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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

In the present case, the Ninth Circuit has directed that a Sixth Amendment claim be litigated on the merits in federal habeas corpus despite the fact that the habeas petitioner did not fairly present the claim at either level of the state's appellate process, after counsel appointed for the petitioner at state expense determined that the claim had no merit. Such unnecessary relitigation of abandoned claims is contrary to the interests that CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The facts and procedure of the present case, taken from the Ninth Circuit's opinion, may be summarized as follows:

Michael Reese was convicted in an Oregon state court of two counts of kidnapping and one count of attempted sodomy. Reese v. Baldwin, 282 F. 3d 1184, 1186 (CA9 2002). His convictions were affirmed on appeal, but his appellate counsel twice obtained reversals and remand for resentencing. Id., at 1186-1187. However, on the third round, new appellate counsel found no meritorious issues to brief and followed an Oregon procedure, called a Balfour brief, which allows the defendant to brief pro se issues he wishes to raise. See id., at 1187, and n. 1.

On state post-conviction review (PCR), Reese made a claim of ineffective assistance of appellate counsel, among other issues not relevant here. Id., at 1188. His pro se petition did not cite federal authority for this claim, but the court appointed counsel who filed an amended petition which did cite the Sixth and Fourteenth Amendments. Ibid. On appeal from the trial court's denial of relief, a different attorney was appointed for Reese. He could find no meritorious issues and filed another Balfour brief. Reese's pro se PCR petition was attached as his part of the Balfour brief. Ibid. The Ninth Circuit says counsel "inexplicably" did this. Ibid. Since this portion of the Balfour brief is normally done by the appellant himself, if this choice was made without his knowledge or over his objection, it is surely up to him to say so. The most logical inference, in the absence of any evidence to the contrary, is that Reese himself chose to attach his pro se petition rather than the counsel-prepared petition. For whatever reason, no federal authority in support of this claim was cited to the Oregon Court of Appeals.

On petition for discretionary review to the Oregon Supreme Court, a petition was prepared by counsel. It made passing reference to a claim of ineffective assistance of appellate counsel, but cited no facts, made no argument, and cited no authorities, state or federal, in support of the claim. Id., at 1188-1189, and n. 5.

On federal habeas, the District Court found the ineffective assistance of appellate counsel claim to be procedurally defaulted. Id., at 1189. The Court of Appeals for the Ninth Circuit reversed, believing the determinative question to be "whether Reese alerted the Oregon Supreme Court to the federal nature of his claim of ineffective assistance of appellate counsel." Id., at 1192 (emphasis added).

SUMMARY OF ARGUMENT

The state appellate court is the primary forum for reviewing state trials, including any federal questions arising in those trials. The role of federal habeas corpus is "secondary and limited." The exhaustion and procedural default rules are essential components of Congress's policy to limit federal habeas corpus to its proper role. Not only does the procedural default rule protect the integrity of the exhaustion rule, as this Court has previously recognized, but these two rules also protect the integrity of the new "deference" rule of the Antiterrorism and Effective Death Penalty Act of 1996.

Since Wainwright v. Sykes in 1977, the procedural default rule has been considered a part of the doctrine of adequate and independent state grounds. However, the rule was originally understood to be part of the exhaustion requirement. The numerous problems with the adequate and independent state grounds doctrine make it appropriate, at this point, to reconsider that original understanding. The doctrine of adequate and independent state grounds was developed for direct review and has not imported well into habeas corpus. Interpretation of the summary and unexplained state-court dispositions which are common in routine criminal cases has proven to be a continuing problem. The Ninth Circuit has applied the "strictly and regularly followed" requirement in such a severe manner as to create a perverse incentive for states to create rigid rules for cutting off state collateral review. A default rule based on the exhaustion requirement, if properly implemented, would simplify the task of federal habeas corpus and eliminate this perverse incentive.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.