Baldwin v. Reese - Oral Argument

Argument of Gen Hardy Myers

Chief Justice Rehnquist: We'll hear argument now in No. 02-964, George Baldwin v. Michael Reese.

General Myers.

Mr. Myers: Mr. Chief Justice, and may it please the Court:

When a state prisoner decides to attack his conviction on the basis of a claimed violation of Federal constitutional right, your cases have held that he must first alert the state courts he is raising a Federal claim, if that claim is to be exhausted for Federal habeas purposes.

But what the prisoner must say to the state courts to tell them he is raising a Federal claim continues to be a... a troubled area of Federal habeas law.

It is one that has divided the circuits and is producing very different analyses and results.

Some cases are holding that the prisoner must make some explicit citation or reference to the Federal source of his claim.

Some cases are holding that a Federal claim has been fairly presented even when... even though what the prisoner is saying to the state courts could as... as... as reasonably be interpreted as stating a state law claim.

And some courts have held that a Federal claim is fairly presented even when the statement of the claim is clearly a claim under state law only.

This continuing... and in this... in this case...

Justice O'Connor: Well, we're reviewing a Ninth Circuit holding, which seems fairly open-ended.

How would you characterize the Ninth Circuit rule?

Mr. Myers: Your Honor, I was about to describe it is a transformation of the responsibility of the state prisoner to present his claim, a transformation of that into a responsibility of the... of the state court... state courts to, in effect, step into the shoes of the state prisoner and complete or try to complete an incompletely presented claim.

This... this overall division among the circuits and this case from the Ninth Circuit, we think, Your Honors, illustrates or confirms very strongly the need for further clarification by this Court as to exactly what must be said by...

Justice O'Connor: Well, do you agree with your opponents here on at least some of the ground rules that would suffice?

I mean, is it enough to cite a Federal constitutional provision or a Federal statute or other provision describing the right as Federal?

You're both in agreement that would do?

Mr. Myers: Yes.

We believe that is so, so long as...

Justice O'Connor: How about if you cite at least a... a reported case that has decided the claim on a Federal basis?

You make your claim and cite a case that...

Mr. Myers: Yes...

Justice O'Connor: clearly has decided the claim on a Federal basis.

Is that... you're both in agreement that would do?

Mr. Myers: Yes, Your Honors, so...

Justice O'Connor: And what if a... a claim is spelled out that necessarily must be based on a Federal right to exist at all?

Mr. Myers: Yes, Your Honor, that is part of the test that we propose...

Justice Scalia: Why yes?

I don't understand that.

I mean, why is it necessarily a Federal claim?

It's necessarily a Federal claim only if it's a valid claim.

It might be an erroneous state claim.

Mr. Myers: Well, we are referring to necessarily, Your Honor, in the sense that the... the source of the claim, that is its Federal source, is...

Chief Justice Rehnquist: Who...

Justice Scalia: But the... the...

Mr. Myers: is unmistake...

Justice Scalia: He hasn't read the state constitution.

He... he makes a due process claim.

Now, you're... you're going to say, since there is no Due Process Clause in the state constitution, but there is in the Federal Constitution, we must assume it's a Federal claim.

Justice Kennedy: Why?

Justice Scalia: It may be an erroneous state claim.

Mr. Myers: Your Honor, we think that the state court...

Justice Scalia: And I don't want to have to go through the trouble of figuring out whether there's a valid state claim.

I... I mean, this is going to require a Federal court every time there's such a claim to go through state law and determine whether there is anything to this under state law.

Why should... why should we do that?

Why, I mean, why aren't your first two requirements enough?

Look at... cite a Federal case, cite a Federal provision.

Is... is this an enormous burden?

Mr. Myers: No, Your Honor, and we would be quite content...

Justice Scalia: So why do you want to add anything to it?

I... I don't... I don't really understand going beyond that.

Justice Stevens: Let me ask you the other... the contrary question.

Suppose the... the prisoner alleges, I had a lawyer who didn't even graduate from law school, and because I had such a law... lousy lawyer, I lost the case and I'm in jail, and I would be innocent if I were not in jail, but he doesn't cite any cases or any constitutional provision.

Would that have... present a Federal claim?

Mr. Myers: No, Your Honor.

Inasmuch as...

Justice Stevens: You don't think so?

Mr. Myers: Not... not necessarily...

Justice Stevens: Yeah, but if he added, and therefore, it violated the Federal Constitution, then it would be a Federal claim?

Mr. Myers: Your Honor, it would... the... a Federal source of the claim would have been identified, but, of course, whatever further clarification the Court might consider adopting or adopt, the balance of the statement of the claim also has to meet the requirements of fair presentation.

Justice Stevens: But why... why doesn't the state judge know he's raising a claim of inadequate assistance of counsel that violates the Federal Constitution?

Doesn't that give the state judge a fair opportunity to decide the Federal question?

Mr. Myers: No, Your Honor, because the description of the claim that you just gave, apart from whether it's factually adequate or whatever could as... could equally address, or state a claim under state law.

Justice Stevens: Well, certainly...

Justice Kennedy: But that anybody knows...

Justice Stevens: but the question is whether it states a Federal claim that has been exhausted.

Doesn't it also state a Federal claim?

Mr. Myers: Not necessarily, Your Honor.

Justice Souter: I... I thought the Federal standards... and I was going to get into this, but let's do it in relation to Justice Stevens' hypothetical... I thought the Federal standards and the state standards for adequate assistance of counsel were... were in substance the same, and in, you know, in Oregon.

And... and if they are the same, why is it unfair to the state or to the state courts to construe a... a... a statement like the one Justice Stevens just read, as stating a Federal as well as a state claim?

The court is going to do the same thing no matter how it construes it.

Mr. Myers: Your Honor, when state judicial authority is invoked to address a claim before it, it's of paramount importance for that court to know whether it is addressing a state claim...

Justice Ginsburg: No, my...

Chief Justice Rehnquist: Well, we... we need to lay down a rule, I think, that is... can be applied generally and not just to Oregon, so that, of course, a peculiarity of Oregon law ought not to control what we're trying to do in making a more general statement.

Mr. Myers: No, Your Honor, and I would like to...

Justice Souter: May... maybe I didn't make my... my point.

My... my point was, if a claim is stated as a matter of fact, which under the law of the state and the law of the United States is governed by identical standards, what is unfair about construing that as a Federal as well as a state claim, regardless of what label is put on it?

Mr. Myers: And, Your Honor, as I was saying a few moments ago, it... the answer to that goes to the fact... or rests on the fact that the state court's authority to address a state law-based claim is very different, of course, from its authority to address a Federal law-based claim.

It has the ability to judge and decide the state law claim any way it... it thinks is correct under state law.

It must, of course, in the relation to a Federal claim, follow the precedents faithfully of this Court...

Justice Souter: No, but I'm... my... the... the... my... my question assumed that the... that the substantive law governing the claim was the same under... under the state system and under the Federal system.

So my assumption is that you're going to get the same result, and the result is going to be equally right or equally wrong, regardless of... of... of whether you construe it as a state claim and a Federal claim.

Mr. Myers: But, Your Honor, the... the... the authority issue is crucial, because if the state court does not know whether it, in fact, has a state law claim before it, it does not know whether it has the prerogative in that case to change the rule.

Justice Breyer: Suppose...

Justice Souter: Well, it...

Justice Ginsburg: Oregon had said in prior decisions, as states sometimes do in dealing with constitutional provisions, we interpret inadequate assistance of counsel in our state to be strictly in tune with the way the Supreme Court interprets inadequate or ineffective assistance of counsel.

That is, our state standard is the same, identical, to the Federal, so there isn't any doubt about there being a difference between the state law and the Federal law.

The... the state supreme court has said, we take our lead from the Federal definition.

Mr. Myers: Your Honor, I... I would still assert respectfully that the... the... the clarity with which the claim is presented in terms of making clear whether there is a state claim or a Federal claim present is still of great importance, because the state court can still change its decision with respect to the state claim if it is a state claim.

Justice Souter: Sure it can, but the question is, what does it know when it sets out to adjudicate the case?

Is it fairly on notice at day one on a premise like Justice Ginsburg's that the claim is equally state or Federal?

And it seems to me that on a premise like hers, of course the state can fairly say the law is the same, doesn't matter at this point whether... whether I call it state or whether I call it Federal, so it's fair to assume it's both.

If the state court, let's say the state supreme court, later on says, we think we'll change our rule, then all the state court has to do is to say, the claim is either good or bad under Federal law and this... the result is now going to be different under state law.

But the state courts at each stage on a premise like Justice Ginsburg is fairly on notice of what it has to decide.

There's no unfairness to it.

That's the point that we're getting at, and I... and I don't understand your answer when you say it's important for them to know the source if there's no unfairness.

Mr. Myers: Well, Your Honor, with respect, we do think that there is unfairness if it is not absolutely and explicitly clear to the court that a Federal claim is being presented by a state court.

Justice Souter: You mean because it's just nice to know?

Mr. Myers: No, because it...

Justice Souter: It doesn't make any difference in the law.

It doesn't make any difference in... in the standards by which they would go about adjudicating it.

Mr. Myers: But it could, in the sense that they might want to change their position or interpretation with respect to state law.

Justice Stevens: Yes, but that... the change in position to allow the claim.

But we're only concerned with cases in which the state has denied relief.

If you could... if the state grants relief, there's no exhaustion problem.

He got the relief.

Mr. Myers: That's true, Your Honor.

Justice Stevens: And so if he's denied relief without knowing whether it's Federal or state, is there any possibility that if it were refiled, and clearly named Federal Constitution as the background, he would then grant relief?

Mr. Myers: I'm not sure, Your Honor.

I don't think so.

Justice Stevens: I don't see how it could possibly happen.

If the rules are the same, he made a conscientious examination, they claim, and said, you lose.

If he came back and added the words, cited some Federal case, he'd still lose.

So why hasn't the state had a fair opportunity to consider that claim and the interests of Federal is in par not, why are they not accommodated by that... by just saying, if you... if you made a claim that's clearly Federal on its facts and you've had a chance to decide it, why... why shouldn't that... that not count... be sufficient exhaustion?

Mr. Myers: Well, because we think at... again, Your Honor, we think... not only do I still feel the authority issue, very respectfully, is important, but also our whole approach toward fair presentation of Federal claims places a choice on the petitioner to make as to whether or not to assert a Federal claim.

Justice Scalia: General Myers, doesn't the burden on the habeas court have anything to do with this?

If... if this hypothesis is adopted, the habeas court will have to, I suppose, consider the facts and determine whether that statement of facts makes out a Federal claim or not, thing one.

Thing two, the Federal habeas court will then have to examine state court, a state law, to assure itself that state law and Federal law, with regard to this matter, are exactly the same.

And all of this is in order to save the habeas petitioner what burden?

The burden of saying Federal claim when he files his... his complaint.

What... does it seem to you a close question who should bear that burden?

Mr. Myers: No, Your Honor.

Justice O'Connor: How often are these habeas...

Mr. Myers: There is...

Justice O'Connor: petitioners represented by counsel in Oregon?

Is this... are... is counsel regularly appointed for Federal habeas petitioners?

Mr. Myers: For Federal habeas?

Justice Kennedy: Right.

Mr. Myers: Yes, I... well, like indigent Federal habeas, yes, I believe so, Your Honor.

Justice Souter: You don't know that?

In... in the state courts?

Mr. Myers: Oh, I'm sorry.

I... I...

Justice O'Connor: In... in the Federal court you think they're routinely appointed by the state?

Mr. Myers: No, not...

Justice O'Connor: A Federal habeas petitioner?

Mr. Myers: In Federal court, no, Your Honor.

They... they are...

Chief Justice Rehnquist: No.

Mr. Myers: They would...

Justice O'Connor: It would be up to the Federal rules.

Mr. Myers: they would probably be Federal, yes.

But they are...

Justice O'Connor: And must... must the petitioner seeking habeas relief also fairly present the factual basis for the claim?

Mr. Myers: Yes, Your Honor.

Justice O'Connor: Was that done here?

Mr. Myers: No, Your Honor.

Justice O'Connor: And did the state point that out alone?

Mr. Myers: No, Your Honor.

In the... in the habeas proceedings in the district court, we focused solely on the issue of the adequacy of that... of the identification of the claim as Federal in nature.

Justice O'Connor: Well, but if the petition contains no facts, you wouldn't point that out?

I... I don't understand.

Mr. Myers: Your Honor...

Justice O'Connor: Why wouldn't you say, but there are no facts?

Mr. Myers: Your Honor, in this case, we made a choice to concentrate or focus on the issue of the... of the sufficiency of the... of the identification of the claim as Federal, and we maintained that as the focus and that was the... the focus of the petition, of course, for...

Justice O'Connor: And you want us to decide this case on the assumption that facts were presented when indeed none were?

Mr. Myers: In this case, yes, Your Honor, inasmuch as we have not appealed from... we have not made that an issue below and appealed from it.

We have asked for review solely confined to the issue of the adequate... the adequacy of the... of the sufficiency of the... of the identification of the claim as Federal in nature.

If I could...

Justice Kennedy: May I... may I go back to the question...

Just to make it clear where... where your... what your rule is, the very asset Justice O'Connor said, does it suffice if you cite a constitutional provision, a case, a... a formulation.

And then we had another discussion, but that was only part of your test, because you also, I take it, assert that you... that the petitioner must set forth the factual basis for its claim... for his claim?

Mr. Myers: Yes, Your Honor.

Justice Kennedy: So that that's a two-part test.

It... and it seems to me that in some cases it's going to be fairly obvious what the facts are and in some cases it's fairly obvious what the legal standard is, and depending.

In the case that Justice Stevens puts, where he alleges just the facts that his... that his lawyer was not even a lawyer and... and indicates why it was ineffective, but... but doesn't cite a Federal provision, it seems to me any judge knows you have to have adequate assistance of counsel under the Sixth Amendment, and that in the case put by Justice Stevens, it is simply a formalistic requirement.

Now, it may be that you're going to say, although it's formalistic in some cases, it's necessary to run the habeas system that we have this rule.

Is... is... is the latter your position?

Mr. Myers: It... well, Your Honor, we don't... yes.

We don't believe that it's formalistic inasmuch as a claim so described could equally describe a violation of, conceivably, I suppose, state statute, but certainly a state constitution.

And I think it's at the very heart of the whole notion of... of... of Federalism or comity, as applied in habeas, that this Court enforce the reality that we have state constitutions that are offering protections...

Chief Justice Rehnquist: We certainly enforce it with respect to people raising claims in our Court.

We require very specifically that they refer to a specific source of Federal law before we will even decide it.

Mr. Myers: Yes, Your Honor.

I would...

Justice Ginsburg: How does the case decided, the Fitzgerald case, which is cited in page 34 of the red brief, it was just last term, when... when this Court said that the Court would consider a state court decision as relying on Federal grounds sufficient to support this Court's jurisdiction, if under the state's decisional law, the state and the Federal constitutional claim are treated identically, the content of the right is treated identically.

That... that decision from just last term says, you've got a claim out there and it's a constitutional claim and the Federal law and state law are identical, the content of the law is identical, we will treat it as Federal.

That was a decision just from last term.

Mr. Myers: I... I may have misunderstood the... that interpretation, Your Honor, because I thought this was still a very much open question as to whether...

Justice Ginsburg: This was not in the habeas context.

Mr. Myers: Yes, I understand.

And in the habeas context...

Justice Ginsburg: And it... what I read to you is... is from the decision itself.

The Court will consider a state court decision as relying upon Federal grounds sufficient to support the Court's jurisdiction.

That is, when the state courts have in other cases declared that they will apply the same analysis in considering the state constitutional claim as the Federal courts would, I think in that case it was equal protection.

But the... the Court... that was critical to the Court's deciding that case last term.

Mr. Myers: Well, if I am understanding it correctly, Your Honor, I would very much advocate for the Court not extending... I'm understanding it correctly... not extending that... that doctrine or view, if you will, into the habeas context.

Justice Scalia: It had to do with jurisdiction, not with pleading.

There was pled in the case a violation of Federal law.

There was no doubt that the person before the Court was claiming a violation of Federal law.

What the case held was that there is jurisdiction because the... we will assume that the state court made a ruling on a question of Federal law where it relies on state law that looks to Federal cases.

That's quite different from the pleading question that you have before you.

Justice Stevens: May I ask you what you understand to be the purpose of the exhaustion requirement?

Mr. Myers: It is, Your Honor, to assure that the states have a meaningful first response... opportunity to consider Federal attacks on their convictions, and to...

Justice Stevens: Do you... do you think the hypothetical that I gave you would give a state court a meaningful opportunity to decide the Federal question?

Mr. Myers: Yes, Your Honor.

Justice Stevens: Then it would seem we would follow the exhaustion requirement is satisfied.

Mr. Myers: Yes, Your Honor.

Justice Souter: May I go back to the question of appointment of counsel?

Is counsel routinely appointed for state petitioners in the state courts of Oregon...

Mr. Myers: Yes, Your Honor, by statute...

Justice Souter: for state habeas...

Mr. Myers: In the post-conviction relief process, yes.

Justice Souter: Okay.

Mr. Myers: Always, by statute.

There is one further reason also I'd like to mention to the Court for not adopting a view that generally says, if a state court's interpretation of a particular assertion of... of a... of a right, and the Federal interpretation are the same, therefore the Federal claim has been presented automatically.

And that is that I think that represents a very transitory rule for the Court to adopt inasmuch as the state interpretation of its own law could change at a given point in time, and thus, in a given jurisdiction, what was congruent ceases to be congruent.

This Court's interpretation of Federal law could change so that, again, where there might have been congruencies before, they... they have now become incongruent, and...

Justice Stevens: Don't you think it's likely that Federal judges sitting in the state would be aware of those changes?

Mr. Myers: Yes, I think they would be aware of them, Your Honor.

But also to come back to a point that Justice Scalia made, it... there could be also renewed and further issues as to whether there has been a change, whether they are congruent or not congruent...

Justice Stevens: But are you thinking of changes that are favorable to the claimant or favorable to the state?

Mr. Myers: Well, I think it could go either way, Your Honor.

Justice Stevens: But certainly if it's favorable to the claimant, it couldn't cause any harm.

It's only if you make it narrower that it would make a difference.

Mr. Myers: Yes.

Justice Scalia: I guess in every case where the Federal habeas court has some doubt whether a Federal claim was raised, the Federal habeas court, that is, where it is not explicitly stated, the Federal habeas court will have to inquire into state law to see whether it is indeed congruent with Federal law.

Isn't that right?

Mr. Myers: Yes, that's correct.

Any event, with the present state of the law within the circuits, and in light of the Ninth Circuit's decision, Your Honors, we very much hope that this Court will take the opportunity in this case to both reaffirm that it is the petitioner's responsibility to set forth, to choose and to set forth his Federal claim as Federal, and that you will provide further guidance as to how that must occur.

That furthers clarification can certainly work to serve all the interests that are at stake here, a true meaningful opportunity for the states to be able to... to have the first opportunity to decide the Federal questions.

It can reduce the amount of litigation that is occurring around the exhaustion issue, and, I think... and... and save precious resources, and I think, Your Honors, that a clear, further... a further clarification of the rule will actually serve the interests of petitioners by make... bringing meritorious Federal claims to... to decision more... sooner and more consistently.

Justice Ginsburg: What was wrong with the Ninth Circuit's position, at least with respect to the intermediate appellate court?

That is, it's reviewing a decision of a court below.

That court below has Federal written all over it.

Why isn't that a... a reasonable assumption that the... that the intermediate appellate court where there is jurisdiction as a matter of right, it's reviewing a decision, it's bound to read that decision?

Mr. Myers: Actually, Your Honor, in the petition for review in Oregon, the decision of the court below is included, but that in this case was a summary affirmance of the... of the trial court's decision.

Chief Justice Rehnquist: Well, you're talking about the court... the Supreme Court of Oregon.

I think Justice Ginsburg was asking about the Oregon Court of Appeals.

Mr. Myers: Yes, that's...

Chief Justice Rehnquist: The... the appeal from the trial court to the court of appeals.

Mr. Myers: I beg your pardon, Your Honor.

Well, insofar as that stage is concerned, the... the... the papers that were submitted to the court of appeals did not advise or tell that court that a Federal question was being raised, a Federal claim was being raised.

There was simply a claim of inadequate assistance of appellate counsel, but there was no indication that... whether that was a state claim, state law-based claim or a Federal law-based claim.

And both state and Federal law-based claims of inadequate assistance of appellate counsel had been... had been raised in the... in the... in the petition at the trial stage.

Chief Justice Rehnquist: Do you wish to reserve the rest of your time, General Myers?

Mr. Myers: I do.

Thank you.

Argument of Dennis Balske

Chief Justice Rehnquist: Very well.

Mr. Balske, we'll hear from you.

Mr. Balske: Mr. Chief Justice, and may it please the Court:

We have a narrow question of fair presentation here, and it isn't a great effort for the courts, I don't believe, in Mr. Reese's case, to go searching to find that he did fairly present.

We start out by going to the PCR petition itself, which alleges the violation both under the state and Federal Constitution.

It mentions the Sixth and Fourteenth Amendments.

And then, when the...

Chief Justice Rehnquist: You're talking about the trial court, correct?

Mr. Balske: Yes, I am.

And when...

Chief Justice Rehnquist: You have to... you agree you have to present the claim all the way up through the state?

Mr. Balske: I do, I do.

And when the trial court decides it, we go right into the Oregon clear statement rule.

Oregon post-conviction is designed to let the appellate courts know the basis of those trial court rulings, so we have the clear statement rule under 138.640.

Justice Kennedy: Well, there were... there were two... there was a petition and an amended position, as I recall.

Mr. Balske: Correct.

Justice Kennedy: Correct me if I'm wrong.

Mr. Balske: You're right.

Justice Kennedy: And the... the original petition did not recite the... the factual basis to support the claim.

That was only in the amended petition, and the amended petition was not... the amended petition, I... I take it, please correct me if I'm wrong, was... was the one in which the allegation of conflict of interest and the precise reasons for it was cited.

That seems to drop out of the case because then it's not... that amended petition, which contained the factual basis, is... is not incorporated or cited to the court of... the state court of appeals.

Mr. Balske: Well, well the... the way it works in PCR is the court, under the pleadings, decides the case based on the first amended petition.

That's the one that states the legal basis of the claim under the Federal and state Constitution.

That's the one that the judgment of the state trial court made and... and relied on.

So under the clear statement rule, then, when it made its decision and cited a Federal ground, under Oregon's clear statement rule, we have a decision on Federal grounds at that...

Chief Justice Rehnquist: No, you're... you're... you refer to a clear statement rule.

Is that a rule of Oregon law...

Mr. Balske: Yes.

Chief Justice Rehnquist: or a rule of Federal law?

Mr. Balske: That is a rule of Oregon law, and that...

Chief Justice Rehnquist: And what does... what does it... what does that... what's the case for it, and what does it say?

Mr. Balske: All right.

It's not a case, it's a statute.

Justice Scalia: Okay.

Mr. Balske: It's 138.640.

It's at the state's brief in the appendix at page 4, and it reads as follows, quote, the order making final disposition of the petition shall state clearly the grounds upon which the cause was determined, and whether a state or Federal question, or both, was presented and decided.

And in Mr. Reese's case, the trial court followed that rule and filed a memorandum of opinion that cited that its decision of the ineffectiveness claim was on Federal grounds only.

And then Mr.... then Mr. Reese appeals.

Justice Kennedy: Did... did... did the order of the Oregon trial court specify the facts upon which the Federal claim was...

Mr. Balske: No.

Justice Kennedy: was based?

Mr. Balske: No.

But again, that's not before the Court in the issue presented, and that issue was waived by the state in the Ninth Circuit.

They abandoned any position that Mr. Reese's claim wasn't sufficiently factually based, and we're presented with the question of fair presentation, whether or not he indicated...

Justice Breyer: Well, all right, but it wasn't, okay?

I mean, I'm in an appeals court, I've a lot to do...

Mr. Balske: Right.

Justice Breyer: thousands of cases.

There are judgments of all sorts below.

I don't read the judgments when I have thousands of cases.

I look and see, what is this individual complaining about?

Mr. Balske: Right.

Justice Breyer: So I look to see what the arguments are that he's making that the lower court made a mistake.

Now, if I was in the Supreme Court of Oregon, and I thought, but I lost this, that you shouldn't have to present it in the Supreme Court of Oregon, but the rule is you do.

Mr. Balske: Right.

Justice Breyer: All right?

Well, I'm there as a busy judge, I look at it, he makes no mention of the Federal claim, goodbye, that's the end of it.

I don't look up at the Federal claim.

So... what... what... why... how could we hold to the contrary?

Mr. Balske: There... let... let me help you there.

If you will turn to the... page 44 of the joint appendix, what you're going to find there is the petition for review to the Oregon Supreme Court.

And when you get to page 44, and 44 and 45 across, what you see is it follows the standard form, it's in proper form, nothing more.

But when you turn the page, as a busy judge you're scanning, as you're talking about, and you look and you say, what's it about, is this a state case or a Federal case, look on the first page, 46, index of authorities, constitutions.

Only one, the Federal Constitution, four constitutional amendments cited, Fifth, Sixth, Eight, Fourteenth...

Justice Breyer: But all that tells me is that somewhere in this brief they're cited, that's the table of authorities they cite.

That isn't what the argument is.

Mr. Balske: And... well...

Justice Breyer: So if I'm going to look to see what the argument is, I'll try to turn the page and...

Mr. Balske: A judge...

Justice Breyer: where does it say he's making the argument...

Mr. Balske: You're not going to look for an argument because you're an Oregon Supreme Court judge, and under the Oregon Supreme Court rule, I'm... yeah, 9.05(4)(A)(v), the petitioner only presents a brief argument if he wants to, it's optional.

You don't put argument into a petition for a review, so...

Justice Breyer: Do you have to have your reasons why they're wrong and so on?

Mr. Balske: Yes, and in...

Justice Breyer: Where is that?

Mr. Balske: that's where we turn to the next page, 47, statement of legal questions presented on review.

We... we see on the page across from the Federal Constitution, ineffectiveness... ineffective assistance of both trial court and appellate court counsel.

The next paragraph, statement of reasons for reversal of court of appeals.

Again we see ineffective assistance of both trial court and appellate court counsel.

So, it... we're scanning it, we're busy, we're just trying to decide whether we're going to review the case.

We're not deciding it on the merits.

We've got a...

Federal case.

We've got a Federal issue.

It's presented by Mr. Reese.

Chief Justice Rehnquist: I see.

Justice Kennedy: I... I couldn't possibly tell from this what... what the case was about, other than some free-floating ineffective assistance of counsel case.

Mr. Balske: And that...

Justice Kennedy: And... and are you saying that Oregon rules make it optional as to whether he's going to tell me what the case is about?

Mr. Balske: Yeah, what... well, whether you're going to brief it, whether you're going to present legal argument.

It's optional under...

Justice O'Connor: But there are no facts.

I mean, if you're in the Federal habeas court, why aren't you just out right there for having no facts?

Mr. Balske: Because the state waived that defense in this case.

I'm... I... that's just the way...

Justice O'Connor: But it... but the point is...

Mr. Balske: I'm sorry.

Justice O'Connor: as I understand my colleague's question, if the judge sees that there are no facts set out, why doesn't the judge just say, you're out of here?

Mr. Balske: The judge might say that, but the judge would say that in the context of a Federal question, a Federal issue presented of ineffective assistance of counsel under the Federal Constitution.

Chief Justice Rehnquist: But think he would say that on the basis of Oregon procedural law that...

Mr. Balske: Well...

Chief Justice Rehnquist: you... you just haven't said anything.

Mr. Balske: Well, I don't... well, it's conjecture what they would have decided or thought.

What's critical here is what was presented, the question today is what was presented versus...

Justice Souter: Okay.

Chief Justice Rehnquist: What... what... what is the hardship for a... for a petitioner in PCR Oregon...

Mr. Balske: Sure.

Chief Justice Rehnquist: to either say, I'm relying on section, you know, article XIV of the United States Constitution, or I'm relying on some Federal case.

I mean, that... that just seems a very minimal requirement.

Mr. Balske: Well...

Chief Justice Rehnquist: What's... what's hard about that?

Mr. Balske: Well...

Chief Justice Rehnquist: Could... can you answer that?

Mr. Balske: I... I can answer it by saying that the prisoners are pretty ignorant.

Their lawyers in the state post-conviction system, bless their souls, are not the sharpest lawyers in the world.

Chief Justice Rehnquist: Well, you... how sharp do you have to be to figure that out?

Mr. Balske: Well, tell you what, let me give you the perfect example in this case.

Turn to page 42 of the state's brief for its application of the rule.

Here's how sharp you have to be.

Now, I think if you read the cover of the brief, we see that five lawyers, including the attorney general of Oregon have...

Chief Justice Rehnquist: No, where... are... are you reading from some... in the brief?

Mr. Balske: Yes.

I'm sorry.

Please look at the top and then look at number IIA and read their language, alert the state court to the Federal legal source of the claim by, A, citing to the Sixth Amendment, quote, my appellate attorney violated my right to effective assistance of counsel under the Sixth Amendment.

I'm sorry, you didn't pick that up.

It's page 42...

Chief Justice Rehnquist: Go ahead.

Mr. Balske: If Mr. Reese followed the formula written by the attorney general, he would fail their test, because the right to ineffective assistance of appellate counsel comes under the Fourteenth Amendment, not the Sixth Amendment.

But the state's attorney generals, who are writing the test for you, can't even get it right.

How is a poor indigent prisoner going to know how to say the right number?

I mean...

Justice Kennedy: Touche.

Unidentified Justice: [Laughter]

Mr. Balske: I... I think, Justice O'Connor...

Justice Scalia: I... I think it's... it's... it's common to, you know, you've heard of the incorporation doctrine, which is that the Fourteenth Amendment incorporates and applies to the states the first ten amendments, or at least portions of the first ten amendments.

Mr. Balske: But...

Justice Scalia: So it is not inaccurate to say that... that it's a Sixth Amendment right, which has been applied to the states via the Fourteenth.

Mr. Balske: I thought when we're talking about appellate counsel, though, the Sixth Amendment doesn't cover it, because the Sixth Amendment doesn't give you the right to effective counsel on your appeal, only at trial.

And the Fourteenth Amendment equal protection and due process are what actually cover them.

So, if... if you're claiming ineffective assistance of appellate, not trial, appellate counsel, it is Fourteenth Amendment, it's not Sixth Amendment.

Justice Breyer: What would happen if the Oregon constitution happened to contain the right in the same number amendment, like the Sixth was... they were both Sixth Amendment.

Then you have to say Sixth Amendment of the Federal Constitution?

Mr. Balske: Well, the... it... the trouble here, the heart...

Justice Breyer: Or is this... is this one of the ones that it doesn't contain it in the Oregon constitution Sixth Amendment so this is one of the ones that, by necessity, must refer to.

Mr. Balske: No.

This isn't one of those, because that's at article I, section 11, it doesn't.

So this isn't the easy case, this is a...

Justice Kennedy: But the... the court of appeals...

Mr. Balske: tougher case.

Justice Kennedy: thought that the only way in which this claim was properly presented was if they adopted, the court of appeals adopted the rule, that the state court is deemed to have read and understood the proceedings in the trial court.

Am I... am I right about...

Mr. Balske: I think they said that and...

Justice Kennedy: that formulation of the rule?

Mr. Balske: I think they said that, and I don't think you have to go that far to find that Mr. Reese fairly presented his claim.

Justice O'Connor: Well, do you defend that as the test?

Mr. Balske: I'm...

Justice O'Connor: It... it's a... do you defend...

Mr. Balske: No.

Justice O'Connor: the Ninth Circuit's...

Mr. Balske: I don't.

Justice O'Connor: articulated test?

Mr. Balske: I do not defend the Ninth Circuit's test.

I only defend the judgment.

Justice Breyer: In your...

Mr. Balske: I only say to you he fairly presented the claim in this case.

Justice Breyer: Right.

In... in your opinion, as a lawyer who, I take it, is involved in these things...

Mr. Balske: Yes.

Justice Breyer: is there really a big problem of differences among the lower circuits... among the lower courts?

To what extent do we have to find a rule?

I take it the rule now is called fair presentation?

Mr. Balske: Correct.

Justice Breyer: And there are dozens of ways it could be done.

And so the court is just like... supposed to look at the individual circumstance, say was it done, was it not done?

Here you think it was done because the whole thing's two pages, they refer to the Federal Constitution in the... in the citation of authorities, and they have no particular, et cetera.

All right.

Now, is there a problem or isn't there a problem among the circuits in applying this fair presentation test?

Mr. Balske: Well, if the... the... there are differences in the circuits, so I can't disagree...

Justice Breyer: Is it... are they real differences in terms of what counts or...

Mr. Balske: Well, I...

Justice Breyer: are they just differences in...

Mr. Balske: I don't think they are in the sense of, although I know this Court likely views the Ninth Circuit as quote, unquote, a liberal circuit of sorts, when you read their opinion here, they were being very conservative.

They're saying Duncan v. Henry applies.

Under Duncan you must state it at every level of the proceedings.

I mean, they...

Chief Justice Rehnquist: But that... that's a Ninth Circuit case, isn't it, the... Duncan against Henry?

Mr. Balske: Yes, it is.

It is.

Chief Justice Rehnquist: It's not a case from this Court?

Mr. Balske: No, I was talking about...

Justice Breyer: But... but the only...

Mr. Balske: they were applying your Duncan decision.

Justice Kennedy: But the only way in which they could sustain their judgment was to adopt this rule of... that the appellate court has the duty, or is presumed to have understood what happened in the trial court.

You seem to agree that your case doesn't have to turn on that.

The Ninth Circuit, I thought, said that the case turned on that proposition.

Otherwise, it was not going to make it.

And... and I just have to... I can't speak for my colleagues...

Mr. Balske: Right.

Justice Kennedy: but the... the petition that you read me at the appendix, where that just cites the Federal constitutional provision and then says ineffective of counsel... ineffective assistance of counsel... does not give the court any clue as to what it's supposed to do...

Mr. Balske: Well...

Justice Kennedy: other than to review a record.

Mr. Balske: Well... sorry.

Justice Kennedy: And... and... and I had thought the exhaustion requirement was designed to give the court some assistance in determining whether or not it showed... should spend more time with the case in order to review the record, in other words, said that counsel had a conflict of interest because of marriage or something.

It would have been... it would have... it would have been triggered... a... a... a more specific review by the district court.

And it just... by the... by the state appellate court... and it just didn't have that information.

Mr. Balske: Well, what the purpose of the exhaustion rule is to give him a fair opportunity to decide it.

And when you're talking about petitions for review, it's a little different because it's not your brief on the merits where they're actually deciding...

Justice Kennedy: But we get thousands of cases around here that just says Fifth Amendment, ineffective assistance of counsel.

That gives us very, very little help.

Mr. Balske: Well...

Justice Kennedy: Sixth Amendment.

Mr. Balske: here... here we're talking about ineffective assistance of counsel.

We're talking about it with an Oregon statute that required the Oregon court to even tell the appellate courts whether it had been decided under the state or the Federal Constitution.

And here they said this was decided under Federal.

And then when he uses ineffective, I know that that's less than satisfying, but in Oregon too, if you look in the state's brief, I think, at page 4, footnote 5, what you're going to find there is Oregon's... the State of Oregon's position on what a inmate means when he says ineffectiveness.

There it says that in applying article I, section 11 of the Oregon constitution, quote, Oregon courts often refer to inadequate assistance of counsel instead of ineffective assistance of counsel, the term usually employed by the state and Federal courts in applying the analogous provision of the Federal Constitution.

So as the Oregon courts are reading the pleadings, the definition we're looking at, ineffective assistance of counsel, the term usually employed by the state and Federal courts.

We're giving, factual parts aside, which aren't with this case at this point, legal only, the Oregon courts were fairly presented with the Federal question because...

Justice Ginsburg: Well, it seems to me that argument that you're making now that inadequate is the buzzword for a state claim, ineffective for a Federal claim, is at least in tension with your argument that... that in... with respect to ineffective assistance of counsel, the state... the content of the state standard and... is identical to the Federal.

So these labels don't mean anything if the content is identical, so how...

Mr. Balske: Right.

Well, I... all I'm, I guess I inartfully stated it.

I... the position I wanted to convey, and I didn't, is that we started out with a clear Federal claim, and when he used ineffective twice more in his appeals, he did nothing at all to dispel anybody of the fact that it was a Federal case.

It started out Federal and he had allegations under state and Federal Constitution.

It got decided Federal and then he said ineffectiveness.

He gave no indication that he was narrowing the case at all.

And a good contrast is another Ninth Circuit en banc case, Peterson, because Peterson raised it just like Mr. Reese initially, under both constitutions.

He raised it again that way in the appellate court.

But when he got to his petition for review, he indicated that, to the Oregon Supreme Court, that he was going on the state constitution, because he only said in his petition for review that this violated article I, section 11 of the Oregon constitution.

That's a contrast, and much... and he, as the Ninth Circuit held, did not exhaust his state remedies, because he didn't give the Oregon Supreme Court the fair opportunity, because what he did was he took their eyes and led them over to the state constitution.

And Mr. Reese didn't do that.

Justice Ginsburg: Well, if you... you say that the Ninth Circuit approach to this was wrong, which... which seems to be anchored in, if it's clear that the court of first instance relied on the Federal ground, that stays with the case all the way up.

You... you reject that, or you say, you... you are asking us to affirm the judgment, not that reasoning.

What is your reasoning?

What is enough?

Mr. Balske: Sure.

My reasoning is that it's fairly presented when a state inmate clearly articulates it under the Federal Constitution, and then continues to appeal that judgment without indicating in any way whatsoever that he's relying on anything but the Federal Constitution.

Justice Ginsburg: But may I...

Then I don't see how that differs from the Ninth Circuit...

Justice O'Connor: That's the Ninth Circuit.

Justice Ginsburg: because you have to start with the court of first instance, and you seem to be saying that the court of first instance relies on a Federal ground that stays with the case.

Mr. Balske: That... I... that's true.

I agree with that portion of it.

I guess maybe I...

Justice Scalia: I thought you said before that you were not defending the... the Ninth Circuit's approach.

Mr. Balske: I...

Justice Scalia: Now you tell me you are.

I thought you were relying upon the statement in the... in the brief to the supreme court that he was relying upon... upon the Federal Constitution.

Mr. Balske: That's correct.

Justice Scalia: And I was going to ask you if you're relying on that now, why didn't you rely on it in your brief in opposition?

The question presented by the state was, 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?

Why... why didn't...

Mr. Balske: I did...

Justice Scalia: you respond to that...

Mr. Balske: I did, but I...

Justice Scalia: by simply saying the question is not presented because, in fact, he did cite a specific provision of the Constitution?

Mr. Balske: I did, but I didn't...

Justice Scalia: I mean, we're wasting our time here if... if you want us to decide whether this brief...

Mr. Balske: It's...

Justice Scalia: you know, contains the... the Sixth Amendment or not.

The question we granted cert on is, does he alert it when he neither... neither cites a specific provision of the Federal Constitution nor cites at least one authority?

I... I mean...

Mr. Balske: I understand.

Justice Scalia: What... we're just spinning our wheels here.

Justice Souter: You... you said you did raise that in the EIO?

Mr. Balske: But, yeah...

Justice Scalia: Where?

Mr. Balske: it's argued in...

Justice Souter: I need to go back to it.

Mr. Balske: It's in section III of my brief.

Justice Scalia: I've just looked at it.

I... I didn't see it.

Mr. Balske: Okay.

Justice Scalia: I didn't see it presented very clearly.

Justice Breyer: It seems to me...

All right.

Anyway, what you're asking is... that's why I started at the beginning.

I thought the question was... I thought what the Ninth Circuit did was cite a case called Lyons, and in Lyons they say you do have to either cite a particular provision of the Federal Constitution or a case that's clearly a Federal case.

And then they held that the brief you pointed out to me did not do that.

Then they said, but anyway, that brief is good enough because in the lower courts or other courts they had cited the Federal Constitution explicitly.

Now on that question, I would think they're wrong, aren't they?

Because, as I started out, you can't expect judges to start going back and filing... looking through all the briefs they filed in the lower courts, or the opinions below.

Mr. Balske: Well, I...

Justice Breyer: That was, I thought, the question.

Mr. Balske: Well...

Justice Breyer: And on that question, do you... what do you want to say?

I mean, if you're...

Mr. Balske: Well, I guess what I want to say is this.

I think... if the rule that I'm... I'm not necessarily espousing a rule, I'm trying to say that my client, Mr. Reese, fairly presented.

But in saying that Mr. Reese fairly presented, I don't think that our approach is going to place a great burden on the courts by any stretch, because all you have to look at is his pleading in the state court that started it, where he says Sixth and Fourteenth Amendment.

Then you just look at his brief in the court of appeals and his petition for review, and the answer is there.

And...

Justice Kennedy: So... so... so now you're... you're... what you... in order to win your case, you're going to have to give us a standard, and your standard is, it seems to me, that state appellate courts are bound to look at the pleadings in the lower courts.

Mr. Balske: I guess you're seeing my focus being back in the state courts, and I'm looking at Federal court.

I'm looking at when the petitioner files his petition and the state steps forward and says failure to exhaust.

Petitioner's counsel then has the burden of coming forward and saying, take a look at what was in the briefs and what was presented, not what was in the minds of the state courts when they looked at them...

Justice Breyer: No, but the exhaustion rule...

Mr. Balske: but what did he present?

Justice Kennedy: depends upon whether or not the state appellate courts had fair notice of the claim.

Mr. Balske: Yes.

Justice Kennedy: And that's... that's what we're trying to discuss here and...

Justice Breyer: That sounds...

Justice Kennedy: and it... and... and the... and the only way you can save your case, in the posture that comes to us, as I see it, is that that state appellate court is bound to look at the pleadings in the... in the court of first instance.

Mr. Balske: Well, what we have here...

Justice Kennedy: And... and that is a rule.

Justice Souter: I mean...

Mr. Balske: Well... well, here's...

Justice Kennedy: you... you... if you're going to save your judgment, we're going to have to do it with a rule.

Mr. Balske: Well, and I think with the rule, here's... here's the caveat to the rule, so to speak, and it's that comity goes both ways.

In other words, we're respecting the state courts have given him the opportunity, but we're also going to respect the state's courts own rules and statutes that they use when they're looking at petitions and appeals.

And here we're looking at Oregon.

When you look at Oregon, we turn the page to Oregon, we have the statute that I read early... earlier, the plain statement, clear statement rule.

So...

Chief Justice Rehnquist: But that just goes to the trial court's judgment, doesn't it?

Mr. Balske: Well, that goes to the... the... specifying the basis of the judgment in the trial court...

Justice Breyer: Yeah.

Mr. Balske: whether it's a state or a Federal issue.

Justice Scalia: Yeah.

Mr. Balske: And in this case, in his written opinion, he does that.

Chief Justice Rehnquist: But how does... how does that bear on the appeal process?

Mr. Balske: And then in the appeal process, I'm... the... the... the reason you have the clear statement rule is so the appellate courts will know what the trial court did, not...

Chief Justice Rehnquist: Well, then, you're really... you really are supporting the Ninth Circuit's judgment, aren't you... opinion?

The... the Supreme Court of Oregon should have looked at the trial court's decision, even though it's a court where the review is discretionary from the court of appeals.

Mr. Balske: The... the court of appeals most certainly would have seen it and the... the Oregon Supreme Court was on notice by his petition, I mean, the petition for review itself...

Justice Breyer: You... you want...

Mr. Balske: is ineffective assistance of counsel.

Justice Scalia: You want to withdraw your... your assurance earlier that you are not defending the... the Ninth Circuit's basis for reaching its result, but just the result?

Mr. Balske: Well, I guess, you know, I didn't think that I needed the Ninth Circuit's and I... I must be confused now, because I think I just...

Justice Scalia: I... I'm certainly confused.

I don't know whether you are.

Mr. Balske: Well, I think I can...

Justice O'Connor: Is... is...

Mr. Balske: I'm sorry.

Justice Souter: I don't think you need the Ninth Circuit if you're saying the following.

Let me tell you what I think you're saying and you tell me...

Mr. Balske: Yeah.

Justice Souter: whether I'm right.

Unidentified Justice: [Laughter]

Justice Souter: At the court of appeals level, we don't need the Ninth Circuit rule because the court of appeals was reviewing a trial court judgment including findings and statement of law and there it was right in the statement of law referred to, Federal.

Number two, we don't need the Ninth Circuit rule when we get to the Oregon Supreme Court because we've got a petition and the petition says Federal, refers specifically to four Federal amendments, doesn't refer to any state court, any state law or any state constitution.

So you don't need the Ninth Circuit rule for that purpose.

Is that what you're saying?

Mr. Balske: That's what I'm saying.

Chief Justice Rehnquist: Okay.

Justice Breyer: Well, then you have the problem...

May I ask you...

Justice Kennedy: of the Ninth Circuit.

Justice Stevens: Yes?

Excuse me, may I ask you another question?

Is... is it your view that there's a difference between the state rule on inadequate assistance of counsel and the Federal rule on the ineffective assistance of counsel?

Mr. Balske: Well, yes, in this sense of... did you want...

Justice Stevens: Well, if there's a difference, would your client not have had the obligation to... to exhaust the state rule as well as the Federal rule?

Because that was a remedy for the basic wrong you're complaining of.

Mr. Balske: I guess I didn't follow your question.

Could I ask you to repeat it?

Justice Stevens: Are inadequate assistance as a matter of state law the same as...

Mr. Balske: Right.

Justice Stevens: ineffective assistance as a matter of Federal law?

Mr. Balske: Well, at the trial level, trial ineffectiveness, they are different clearly.

They have a test that's called inadequate for state counsel.

They call it ineffective under Strickland...

Justice Stevens: It is just a difference in names or a difference in substance?

Mr. Balske: It's a difference in substance when you're talking about trial court ineffectiveness.

In... in our case when we move over...

Chief Justice Rehnquist: I see.

Justice Souter: You're talking about appellate.

Mr. Balske: now we're talking about appellate ineffectiveness.

Justice Breyer: Yeah.

Mr. Balske: They've got one test that was discussed during earlier questions, and what they do is they interchangeably use the words ineffective and inadequate.

They don't use any one term all the time, but there's just one test.

That's Oregon law.

Justice Breyer: Okay.

Justice Scalia: If you...

Mr. Balske, could you cite me the... the portion of your brief in opposition that you think most clearly presented...

Mr. Balske: Yes.

Justice Scalia: the... the issue that...

Mr. Balske: Sure.

Justice Scalia: that you are now relying on at the Supreme Court level to wit that the Federal Constitution was cited in the brief to the Supreme Court?

Mr. Balske: Right.

Chief Justice Rehnquist: Where...

Mr. Balske: Well, I think it will be in... I did it in three parts, and the third part would have been that...

Chief Justice Rehnquist: This is the brief in opposition...

Justice Scalia: The brief in opposition...

Justice Ginsburg: to certiorari.

Justice Scalia: to the petition for cert.

Mr. Balske: Oh, oh, oh, I'm sorry.

I'm not even thinking.

Justice Kennedy: Once I've granted...

Justice Souter: It's orange.

Justice Scalia: on... on this question, it's too late to tell me the question is irrelevant.

Mr. Balske: I'm sorry.

Justice Scalia: I... I like to know it's irrelevant before I vote to grant cert.

Mr. Balske: Right.

I... I, you know, I honestly don't remember what I argued at all in that brief.

I haven't looked at that in preparing for this and I apologize, but I...

Justice Breyer: If... can you tell... tell me, if I were to accept your position about the Ninth Circuit rule, how does it differ from what I wrote in dissent when I thought that we... you... you shouldn't have to go to the supreme court of the state, if you... if you remember?

If you don't remember, that's all right.

Mr. Balske: I mean, I know that...

Justice Breyer: I mean, what's bothering me about it is it sounds like a reasonable position, but it also sounds like a position I agreed with in dissent, which means it isn't the law, the opposite is the law.

Mr. Balske: Well, at... I don't disagree that O'Sullivan says that it's got to be presented to the highest court of the state.

And my position is simply that he did so in this case.

Justice Ginsburg: If there had been an... an objection preserved in the Ninth Circuit that whatever else, this doesn't tell us what the facts were, would not that have been a... a ground for saying you didn't exhaust?

Mr. Balske: That would have been a bigger problem for me than this problem, yes, because although he said, and part of his saying was under the Oregon Balfour procedure when he didn't have a lawyer, he said, my lawyer and I disagreed on what issues to raise.

One thing that Mr. Reese didn't say factually was what those issues were, and that would be my problem if their position were that factually it wasn't clear enough.

Justice Ginsburg: So... so they... they have abandoned an objection one... one would think would be the logical first one, he doesn't have any facts, out the door.

Mr. Balske: Yes, I... that's true.

They did abandon it.

Justice O'Connor: Do we have to ignore that too?

Mr. Balske: I think you should, and I've argued in my brief that you should because they dropped it from the case and abandoned it, and because the only issue presented is the issue of whether or not he fairly presented it.

So I would espouse that, whether you have to or not, obviously your decision.

Justice Ginsburg: But if this... if this Court is going to give any guidance, certainly that should be the... the first one, shouldn't it?

Mr. Balske: Well sure.

The first piece...

Justice Breyer: So, what your case is about...

Mr. Balske: and... and I think that is fair presentation law.

You have to supply sufficient facts and the law upon which you rely.

Here they didn't object to the insufficiency of facts, but the rule wouldn't be any different than it was before under Picard.

If there are no more questions, thank you very much.

Rebuttal of Gen Hardy Myers

Chief Justice Rehnquist: Thank you, Mr. Balske.

General Myers, you have three minutes remaining.

Mr. Myers: Your Honor, so two quick comments or points.

First, this case illustrates the fallacy of any kind of doctrine which says that a appellate court can tell what issues have been chosen to be asserted to it, put before it, by going back and looking at the decision of a... of a lower court.

Here, the trial court in Oregon disposed of one of the Federal inappellate assistance of counsel claims, citing Jones against Barnes, but it had before it state law claims of inappellate... ineffective assistance of counsel, as well as Federal.

The trial court didn't mention the state claims, but they were all dismissed as well by the judgment that was ultimately entered at the trial court level.

So both state and Federal claims were dismissed.

You couldn't tell by looking at the trial court judgment what the... what the prisoner was choosing to actually assert among those dismissed claims at the court of appeals level.

He could as well have been asserting his dismissed state ineffective assistance of counsel claim.

Justice Scalia: General Myers, do you have any response to the... to the new point raised... it was new to me anyway... that... that this in fact, the Federal claim was raised in the petition?

Mr. Myers: No.

Yes, I do, Your Honor.

Justice Scalia: What... what is that?

I'd really like to know that.

Mr. Myers: It... at page 47-48 of the joint appendix, which you may have already been referring to...

Justice Ginsburg: Yes.

Mr. Myers: the petition for review is set forth.

And if you go to the argument portion, Your Honor, which is at the very... second paragraph of the argument portion, I think that's going to be on page 48.

Justice Scalia: Yes.

Mr. Myers: You'll see the last... second sentence of the second paragraph: Moreover, since petitioner asserts he was coerced and threatened by counsel to waive his right to trial by jury, petitioner believes his Fifth, Sixth, and Fourteenth Amendment rights have been

Chief Justice Rehnquist: I see, I see.

Mr. Myers: have been violated.

So... so the ineffective assistance of trial counsel claim was specifically Federalized, if you will, and that's the... that's the only place where those Federal citations appear.

Chief Justice Rehnquist: Okay.

Mr. Myers: Your Honors, again, the... the state of the law in this area, we think, can fairly be described as still disturbed, a term I used earlier, and we very sincerely hope that this Court will use this case both in relation to the Ninth Circuit decision to reaffirm that it is the state petitioner, not the state courts, who have the responsibility to assert... fairly present the claim, and secondly, to go for further... and further clarify specifically what state prisoners must do in order to clearly indicate the Federal source of their claim...

Justice Kennedy: If you prevail, I hope you're not unhappy with what you get, because you're going to have petitions in which there's a huge laundry list of cases.

We have to then qualify that by saying there has to be a fair and concise statement of the legal and the factual basis for the claim.

Mr. Myers: Your Honor, indeed, the fact that Federal... or that the Federal source of the claim is used is not the end of the fair presentation issue, because there's still going to be the ongoing requirement of adequately identifying your substance of your claim, to use the terminology of this Court, the... the legal theory as well as the adequacy of the fact.

Chief Justice Rehnquist: Thank you, General Myers.

The case is submitted.