Summary
The Supreme Court of Oregon answered a certified question from the Ninth Circuit concerning whether a petitioner adequately presented claims for discretionary review when a Balfour brief attachment served as Section B and was incorporated by reference into a petition for review. The court held that this method could satisfy the relaxed requirements of Oregon Rule of Appellate Procedure 5.90 and permit consideration of the claims, although it criticized the presentation as ineffective appellate advocacy. The court declined to reframe the certified question to address whether Oregon Supreme Court review was an available remedy for federal habeas exhaustion purposes.
Topics
Practice areas
Questions Presented
- Whether, under Oregon appellate rules and practice, a petitioner may present a legal question through an attachment to a Balfour brief filed in the Court of Appeals when the attachment serves as Section B and the petitioner incorporates the brief by reference into a petition for review.
- Whether the Oregon Supreme Court should reframe the certified question and declare that discretionary review in that court is unavailable for federal habeas exhaustion purposes for post-conviction petitioners or other specified classes of litigants.
Holdings
- Under ORAP 5.90, a petitioner may present a question of law by attaching it to a Balfour brief filed in the Court of Appeals, when the attachment serves as Section B and the petitioner incorporates that brief by reference into the petition for review.
- The Oregon Supreme Court declined to reframe the certified question or declare that discretionary review is unavailable under federal law for post-conviction petitioners, Balfour litigants, fact-based claimants, or other classes of litigants.
Key quotations
“Under ORAP 5.90, a petitioner may present a question of law to this court by means of an attachment to a Balfour brief filed in the Court of Appeals, when the attachment serves as section B of said brief, and the petitioner incorporates that same brief by reference into his petition for review.” (at 878-79)
“We do not think that, as a state court, we have the power to dictate what a PCR petitioner must do to satisfy the exhaustion requirement, because that requirement is a matter of federal law, to be decided by the federal courts.” (at 886)
Factual background
A jury convicted George Edward Farmer of murder, and the trial court imposed a sentence of 25 years to life imprisonment. In post-conviction proceedings, Farmer raised nearly 100 claims under state and federal constitutions. His appointed appellate counsel filed a Balfour brief, and Farmer attached his post-conviction petition as the purported Section B; in his petition for review to the Oregon Supreme Court, he referred to the Balfour brief but did not attach it. The Oregon Supreme Court denied review, after which the federal district court dismissed Farmer's habeas petition for failure to exhaust state remedies.
Procedural history
Farmer was convicted of murder and sentenced to 25 years to life. After an unsuccessful direct appeal, he sought post-conviction relief, which the PCR court denied; the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. The federal district court dismissed his habeas petition for failure to exhaust state remedies. On appeal, the Ninth Circuit certified to the Oregon Supreme Court the question whether Farmer's use of an attachment to a Balfour brief, incorporated by reference into his petition for review, sufficiently presented his federal claims.
Remand instructions
The certified question was answered; the opinion anticipated that the case would return to the Ninth Circuit for that court to determine the federal exhaustion issue.