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ARGUMENT
I. The exhaustion and procedural default rules
are essential components of Congress's policy to limit habeas to a secondary role.

A. History.

"Habeas corpus 'is designed to guard against extreme malfunctions in the state criminal justice systems.' " Brecht v. Abrahamson, 507 U. S. 619, 634 (1993) (emphasis added) (quoting Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in the judgment)). This role is "secondary and limited." Barefoot v. Estelle, 463 U. S. 880, 887 (1983). Keeping federal habeas confined to that role has been a continuing challenge for both Congress and this Court for well over a century.

In the original Judiciary Act, Congress gave the federal courts no jurisdiction to issue habeas corpus for state prisoners, except to bring them to court to testify. See Judiciary Act of 1789, ch. 20, §14, 1 Stat. 81, 82. Only limited exceptions were made before the Civil War. See Mayers, The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Rev. 31, 33 (1965). In 1867, Congress broadened federal habeas jurisdiction for the purpose of enforcing the Thirteenth Amendment and related emancipation legislation. The expansion had nothing to do with using habeas corpus to review the final judgment of a competent court in a criminal case. See id., at 36-37; Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev. 1079, 1108-1117 (1995). Such use was precluded under the case law up to that time, especially Ex parte Watkins, 3 Pet. (28 U. S.) 193, 209 (1830). See Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 928-933 (1998). Nevertheless, the jurisdiction was used for that purpose during Reconstruction and the years immediately following. In 1884, the House Judiciary Committee reported,

"But if the act of 1867 intended to allow interference in cases of arrests by State officers, under State authority, the committee do not believe that it was contemplated by its framers or can properly be construed to authorize the overthrow of the final judgments of the State courts of general jurisdiction, by the inferior Federal judges, whose judgments shall be final, and thus make them a court of errors over the highest tribunals of the States." H. R. Rep. No. 730, 48th Cong., 1st Sess., 5 (1884) (emphasis added); see also Fay v. Noia, 372 U. S. 391, 452-453 (1963) (Harlan, J., dissenting).

Congress's solution was to restore the appellate jurisdiction of this Court in habeas cases, which had been repealed during Reconstruction, with the confidence that this Court would rein in the lower federal courts. See Forsythe, 70 Notre Dame L. Rev., at 1121-1123; Act of Mar. 3, 1885, ch. 353, 23 Stat. 437 (1885). The Court responded by announcing the exhaustion rule in Ex parte Royall, 117 U. S. 241, 252-253 (1886). Although stated in terms of discretion, the rule effectively required state prisoners to pursue their remedies through the state appellate courts. The remedies to be exhausted at that time included a writ of error to this Court, see Urquhart v. Brown, 205 U. S. 179, 183 (1907), virtually shutting down federal habeas for persons convicted in state courts. See Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv. L. Rev. 1315, 1327 (1961). After the change in this Court's jurisdiction from mandatory to discretionary review for most cases, the remedies to be exhausted no longer included a right to a definitive resolution of the merits by this Court. See id., at 1328; Darr v. Burford, 339 U. S. 200, 235 (1950) (Frankfurter, J., dissenting). ⁽²⁾ Even so, as late as 1950, it was the rule that the federal habeas court "may decline to examine further into the merits because they have already been decided against the petitioner" and "that the state's highest courts should ordinarily be subject to reversal only by this Court . . . ." See Darr, supra, at 215, 217.

Prior to the period of de novo review, exhaustion was much more than a rule of timing. Its purpose was to require the defendant to go to the state courts for a ruling on the merits which would, in most cases, be the last full examination of the case. "[A] federal court will not ordinarily re-examine upon writ of habeas corpus the questions thus adjudicated." Ex parte Hawk, 321 U. S. 114, 118 (1944) (per curiam) (emphasis added). Relitigation in federal court was limited to cases where "the remedy afforded by state law proves in practice unavailable or seriously inadequate . . . ." Ibid.; see also Fay v. Noia, 372 U. S., at 459-460 (Harlan, J. , dissenting). This is the rule Congress understood it was endorsing when it codified the exhaustion rule in 1948. See Darr, 339 U. S., at 211; Rose v. Lundy, 455 U. S. 509, 516 (1982).

Brown v. Allen, 344 U. S. 443 (1953) is the case generally credited with (or blamed for) abandoning the rule of deference and establishing de novo review as the norm. See, e.g., Noia, 372 U. S., at 460 (Harlan, J., dissenting); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 154-155 (1970); but see Wright v. West, 505 U. S. 277, 287-288 (1992) (opinion of Thomas, J.) (disputing that Brown actually held that); Brief for Criminal Justice Legal Foundation as Amicus Curiae in Wright v. West, No. 91-542, pp. 14-16 (same). Judge Friendly attributes the abandonment of this rule and the establishment of de novo review on federal habeas to "the growth of the country and the attendant increase in the Court's business," so that the Court "had to summon the inferior federal judges to its aid" to correct errors in state courts. Friendly, supra, at 155. While growth of the country may be part of the explanation, there can be no doubt that state court resistance to civil rights and to the greatly expanded rights for criminal defendants in the 1950s and 1960s was also a major factor. By the mid-1970s, this hostility to federal rights had abated, see Stone v. Powell, 428 U. S. 465, 493, n. 35 (1976), and a period of retrenchment began, culminating in the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

AEDPA made many changes to habeas corpus law, but the most important was the abrogation of the rule of de novo review. See Williams v. Taylor, 529 U. S. 362, 404 (2000). Simultaneously, Congress strengthened the exhaustion rule, specifying that the state could expressly waive the rule, but not inadvertently default it. See 28 U. S. C. §2254(a)(3). Congress must have considered exhaustion to be a vitally important policy to make it one of the few defenses in the law which cannot be lost by failure to assert it. The reason lies in how three rules--exhaustion, default, and deference--fit together to restrain federal habeas from substituting for state appeal.

B. Three Interlocking Pieces.

In O'Sullivan v. Boerckel, 526 U. S. 838 (1999), both the majority opinion and Justice Stevens' dissent addressed the "interplay" of the exhaustion and procedural default rules. See id., at 848. The majority agreed with the dissent that

"a prisoner could evade the exhaustion requirement--and thereby undercut the values that serves--by 'letting the time run' on state remedies. Post, at 853. To avoid this result, and thus 'protect the integrity' of the federal exhaustion rule, ibid., we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts, see post, at 854." Ibid. (emphasis in original).

The O'Sullivan dissent's assertion that the two rules are "analytically distinct," id., at 850, is an overstatement. The fact that one of the principal purposes of the procedural default rule is to protect the integrity of the exhaustion rule necessarily ties the two together. The procedural default rule cannot serve this function unless the requirement of fair presentation is identical for both rules. If we assume the validity of present doctrine that the exhaustion requirement is satisfied by letting the time run, so that no state remedy remains available, ⁽³⁾ then it is essential that any claim "exhausted" in this improper manner be subject to the procedural default rule. Otherwise, there would be a loophole allowing defendants in state criminal proceedings to bypass state courts and raise their claims for the first time in federal court, without qualifying for any of the exceptions to the procedural default rule.

Stated another way, every claim asserted on federal habeas falls into one and only one of three categories: (1) it was fairly presented to the state courts; (2) it is unexhausted; or (3) it is procedurally defaulted. If the claim was fairly presented, the federal court can proceed to the questions of AEDPA and Teague v. Lane, 489 U. S. 288 (1989). See Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). If any claim is unexhausted, the petition must be dismissed. Rose v. Lundy, 455 U. S. 509, 522 (1982). If the claim is procedurally defaulted, it must be denied unless the petitioner can show cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U. S. 722, 746, 757 (1991).

With the enactment of AEDPA, the exhaustion and procedural default rules not only reinforce each other, but they now serve the additional purpose of protecting the integrity of the "deference" standard of 28 U. S. C. §2254(d). After AEDPA, it is once again the exception rather than the norm for a question decided in state court to be decided again in federal court, as it was before Brown v. Allen. See Scheidegger, 98 Colum. L. Rev., at 946; supra, at 6. If the state court decided the merits, then the federal court need only satisfy itself that the state court's decision is neither contrary to nor an unreasonable application of Supreme Court precedent. At that point the habeas case is over, and the federal court need not decide the underlying question. See, e.g., Lockyer v. Andrade, 538 U. S. __, 155 L. Ed. 2d 144, 155, 123 S. Ct. 1166, 1172 (2003); Woodford v. Visciotti, 537 U. S. __, 154 L. Ed. 2d 279, 288, 123 S. Ct. 357, 361 (2002) (per curiam). ⁽⁴⁾ Only by such shortening of the decision process would this section achieve Congress's goal in enacting it, to reduce delay. See Williams v. Taylor, 529 U. S., at 404.

State criminal defendants sometimes perceive, often accurately, that the federal courts of their circuit are more likely to look favorably on a marginal claim than the courts of their state. For example, Woodford v. Visciotti, supra, is quite typical of California capital cases, where the California Supreme Court decides an ineffective assistance claim well within the boundaries of this Court's precedents only to have it erroneously vacated on federal habeas corpus, in violation of the standard of AEDPA. This Court summarily reversed in Visciotti, and hopefully the clarification of the standard will result in habeas being properly denied in similar cases in the future.

Defendants seeking to avoid this result may see it in their interest to avoid obtaining a state court resolution of the merits of their federal claim. The fair presentation requirement, properly applied, will prevent such evasion of the intent of Congress. Castille v. Peoples, 489 U. S. 346, 351 (1989) held that the fair presentation requirement was not fulfilled when the petitioner presented his claim to the state court in a manner that would not normally result in a decision on the merits.

The Ninth Circuit held in the present case that the exhaustion requirement is satisfied if the Oregon Court of Appeals merely had notice that a federal claim existed in the case, regardless of whether the petitioner actually presented that claim to that court. Reese v. Baldwin, 282 F. 3d 1184, 1193 (CA9 2002). This Court unequivocally rejected the notice theory of exhaustion in Keeney v. Tamayo-Reyes, 504 U. S. 1, 10 (1992): "Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress surely meant that exhaustion be serious and meaningful." With the enactment of AEDPA, meaningful exhaustion is more important now than it was when Keeney was decided.

C. Serious and Meaningful Appeals.

When Congress enacted §2254(d), regarding claims "adjudicated on the merits in State court proceedings," it no doubt had principally in mind claims denied in written opinions by appellate courts. Amicus CJLF does not denigrate the written rulings of trial courts, but it is common knowledge that appellate courts more often have the resources needed to produce a quality opinion on a substantial question. The more thorough the state opinion, the more straightforward will be the task of the federal habeas courts. Summary denials and denials with minimal explanation can present problems in the application of §2254(d). See Washington v. Schriver, 255 F. 3d 45, 52-53 (CA2 2001) (noting difficulty and division among circuits); cf. Coleman, 501 U. S., at 740 (summary denial and procedural default).

While summary affirmances are, to some extent, a necessary evil for overburdened appellate courts, a reasoned opinion is a far more likely result if the appellant has presented a substantial claim of a violation of a constitutional right. Conversely, summary rejection is far more likely when an appellant presents a claim devoid of content. The general rule throughout the United States is that an appellate court is justified in treating a claim as waived if it is presented without facts, argument, or authorities.

The California rule is typical:

     "The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the courts may treat it as waived, and pass it without consideration." 9 B. Witkin, California Procedure §594, p. 627 (4th ed. 1997); People v. Stanley, 10 Cal. 4th 764, 793, 897 P. 2d 481, 497 (1995) (quoting previous edition of Witkin for this point).

Oregon follows a similar rule. "Defendant offers no argument on this assignment [of error] and cites no cases. The assignment not having been discussed in the brief, it 'is presumed waived,' [citation], or it is 'abandoned.' [Citation.]" Meskimen v. Larry Angell Salvage Co., 592 P. 2d 1014, 1019 (Or. 1979); Peterson v. Maass, 882 P. 2d 1140, 1141, n.2 (Or. App. 1994) (applying Meskimen to constitutional claims in PCR case). ⁽⁵⁾ So do other courts around the country, applying it alike to civil and criminal cases and constitutional as well as nonconstitutional issues. See, e.g., Commonwealth v. Johnson, 602 N. E. 2d 555, 558, n. 6 (Mass. 1992) (search and seizure claim without argument waived); New England Tel. & Tel. Co. v. City of Franklin, 685 A. 2d 913, 918 (N. H. 1996) ("passing reference" insufficient, argument waived). A party who claims a violation of both the state and federal constitutions must cite authority for both, or the unsupported claim is waived. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S. W. 2d 371, 375, n. 4 (Tex. 1998) (claim under both First Amendment and parallel Texas provision, state claim waived by lack of authority).

Federal practice is also in accord. "Issues presented in the brief will be dismissed or deemed waived if the appellant's contentions are omitted, if no relevant authority is cited, or if the brief merely incorporates by reference arguments presented to the District Court." 20A J. Moore, Moore's Federal Practice §328.20[9], p. 328-14 (3d ed. 2003) (footnotes omitted). "[A]n argument or claim mentioned only in passing or only in a footnote is not adequately raised or preserved for appellate review." Id., at 328-15 to 328-16. Indeed, if a habeas petitioner files a brief in the Ninth Circuit like the one Reese filed in the Oregon Supreme Court, the Ninth Circuit itself will consider the point waived. See Acosta-Huerta v. Estelle, 7 F. 3d 139, 144 (CA9 1992); see also Reese v. Baldwin, 282 F. 3d, at 1195 (Nelson, J., dissenting).

Looking at Reese's petition for review and the Oregon cases on waiver by failure to brief, it is evident that the Oregon Supreme Court could have denied relief on this basis and that this would be an adequate and independent state ground sufficient to deny federal habeas relief. However, that basis for decision would raise all of the familiar problems of determining the actual basis for a summary order. See generally Coleman, supra. That problem is particularly acute when the procedural default consists of a dismal failure to make any case on the merits, since the state judges themselves may not clearly distinguish whether they are denying relief for lack of merit or failure to argue any merit. A better basis for decision is that a contention on appeal so lacking in argument or authority that a court would be justified in deeming it waived under the standards prevailing generally in American appellate courts is insufficient, as a matter of federal habeas law, to constitute a fair presentation of the claim. Because the claim was not fairly presented, it is unexhausted if the petitioner can still return to the state courts to fairly present the claim, and otherwise it is procedurally defaulted.

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2. Darr has been overruled on other grounds. See infra, n. 10.

3. We challenge this assumption in Part II, infra.

4. The habeas court may decide the merits first, as a correct decision is necessarily a reasonable decision, see Weeks v. Angelone, 528 U. S. 225, 237 (2000), but this will typically not be the most efficient method.

5. We understand that Oregon law on this point will be described in more detail in the Oregon Attorney General's brief, so we will not repeat it here.