federal
claims. We have found no Oregon case law examining the
language of Rule 5.90 in effect when Farmer filed his petition,
particularly the provision that Section B of his brief “shall
attempt to state the claim and any argument in support of the
claim as nearly as practicable in the manner that the client
seeks, in proper appellate brief form.” Or. R. App. P.
5.90(1)(b) (2001). Nor have we found any Oregon case law
construing the boundaries of current Rule 5.90, which omits
the comma after the words “the client seeks”. Or. R. App. P.
5.90(b)(i) (2007).
However, as this court has previously noted, the Oregon
Supreme Court has routinely considered briefs filed in the
9878 FARMER v. BALDWIN
court of appeals not only to adjudicate the merits after review
has been granted, but also, at least in some cases, to determine
whether to grant review in the first instance. Wells v. Maass,
28 F.3d 1005, 1009 (9th Cir. 1994) (collecting cases). This
practice, in combination with the relaxed pleading standards
enunciated in Balfour and codified in Rule 5.90, presents a
substantial argument that Farmer “fairly presented” his fed-
eral claims to the Oregon Supreme Court. See Insyxiengmay
v. Morgan, 403 F.3d 657, 668-69 (9th Cir. 2005) (holding that
a petition to the Washington Supreme Court fairly presented
federal claims by incorporating an appendix that contained
arguments relating to three federal claims, when state law did
not prohibit such incorporation); see also Lockheart v. Hulick,
443 F.3d 927, 929 (7th Cir. 2006) (concluding that if it is per-
missible under state law for a petitioner to raise an argument
to an appeals court by incorporating other documents, a peti-
tioner may fairly present his claim by incorporating such doc-
uments). Oregon law has not yet addressed that issue, and we
do not think it appropriate to substitute our judgment for that
of the Oregon Supreme Court regarding the interpretation of
Oregon’s appellate procedures and practice. Because of the
unique and delicate interplay of federal and state interests
implicated by federal habeas corpus actions, and because res-
olution of this question as a matter of Oregon law is likely to
substantially affect Oregon state prisoners seeking federal
habeas relief, we believe this question is most appropriately
answered in the first instance by the Oregon Supreme Court.
CONCLUSION
We certify the following question to the Supreme Court of
Oregon:
Whether, under its rules or practice, the Oregon
Supreme Court would deem a federal question not
properly raised before it, when that question has
been presented by means of an attachment to a Bal-
four brief filed in the Court of Appeals, and the
FARMER v. BALDWIN 9879
attachment served as (but was not labeled as) Section
B of said brief, and the petitioner specifically states
in his petition to the Supreme Court that his reasons
for seeking review are set forth in the Balfour brief.
We respectfully request the Oregon Supreme Court to exer-
cise its discretionary authority under Oregon’s Uniform Certi-
fication of Questions of Law Act, OR. REV. STAT. §§ 28.200
to .255 (2005), to accept and decide this question. If the Ore-
gon Supreme Court decides that the question presented in this
case is inappropriate for certification, or if it declines the cer-
tification for any other reason, it should so state and we will
resolve the question according to our understanding of Ore-
gon law.
The Clerk will file a certified copy of our Order with the
Oregon Supreme Court under OR. REV. STAT. § 28.215
(2005). This appeal is withdrawn from submission and will be
submitted following receipt of the Oregon Supreme Court’s
Opinion on the question certified. This panel retains jurisdic-
tion over further proceedings in this court. The parties will
notify the Clerk within one week after the Oregon Supreme
Court accepts or rejects certification, and again within one
week after the court renders its opinion.
IT IS SO ORDERED.
_________________________________
STEPHEN REINHARDT
Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit
COUNSEL LISTING
Lisa Hay, Steven T. Wax, Assistant Federal Public Defend-
ers, 101 S.W. Main Street, Suite 1700, Portland, Oregon,
97204, petitioner-appellant.
9880 FARMER v. BALDWIN
Erin C. Lagesen, Assistant Attorney General, 1162 Court
Street, NE, Salem, Oregon, 97301-4096, for respondent-
appellee.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.