NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
Go to Federal Manuals Table of Contents - Go to Capital Punishment Table of Contents

Chapter 6: Capital Punishment Handbook: Habeas Corpus Proceedings

        6.3 Section 2254 Review: Habeas Corpus Review Of State Convictions
               6.3.1  Standard For Granting Petitions
                         6.3.1.1 Retroactivity Of 2254(d): General Principles
               6.3.2  Restricted Claims
                         6.3.2.1  No Ineffective Assistance Of Habeas Counsel Claims: 
                                      General Principles
                         6.3.2.2  No State Law Claims: General Principles
                         6.3.2.3  No Fourth Amendment Claims: General Principles
                                      6.3.2.3.1  Limitations On Stone v. Powell: Fundamental 
                                                      Rights: General Principles
                         6.3.2.4  No Claims Of Error In State Post-Conviction Proceedings: 
                                                      General Principles
                         6.3.2.5  No “Freestanding” Actual Innocence Claims: General Principles
               6.3.3  Exhaustion Of State Remedies
                         6.3.3.1  “Full And Fair Presentation” To State Court: General Principles
                         6.3.3.2  New Evidence In Federal Court: General Principles
                         6.3.3.3  State Postcard Denials: General Principles
                         6.3.3.4  Mixed Petitions: General Principles
                         6.3.3.5  Holding Petition In Abeyance Pending Exhaustion: 
                                      General Principles
                         6.3.3.6  Patently Frivolous Claims: General Principles
                         6.3.3.7  Waiver Of Exhaustion By The State: General Principles
                         6.3.3.8  Exceptions To Exhaustion Requirement: No State Remedies, 
                                      Futility, Delay And Unavailability Of State Procedure
               6.3.4  Presumption Of Correctness of State Court Fact Findings
                         6.3.4.1  Findings Of Fact: General Principles
                         6.3.4.2  Questions Of Law: General Principles
                         6.3.4.3  Mixed Questions Of Law And Fact: General Principles
                                      6.3.4.3.1  District Court’s Duty To Review State Record
                         6.3.4.4  Classification of Issues
                                      6.3.4.4.1  Generally
                                      6.3.4.4.2  Jury Determinations: General Principles
                                      6.3.4.4.3  Pre-Trial Publicity: General Principles
                                      6.3.4.4.4  Competence Of Defendant: General Principles
                                      6.3.4.4.5  Right to Counsel: Ineffective Assistance, Conflict 
                                                      Of Interest, And Request For Counsel
                                      6.3.4.4.6  Witness Issues: General Principles
                                      6.3.4.4.7  Voluntariness Of Confessions, Pleas and Waivers
                                      6.3.4.4.8  Preclusive Effect Of Verdict: General Principles
                                      6.3.4.4.9  Harmless Error: General Principles
                                      6.3.4.4.10 Custody For Miranda Purposes: General Principles
                                      6.3.4.4.11 Pre-Trial Identification Procedures: General Principles
                                      6.3.4.4.12 Existence Of Mitigating Circumstances: General Principles
                                      6.3.4.4.13 Shackling Defendant: General Principles
                                      6.3.4.4.14 Plea Agreements: General Principles
              6.3.5  Review Where State Court Did Not Reach Merits of Properly Raised Issue

Federal court jurisdiction to consider habeas corpus petitions filed by state prisoners derives from 28 USC 2254, which provides that a federal court can entertain a state prisoner’s habeas petition if the petitioner alleges his or her custody is in violation of the Constitution or laws or treaties of the United States. Case law has played a large part in defining the scope of this power. To assert a claim for federal habeas relief, a petitioner must raise the correct type of claim and must have exhausted state remedies on that claim. In 1996, the AEDPA substantially modified federal habeas corpus law. See infra § 6.3.1.

28 USC 2254 (2000) providing for habeas relief for state court convictions).

In 1996, the AEDPA created § 2254(d), which sets forth the current standard for granting a federal habeas relief from a state conviction when the claim was adjudicated on the merits in state court. Prior to the AEDPA, federal courts reviewed state decisions de novo, as articulated in Wright v. West, 505 U.S. 277 (1992), and Thompson v. Keohane, 516 U.S. 99 (1995). Section 2254(d) provides: 

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The Supreme Court’s opinion in Williams (Terry) v. Taylor, 529 U.S. 362 (2000), clarified the meaning of “contrary to” and “unreasonable application of” clearly established Federal law, as determined by the Supreme Court in § 2254(d). Although Justice Stevens viewed the new law as a codification of Teague, the Court did not adopt his opinion. Justice O’Connor, writing for the Court, rejected the Fourth Circuit’s interpretation of § 2254(d) and held that the federal court must objectively determine whether the state court’s decision of federal law was erroneous or incorrect.  The Supreme Court reiterated the views expressed in Williams in Bell v. Cone, 535 U.S. 685 (2002), and held that (1) under the “contrary to” clause of § 2254(d)(1), a federal habeas court may issue the writ if the state court applies a rule different from the governing law set forth in Supreme Court cases or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts; and (2) under the “unreasonable application” clause of § 2254(d)(1), the court may grant relief if the state court correctly identifies the governing legal principle from Supreme Court decisions but unreasonably applies it to the facts of the case. The Court held that under the latter clause the application must be objectively unreasonable, which is different from incorrect. Id. at 1850.

In a Ninth Circuit opinion subsequent to Williams, the court in Tran v. Lindsey [also referred to as Van Tran v. Lindsey], 212 F.3d 1143 (9th Cir.), cert. denied, 531 U.S. 944 (2000), adopted a “clear error” test to determine whether a state court decision involved an unreasonable application of federal law. More recently the Supreme Court held in Lockyer v. Andrade, 538 U.S. 63 (2003), that “objectively unreasonable” and “clear error” are not the same standards, and that the “gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75.

Supreme Court:

Rice v. Collins, 126 S. Ct. 969 (2006) (holding that on direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error, (2) under AEDPA, however, a federal habeas court must find the state-court conclusion State court proceeding,” and thus (3) a federal habeas court can only grant a habeas petition if it was unreasonable to credit a prosecutor’s race-neutral explanations for the Batson challenge; also holding that here, where prosecutor struck a young African-American woman and offered as race-neutral explanations for the strike that (1) the juror rolled her eyes in response to a question from the court; (2) that she was young a might be too tolerant of a drug crime; and (3) she was single and lacked ties to the community, federal court improperly substituted its evaluation of the record for that of the state trial court, which, under §2254(d)(2), did not make an unreasonable determination of the facts in light of the evidence presented).

Evans v. Chavis, 126 S. Ct. 846 (2006) (where the Ninth Circuit had treated a decision of the California Supreme Court in denying a state habeas petition without comment or citation as on the merits, the Supreme Court held that if the appearance of the words “on the merits” in a order by the state supreme court denying a petition does not automatically warrant a holding that a filing was timely, the absence of those words could not automatically warrant such a holding; concurring in the judgment, Stevens, J. wrote that the Court should endorse the Ninth Circuit presumption that a ruling on the merits, simpliciter, means that the state court has concluded that a habeas petition was timely).

Mitchell v. Esparza, 540 U.S. 12 (2003) (holding that Sixth Circuit Court of Appeals exceeded limits imposed on federal habeas review under 28 USC 2254(d)(1) in holding that harmless-error review was not available for Eighth Amendment claim that Ohio violated its own sentencing procedures where the indictment charged the petitioner with aggravated murder in the course of committing aggravated robbery, but did not charge him as a “principal offender”; state court’s conclusion, in rejecting an ineffective assistance of counsel claim, that defense counsel’s conduct was harmless in failing to insist on literal compliance with death penalty statute requirement that death penalty could only be imposed for aggravated murder during commission of aggravatedrobbery if defendant was named as principal offender in indictment, was not “contrary to” or an "unreasonable application" of clearly established federal law).

Lockyer v. Andrade, 538 U.S. 63 (2003) (rejecting clear error standard of Tran v. Lindsey [also referred to as Van Tran v. Lindsey]; holding that “objectively unreasonable” and “clear error” are not the same standards, and that the gloss of clear error “fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness”). 

Early v. Packer, 537 U.S. 3 (2003) (per curiam) (recognizing that state-court decision is contrary to clearly established Supreme Court precedents if it “applies a rule that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent” but that avoiding this pitfall does not require citation of Supreme Court cases nor does it “even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them”).

Bell v. Cone, 535 U.S. 685 (2002) (holding that (1) under “contrary to” clause of § 2254(d)(1) federal habeas court may issue writ if the state court applies a rule different from governing law set forth in Supreme Court cases or if it decides case differently than Supreme Court has done on set of materially indistinguishable facts; and (2) under “unreasonable application” clause of § 2254(d)(1) court may grant relief if the state court correctly identifies governing legal principle from Supreme Court decisions but unreasonably applies it to the facts of case; holding that state court correctly identified Strickland principles as governing claim of ineffective assistance of counsel and that there was no merit to contention that state court’s adjudication was contrary to court’s clearly established law).

Penry v. Johnson, 532 U.S. 782 (2001) (finding the clearly established federal law asserted by petitioner (Estelle v. Smith, § 4.2) distinguishable and therefore affirming the denial of § 2254(d)(1) relief on claim; however, finding state appellate court’s conclusion–that the substance of the jury instructions given at petitioner’s second sentencing trial satisfied the Court’s mandate in Penry I–was objectively unreasonable.

But see Thomas, J., dissent, arguing state court’s determination of jury instruction conforms to Penry I and is therefore not objectively unreasonable).

Williams (Terry) v. Taylor, 529 U.S. 362 (2000) (holding that trial counsel’s Strickland violation was both “contrary to” and an “unreasonable application of” federal law under § 2254(d)(1); holding that § 2254(d)(1)’s “contrary to ” and “unreasonable application of ” clauses have independent meaning; holding “unreasonable” standard is an objective inquiry and requires more than a federal judge’s determination that the state court application of federal law was erroneous or incorrect; defining “contrary to,” in the context of a state court’s determination of applicable law, as law being contradictory, diametrically different, opposite in character or nature, mutually opposed to clearly established federal law, or, when a state court arrives at a result different from Supreme Court precedent with a materially indistinguishable set of facts). 

Angelone v. Bennett, 519 U.S. 959 (1996) (Stevens, J., dissenting) (stating that because congressional reform, limiting federal court authority to entertain successive petitions, increases the importance of first petition review, federal courts should give greater, rather than less, scrutiny to death row inmates’ first petitions). 

Thompson v. Keohane, 516 U.S. 99 (1995) (holding, under pre-AEDPA law, that state legal, as opposed to factual, findings are reviewed de novo).

Wright v. West, 505 U.S. 277, 291 (1992) (stating no correctness presumption for state legal, as opposed to factual, decisions; decisions subject to de novo review under pre-AEDPA law).

Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005) (citing Lockyer v. Andrade, in holding that a federal court may not independently review the merits of a state court decision without first applying AEDPA standards, and therefore a federal court may not grant an evidentiary hearing without first determining whether the state court’s decision was an unreasonable determination of the facts).

Blair v. Woodford, 319 F.3d 1087 (9th Cir. 2003) (ordering submission withdrawn in habeas appeal pending issuance of mandate in petitioner’s direct appeal to California Supreme Court where petitioner sought relief on ground that state court’s failure to process his appeal for 13 years constituted denial of his due process rights; holding that remedy of finding due process violation and granting unconditional writ of habeas corpus is not appropriate in absence of showing that delay adversely affected petitioner’s chances to obtain reversal or vacation of his conviction or his sentence, and he could not now make such a showing because his direct appeal had only recently commenced with the filing of his opening brief).

Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001) (holding that where jury readback took place without knowledge and participation of defendants or their counsel, and defendants’ absence could have undermined fairness of proceedings, under AEDPA state court’s denial of habeas petition was unreasonable application of clearly established federal constitutional law; holding that defendants’ absence from readback was properly characterized as trial error, rather than structural error, and was therefore subject to constitutional harmless error review and could not be deemed harmless under factual circumstances; distinguishing La Crosse v. Kernan, below, on basis that in LaCrosse, attorney not only was aware of readback procedure proposed by judge, but attorney was consulted by court and agreed to proposed procedure and stipulated that his client need not be present).

Lockhart v. Terhune, 250 F.3d 1223 (2001) (granting relief pursuant to 28 USC 2254(d), finding actual conflict of interest and finding state court’s application of state law requiring finding of prejudice clearly erroneous; finding petitioner not made aware of the specific ramifications of his waiver and state court’s conclusion to the contrary was unreasonable).

La Crosse v. Kernan, 244 F.3d 702 (9th Cir. 2001) (applying § 2254(d) and denying relief because trial court’s ruling–not allowing petitioner to be present at a jury readback–not contrary to Supreme Court law (since Supreme Court has never ruled on issue), notwithstanding circuit law holding that a defendant does have a Sixth Amendment right to be present at readbacks).

Downs v. Hoyt, 232 F.3d 1031 (9th Cir. 2000) (failing to apply Delgado’s nondeferential test where post conviction appellate court issued no opinion but post conviction trial court issued letter opinion and findings of fact; analyzing district court’s denial of relief under Williams v. Taylor), cert. denied, 532 U.S. 999 (2001).

Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000) (holding that, where the state court does not furnish a basis for its reasoning in a decision, § 2254(d) requires independent federal review to determine whether the state’s decision was contrary to, or involved an unreasonable application of, clearly established federal law; stating that while independent review is not the equivalent of de novo review, review is undertaken through the “objectively reasonable lens ground by Williams; applying Tran v. Lindsey [also referred to as Van Tran v. Lindsey] and holding that independent review must reveal clear error).

Tran v. Lindsey [also referred to as Van Tran v. Lindsey], 212 F.3d 1143 (9th Cir.) (holding that federal court must first determine whether state court erred before determining whether the error involved an unreasonable application of controlling law within the scope of § 2254(d); holding that federal court must reverse a state court’s decision involving an unreasonable application of federal law when independent review results in conclusion that clear error occurred), cert. denied, 531 U.S. 944 (2000), disapproved in Lockyer v. Andrade, 538 U.S. 63, above.

Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000) (declining to apply Ninth Circuit case law–substantially extending U.S. Supreme Court precedent–to post-AEDPA habeas claim).

Furman v. Wood, 190 F.3d 1002 (9th Cir. 1999) (noting that the Ninth Circuit has not to date defined the term “unreasonable application” nor explained the difference between “contrary to” and “unreasonable application of” as used in § 2254(d); stating that the terms reflect the same general requirement that federal courts not disturb state court determinations unless the state has failed to follow Supreme Court law).

Wilson v. Henry, 185 F.3d 986 (9th Cir. 1999) (noting that the Ninth Circuit has not yet clearly delineated how to conduct a § 2254(d) review).

Houston v. Roe, 177 F.3d 901 (9th Cir. 1999) (determining that the Supreme Court need not have addressed a factually identical case; § 2254(d) requires only that the Supreme Court clearly determine the law).

Davis v. Kramer, 167 F.3d 494 (9th Cir. 1999) (holding that the AEDPA’s standard of review provisions “reflect the . . . general requirement that federal courts not disturb state court determinations unless the state court has failed to follow the law as explicated by the Supreme Court”), vacated and remanded on other grounds, 528 U.S. 1133 (2000).

Canales v. Roe, 151 F.3d 1226 (9th Cir. 1998) (holding that, even assuming there was “clearly established” rule of presumed prejudice from untimely filing of notice of appeal by counsel, the facts would not support application of such a rule and relief was thus precluded under the AEDPA).

Jeffries v. Wood, 114 F.3d 1484 (9th Cir.) (finding state supreme court’s decision was based on an unreasonable determination of the facts in light of the evidence presented and its application of the harmless error standard was contrary to “clearly established federal law”; stating that a factual determination is unreasonable if it would not be debatable among reasonable jurists, and that as to more debatable factual determinations, the care exercised by the state court may be important), cert. denied, 522 U.S. 1008 (1997).

Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (holding that when a state court has made no findings of fact, the district court’s duty to ascertain the sufficiency of the evidence by thorough review of the complete state record is unaffected by the AEDPA).

Moore v. Calderon, 108 F.3d 261 (9th Cir.) (stating that § 2254(d) does not allow reversal of state decision merely because of conflict with circuit law but rather only when it is “contrary to” or an “unreasonable application of” a Supreme Court decision; noting, in dicta, that mixed fact/law questions fall under the “unreasonable application” prong of § 2254(d); state’s denial of defendant’s timely request to represent himself was error regardless of AEDPA’s application because denial violated clearly established law as determined by the Supreme Court), cert. denied, 521 U.S. 1111 (1997).

Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996) (concluding that § 2254(d) did not affect the court’s analysis because the relevant law was clearly established by the Supreme Court, whether or not the AEDPA applied).

District Courts in Ninth Circuit:

Shine v. Cambra, No. C 97-1433, 1999 WL 252475 (N.D. Cal. Apr. 26, 1999) (unpublished) (finding state court’s decisions contrary to, or an unreasonable application of, Supreme Court precedent in so far as trial court failed to allow defense counsel to question witness about defendant’s statements and failed to strike witness’s direct testimony once the trial court decided to uphold witness’ assertion of privilege). 

Contreras v. Rice, 5 F. Supp. 2d (C.D. Cal. 1998) (noting the state supreme court’s failure to cite authority or provide written opinion, applying the Supreme Court’s “look through” approach discussed in Ylst and looking to state appellate court’s opinion to assess the state supreme court’s decision and its relation to the application of § 2254(d) to petitioner’s case).

Sampson v. Roe, No. C 97-1343, 1998 WL 209159 (N.D. Cal. April 28, 1998)(unpublished) (noting that the Ninth Circuit has not fully defined “unreasonable application” and concluding that the state court’s decision cannot be considered so clearly incorrect as to merit relief), aff’d, No. 98-16289, 1999 WL 613462 (9th Cir. 1999).

Perez v. Marshall, 946 F. Supp. 1521 (S.D. Cal. 1996) (adopting magistrate’s report and recommendation denying constitutional challenges to § 2254(d) based on Marbury judicial power, due process, and Article 1 suspension of writ; finding that § 2254(d) changes federal habeas review standard by eliminating de novo review of legal and mixed legal-factual claims and replacing it with deferential standard; holding that “clearly established federal law” is law articulated by Supreme Court), aff’d, 121 F.3d 716 (9th Cir. 1997).

Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999) (en banc) (holding that § 2254(d) mandates a two-part inquiry whereby a federal court first inquires whether the state decision was “contrary to” clearly established U.S. Supreme Court law and, if not, then whether the state judgment rests upon an objectively unreasonable application of U.S. Supreme Court law; finding “contrary to” to mean that Supreme Court precedent compelled an outcome contrary to that reached by the state court; applying § 2254(d) and affirming dismissal), cert. denied sub nom. Matteo v. Brennan, 528 U.S. 824 (1999).

Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999) (finding that state court’s decision was not “on the merits” for purposes of the AEDPA and, thus, declining to apply presumption of correctness).

Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (stating that part of reasonableness review under AEDPA “requires federal courts to take into account the state’s care in considering the subject”).

Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.) (holding that circuit court could not review a state court’s application of “clearly established law” when the court does not give a rationale for its adverse determination; in such a case the federal court must “independently ascertain whether the record reveals a violation”), cert. denied, 525 U.S. 1037 (1998).

Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997) (applying new § 2254(d) and concluding that Supreme Court precedent that state transactional immunity statutes violate the compulsory process clause of Sixth Amendment is not “clearly established,” so no § 2254(d) violation).

Lockhart v. Johnson, 104 F.3d 54 (5th Cir.) (applying § 2254(d) and finding no violation of “clearly established” Supreme Court precedent nor unreasonable application of law in state’s use of physical restraints on disruptive defendant and state’s conducting of voir dire outside of defendant’s presence after defendant voluntarily waived right to be present), cert. denied, 525 U.S. 1123 (1997).

Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996) (analyzing § 2254(d) and concluding that state court’s determination regarding trial counsel’s strategy was “clearly an unreasonable application of Strickland to the facts,” despite assumption that § 2254(d)(2) establishes a more deferential standard to federal review of state factual determinations).

McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996) (pre-AEDPA holding that when a federal court does not defer to state findings, it must provide explicit written justification, setting forth which of the seven section 2254(d) factors exist, or explaining why the state’s findings are unsupported by the record pursuant to the eighth factor).

Hogan v. Hanks, 97 F.3d 189 (7th Cir. 1996) (stating that “[b]oth Teague and amended § 2254(d)(1) are designed to ensure that state judgements are not affected by legal rules established or materially expanded after the conviction has become final”).

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (stating that § 2254(d) is “retrenchment from former practice, which allowed federal appellate courts to rely on their own jurisprudence in addition to that of the Supreme Court”; extending the Teague principle by limiting the sources on which a federal court may rely in addressing the application for a writ; not limiting, however, the federal courts’ independent interpretive authority regarding federal questions; a more deferential standard of review of a state court’s application of “clearly established law” may be warranted when the state provides a “thoughtfully reasoned decision”), rev’d on other grounds, 521 U.S. 320 (1997), limited by Williams (Terry) v. Taylor, 529 U.S. 362 (2000).

McCain v. Gramley, 96 F.3d 288 (7th Cir. 1996) (concluding that state court’s determination regarding Batson claim was not contrary to, or an unreasonable application of, clearly established federal law nor was it based on an unreasonable factual determination in light of the evidence presented).

Evans v. McBride, 94 F.3d 1062 (7th Cir. 1996) (distinguishing between circuit “extensions of” as opposed to “glosses on” Supreme Court law in applying § 2254(d)’s “contrary to clearly established federal law as determined by the Supreme Court” standard).

28 USC 2254(d) (2000) (setting standard for granting habeas corpus petitions from state convictions).

Note, Rewriting the Great Writ: Standards of Review for Habeas Corpus Under the New 28 USC 2254, 110 Harv. L. Rev. 1868 (1997) (analyzing language and judicial interpretation of § 2254 and identifying potential problems with some interpretations).

Several courts have addressed the retroactivity of the § 2254(d) standard of review. However, the Supreme Court, in Lindh v. Murphy, 521 U.S. 320 (1997), implicitly overruled decisions retroactively applying § 2254(d) to cases pending at the time the AEDPA was enacted. Moreover, in Moore v. Johnson, 521 U.S. 1115 (1997), the Supreme Court granted certiorari and remanded for reconsideration in light of Lindh the Fifth Circuit’s decision in Moore v. Johnson, 101 F.3d 1069 (5th Cir. 1996), that § 2254(d) applied to habeas cases pending at the time of the AEDPA’s enactment.

Lindh v. Murphy, 521 U.S. 320 (1997) (holding that new provisions of Chapter 153 apply only to cases filed after the AEDPA became effective; reversing the Seventh Circuit’s determination that the AEDPA applies to cases pending at time of enactment).

Moore v. Johnson, 521 U.S. 1115 (1997) (granting certiorari and remanding for reconsideration in light of Lindh, the Fifth Circuit’s decision that § 2254(d) retroactively applies to habeas cases).

In Murray v. Giarratano, 492 U.S. 1 (1989), the Supreme Court held that the Constitution does not require appointment of counsel for indigents seeking postconviction collateral relief from death sentences. Accordingly, there is no Sixth Amendment claim for ineffective assistance of counsel during habeas proceedings.  

In 1996, Congress enacted the AEDPA which specifically codified this rule. The AEDPA added the following subsection to § 2254: “(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” The restriction is similarly stated in § 2261(e) which applies to § 2254 petitions filed under Chapter 154. See supra § 6.2.16.

Murray v. Giarratano, 492 U.S. 1 (1989) (holding that state is not constitutionally required to provide counsel for indigent death row inmates seeking state postconviction relief).

Federal Statutes:

28 USC 2254(i) (2000) (prohibiting ineffective assistance of state or federal collateral postconviction counsel claims in §2254 cases).

In Pulley v. Harris, 465 U.S. 37 (1984), the Supreme Court established that since a federal writ of habeas corpus is proper only where a prisoner is “in custody in violation of the Constitution or laws or treaties of the United States,” a federal court may not issue a writ of habeas corpus based on a perceived error of state law. Federal courts can only vindicate federal rights and therefore cannot consider violations or erroneous applications of state law. In Pulley, the Court noted that some error could potentially be sufficiently egregious that it amounts to a denial of equal protection or due process under the Fourteenth Amendment but rejected Harris’ petition as not constituting such an error.

In Hunt v. Vasquez, 899 F. 2d 878 (9th Cir. 1990), the Ninth Circuit held that petitioners have no federal right to a particular state law regime and, thus, when a federal habeas court redresses a violation of federal law it cannot order a state to apply a particular state law.

Estelle v. McGuire, 502 U.S. 62 (1991) (reversing Ninth Circuit finding that fundamentally unfair trial violated due process; holding instead that admission of challenged evidence and jury instructions did not rise to level of due process violation; “reemphasizing that it is not the province of a federal habeas court to reexamine state court determinations on state law questions”).

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating that “federal habeas corpus relief does not lie for errors of state law”).

Pulley v. Harris, 465 U.S. 37 (1984) (holding that federal court may not issue writ of habeas corpus based on perceived state law error).

Rose v. Hodges, 423 U.S. 19 (1975) (holding that governor’s commutation of petitioners’ death sentences to life imprisonment presented state law question not reviewable by federal habeas corpus).

Park v. California, 202 F.3d 1146 (9th Cir.) (affirming dismissal of claim based on petitioner’s failure to demonstrate a due process violation merely by citing to the Fourteenth Amendment, where issue was improper admission of evidence), cert. denied, 531 U.S. 918 (2000).

Vansickel v. White, 166 F.3d 953 (9th Cir. 1999) (holding that a state’s denial of statutory peremptory challenges can constitute a federal due process violation cognizable in federal habeas proceedings).

Moran v. Godinez, 57 F.3d 690, 698 (9th Cir. 1994) (holding that the denial or misapplication of state procedures resulting in the deprivation of a substantive right will implicate a federally recognized liberty interest).

Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993) (holding that trial court’s failure to comply with state law requiring trial court to weigh each aggravating factor against all of the mitigating factors violated due process and was therefore cognizable in federal habeas proceedings).

Campbell v. Blodgett, 997 F.2d 512 (9th Cir. 1992) (holding petitioner’s complaint, alleging state supreme court’s failure to “fulfill its statutory mandate” regarding independent proportionality review, not sufficiently egregious to establish due process violation, and thus not cognizable on habeas corpus).

Hunt v. Vasquez, 899 F. 2d 878 (9th Cir. 1990) (holding that habeas petitioners have no federal right to application of a particular state law; upon reinstating petitioner’s right to a state court appeal, district court lacked authority to order state court to apply the law that would have been in effect had the appeal been timely).

Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.) (stating that federal courts do not review a state’s interpretation of its death penalty statute unless the interpretation is a subterfuge to avoid federal review of the state’s unconstitutional deprivation of right), cert. denied, 459 U.S. 1055 (1982).

Bates v. Nelson, 485 F.2d 90, 96 (9th Cir. 1973) (holding that governor’s clemency determination is not reviewable in federal habeas proceeding).

A federal court may not consider a § 2254 claim that evidence obtained in violation of the Fourth Amendment should have been excluded at trial where a prisoner had a full opportunity to litigate the claim in state court. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court ruled that when a state has provided a “full and fair opportunity to litigate” a Fourth Amendment claim, federal habeas review is not available. In Stone, the Court reasoned that the exclusionary rule for Fourth Amendment violations is not a personal constitutional right but instead is primarily a judicially created structural remedy designed to safeguard Fourth Amendment rights, generally, through its deterrent effect.

Stone v. Powell, 428 U.S. 465 (1976) (holding that where state has provided opportunity for full and fair litigation of Fourth Amendment claims, federal habeas corpus relief is not available for a claim that evidence obtained in unconstitutional search and seizure was introduced at trial).

Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000) (finding Fourth Amendment issue proper habeas claim because petitioner did not have full and fair opportunity to litigate claim in state court (claim was not established until petitioner’s appeal was pending cert. in the U.S. Supreme Court and California Supreme Court denied claim raised in a postconviction petition because claim not raised on appeal); also finding 48 hour arraignment rule violated but finding suppression of petitioner’s confession to two additional out-of-state murders given after 48 hours expired not inappropriate because confession was voluntary and not harvest of extended prearraignment incarceration; also finding state doctor’s examination of petitioner after petitioner held for more than 48 hour was fruit of poisonous tree and was error to admit at trial, but error was harmless), cert. denied, 534 U.S. 1036 (2001).

Woolery v. Arave, 8 F.3d 1325 (9th Cir. 1993) (holding that, absent a showing that state denied full and fair opportunity to litigate Fourth Amendment claim, Stone rule precludes federal court from enforcing exclusionary rule through habeas corpus even though state failed to raise Stone issue).

See generally:

Philip Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v. Powell, 82 Colum. L. Rev. 1 (1982) (discussing theoretical justification for a limited federal habeas corpus Fourth Amendment review system; presenting conditions under which such review should occur).

Janet B. Jones, Annotation, What Constitutes “An Opportunity for Full and Fair Litigation” in State Court Precluding Habeas Corpus Review under 28 USC 2254 in Federal Court of State Prisoner’s Fourth Amendment Claims, 75 A.L.R. Fed. 9 (1985) (analyzing federal cases addressing state prisoners’ “opportunity for full and fair litigation” of Fourth Amendment claims under Stone).

The Stone restriction on federal habeas jurisdiction does not apply to certain fundamental rights claims that do not share the exclusionary rule’s deterrence function. In Jackson v. Virginia, 443 U.S. 307 (1979), the Court held that Stone does not bar habeas consideration of Fourteenth Amendment due process claims that trial evidence was insufficient to support a conviction because that issue is “central to the basic question of guilt or innocence.” Similarly, in Rose v. Mitchell, 443 U.S. 545 (1979), the Court held that Stone does not foreclose habeas review of an equal protection claim of racial discrimination in the selection of a state grand jury foreman because such a claim implicates the integrity of the judicial process and fails to raise Stone’s federalism concerns.

In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Court held that Stone does not bar Sixth Amendment ineffective assistance of counsel claims even if based on a claim that counsel failed to move to exclude illegally obtained evidence. More recently, in Withrow v. Williams, 507 U.S. 680 (1993), the Court also held that the Stone restriction does not apply to claims that a conviction rests on statements obtained in violation of Miranda because such claims invoke fundamental trial rights, as opposed to exclusionary rule claims, which are “necessarily divorced from the issue of guilt.”

Withrow v. Williams, 507 U.S. 680 (1993) (holding that Stone bar to federal habeas review is not applicable to Miranda claims because Miranda claims involve fundamental trial rights).  

Kimmelman v. Morrison, 477 U.S. 365 (1986) (holding that Stone bar does not apply to Sixth Amendment ineffective assistance claims based on incompetent representation with respect to Fourth Amendment issues).

Vasquez v. Hillery, 474 U.S. 254 (1986) (holding that grand jury discrimination claims are not barred by Stone).

Rose v. Mitchell, 443 U.S. 545 (1979) (holding Stone inapplicable to equal protection claims of racial discrimination in selection of state grand jury foreman).

Jackson v. Virginia, 443 U.S. 307 (1979) (declining to extend Stone to bar habeas consideration of due process claim that trial evidence was insufficient to support conviction).

Kevin J. O’Brien, Comment, Federal Habeas Review of Ineffective Assistance Claims: A Conflict Between Strickland and Stone?, 53 U. Chi. L. Rev. 183 (1986) (analyzing Stone in light of Strickland).

Irene M. Rosenberg, Withrow v. Williams: Reconstitutionalizing Miranda, 30 Hous. L. Rev. 1685 (1993) (analyzing reinterpretation of Miranda in Withrow).

Yale L. Rosenberg, The Supreme Court Reinforces Both Federal Habeas Corpus and Miranda, 29 Crim. L. Bull. 418, 418–19 (1993) (stating that Withrow court “broadened the equitable pursuit of federal habeas courts . . . and managed to elevate the much maligned prophylactic Miranda rule”).

Michael L. Scheier, Note, Miranda Warnings and Habeas Corpus: The Supreme Court’s Erosion of Prisoner’s Fifth Amendment Rights in Duchworth v. Eagan, 59 U. Cin. L. Rev. 261 (1990) (addressing, prior to Withrow, whether Miranda claims from state court should be collaterally reviewed by federal habeas courts).

In Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989), the Ninth Circuit followed other circuits in holding that a federal habeas court may not review a petition alleging errors in the state postconviction review process. In Dickerson v. Walsh, 750 F.2d 150 (1st Cir. 1984), however, the First Circuit held to the contrary.  

Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).

Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).

Kirby v. Dutton, 794 F.2d 245, 247–48 (6th Cir. 1986) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).  

Dickerson v. Walsh, 750 F.2d 150 (1st Cir. 1984) (holding that habeas relief is available for claims of error in state postconviction review proceedings).

Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984) (holding that a federal habeas court may not review claims of error in state postconviction review proceedings).

Newly discovered evidence generally does not provide a basis for federal habeas relief unless it relates to the constitutionality of a petitioner’s conviction. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that a claim of actual innocence based on newly discovered evidence does not provide an independent basis for federal habeas relief. The Court held that the purpose of habeas corpus is to correct constitutional errors and not to reweigh questions of fact. Consequently, a “freestanding” claim of actual innocence, unaccompanied by a claim of constitutional error, is not cognizable by a federal habeas court. The Court stated that such claims should instead be addressed through executive clemency procedures.

The Herrera Court noted, however, that a truly persuasive innocence claim in a capital case would render the petitioner’s execution unconstitutional but did not describe exactly what type of claim would qualify. More recently, however, the Court explained the various levels of proof required in asserting an actual innocence claim. In Schlup v. Delo, 513 U.S. 298 (1995), the Court reemphasized the distinction between a claim of actual innocence as the constitutional violation itself (i.e., despite a trial free of constitutional error) and a claim of actual innocence accompanied by constitutional trial error. The Court stated that in the latter instance the conviction is entitled to more respect than one that is the product of an error-free trial. The Schlup Court went on to explain that a claim of innocence alone–as in Herrera–would require evidence that would “unquestionably establish innocence,” but a claim of innocence accompanied by constitutional violation claim requires only sufficient doubt about the petitioner’s guilt to justify the conclusion that execution would be a miscarriage of justice.

In Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998), the Ninth Circuit emphasized that a petitioner need not prove that he is actually innocent in order to pass through the Schlup gateway. The petitioner need only present evidence of innocence that undermines confidence in the outcome of the trial. As the Carriger court stated, “the claim is procedural, not substantive.”

The Supreme Court has granted certiorari in House v. Bell, 125 S. Ct. 2991 (2005) (mem.) with the following as a question presented: “What constitutes a ‘truly persuasive showing of actual innocence’ pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?”

House v. Bell, 125 S. Ct. 2991 (2005) (mem.) (granting certiorari with the following questions presented: “1. Did the majority below err in applying this Court’s decision in Schlup v.Delo to hold that Petitioner’s compelling new evidence, though presenting at the very least a colorable claim of actual innocence, was as a matter of law insufficient to excuse his failure to present that evidence before the state courts – merely because he had failed to negate each and every item of circumstantial evidence that had been offered against him at the original trial? 2. What constitutes a ‘truly persuasive showing of actual innocence’ pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?”)

Schlup v. Delo, 513 U.S. 298 (1995) (distinguishing Herrera stand-alone actual innocence claim from Schlup actual innocence accompanied by constitutional error claim; holding that actual innocence standard in latter case is whether constitutional violation probably resulted in the conviction of one who is “actually innocent;” Herrera claim fails without new facts that “unquestionably establish innocence”).

Herrera v. Collins, 506 U.S. 390 (1993) (holding that actual innocence claims based on newly discovered evidence do not provide basis for federal habeas relief absent an independent constitutional violation; assuming, without deciding, that truly persuasive actual innocence demonstration in a capital case would render execution of defendant unconstitutional and would warrant federal habeas relief if no state avenue were open for such a claim).

Townsend v. Sain, 372 U.S. 293 (1963) (stating that newly discovered evidence relating to state prisoner’s guilt is not a ground for federal habeas relief; such evidence is relevant only if it bears on the constitutionality of petitioner’s detention), overruled in part, 504 U.S. 1 (1992).

Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002) (concluding that petitioner in noncapital case, who alleged that his conviction rested on perjured testimony of an accomplice to murders and that there was a confrontation clause violation because the witness’ preliminary hearing testimony was introduced when the witness refused to testify at trial, might fall within narrow class of cases implicating fundamental miscarriage of justice; noting that if petitioner passed through Schlup gateway, question to be answered was whether that had consequence of overriding AEDPA’s statute of limitation, a question yet to be decided by either Ninth Circuit or U.S. Supreme Court; remanding to district court for determination of whether petitioner could pass through actual innocence gateway).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (emphasizing that a petitioner need not prove that he is actually innocent in order to pass through the Schlup gateway; petitioner need only present evidence of innocence that undermines confidence in the outcome of the trial; “the claim is procedural, not substantive”), cert. denied, 523 U.S. 1133 (1998).

Coley v. Gonzales, 55 F.3d 1385, 1387 (9th Cir. 1995) (holding, in non-capital case, that Herrera precludes relief based solely on petitioner’s actual innocence of the crime).

Swan v. Peterson, 6 F.3d 1373 (9th Cir. 1993) (holding that newly discovered evidence is a ground for federal habeas corpus relief only when it bears on the constitutionality of an applicant’s conviction and would probably produce an acquittal).

Clark v. Lewis, 1 F.3d 814, 821 (9th Cir. 1993) (implying that, in a capital case, Herrera forecloses habeas relief based solely on petitioner’s actual innocence of death penalty).

Susan Bandes, Simple Murder: A Comment on the Legality of Executing the Innocent, 44 Buff. L. Rev. 501 (1996) (arguing that execution of innocent person violates Eighth and Fourteenth Amendments).

Kathleen C. Boyd, Note, The Paradox of Actual Innocence in Federal Habeas Corpus After Herrera v. Collins, 72 N.C. L. Rev. 479 (1994) (reviewing Herrera and analyzing the resulting confusion surrounding federal habeas innocence claims).

Greg Bylinsky, Recent Development: Herrera v. Collins: A New Innocence Principle?, 11 Harv. Blackletter J. 191 (1994) (arguing that Herrera majority establishes principle that an actual innocence claim can be basis for avoiding death sentence; criticizing Court’s failure to specify showing necessary to establish such right).

James G. Clessuras, Schlup v. Delo: Actual Innocence as Mere Gatekeeper, 86 J. Crim. L. & Criminology 1305 (1996) (arguing that Schlup should have answered question of whether execution of an innocent person is unconstitutional).

Kris T. Daniel, Sawyer v. Whitley, The Deadly Game of Procedures in Death Penalty Cases, 61 UMKC L. Rev. 599 (1993) (analyzing impact of Sawyer’s restrictive rule on availability of habeas relief for innocence claims; reviewing impact on Missouri habeas law).

Vernon E. Googe III, Herrera v. Collins–Federal Habeas Corpus Review and Claims of Actual Innocence, 27 Ga. L. Rev. 971 (1993) (focusing on Herrera and analyzing federal court’s dilemma in habeas cases alleging innocence).

Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 Buff. L. Rev. 469 (1996) (arguing that nature of capital cases multiplies likelihood of error and addressing special factors that produce error in capital cases).

Kelli Hinson, Comment, Post Conviction Determination of Innocence for Death Row Inmates, 48 SMU L. Rev. 231 (1994) (critiquing actual innocence claims; detailing and analyzing adequacy of procedures in place for attack on conviction).

Jill Hanson Reinmuth, When Actual Innocence is Irrelevant: Federal Habeas Relief for State Prisoners After Herrera v. Collins, 69 Wash. L. Rev. 279 (1994) (analyzing role of innocence in habeas corpus jurisprudence and summarizing Herrera).

Robert C. Stacy II, Note, Schlup v. Delo: The Result of Curbing Unlimited Jurisdiction by Limiting Discretion, 74 N.C. L. Rev. 897 (1996) (focusing on miscarriage of justice exception to procedural default, and Schlup standard, and predicting future problems in application of Schlup because of inconsistencies in Supreme Court habeas jurisprudence).

Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303 (1993) (analyzing Herrera and Supreme Court’s new “innocence-focus” in habeas cases).

J. Thomas Sullivan, “Reforming” Federal Habeas Corpus: The Cost to Federalism; The Burden to Defense Counsel; And The Loss of Innocence, 61 UMKC L. Rev. 291 (1992) (arguing that Herrera leaves law unclear, retreats from Court’s earlier emphasis on innocence, and allows states to preclude judicial review of constitutional violations). 

James J. Turocy, Recent Decision, Schlup v. Delo, 34 Duq. L. Rev. 373 (1996) (summarizing Schlup).

Traditionally, as a matter of comity, not jurisdiction, a federal court would not consider a habeas corpus petition until the petitioner exhausted available state remedies with respect to each claim. In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court explained that the exhaustion doctrine is designed to protect the state courts’ role in the enforcement of federal law and prevent the disruption of state judicial proceedings. The federal statute providing for habeas relief from state custody, 28 USC 2254, provides that such relief is not available unless the applicant “exhausted the remedies available in the courts of the state.” The exhaustion requirement is satisfied where the federal claim’s substance is “fairly presented” to the highest state court, and that court disposes of the claim on the merits.  

In Granberry v. Greer, 481 U.S. 129 (1987), the Supreme Court created an exception to the exhaustion requirement. The Court held that if a state fails to raise exhaustion at the district court level, whether inadvertently or otherwise, the appellate court should determine whether the interests of comity, federalism, and justice are better served by addressing the merits forthwith or by first requiring a series of  additional state and district court proceedings. If it is perfectly clear that the petition does not raise even a colorable federal claim, no interest is served by requiring exhaustion. The Supreme Court specifically noted that exhaustion is not an absolute bar whenever raised and that the failure to raise it as a defense does not amount to an absolute waiver by the state. Instead, federal courts should take the “middle course” described above in evaluating such situations.

In Plunkett v. Johnson, 828 F.2d 954 (2d Cir. 1987), the Second Circuit extended Granberry to an exhaustion waiver in district court. In Ybarra v. Sumner, 678 F. Supp. 1480 (D. Nev. 1988), the District of Nevada questioned the Second Circuit’s approach. The Ybarra court reasoned that the application of Granberry at the district court level entails different considerations than at the appellate level. For instance, less time is wasted if the district court requires exhaustion.

In 1996, the AEDPA amended § 2254 to specifically allow a federal court to deny an unexhausted habeas corpus petition on the merits. Section 2254(b) provides:  

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

In Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005), cert. denied, 2006 WL 386448 (U.S. Feb. 21, 2006), the Ninth Circuit adopted the Granberry standard in determining when it is appropriate to deny an unexhausted claim on the merits under 28 USC 2254(b)(2) and thus held that a federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim.

The AEDPA also created 28 USC 2264(a), which applies when a state “opts-in” to the special capital chapter by meeting the chapter’s requirements. If a state “opts-in,” then the alternative review standard of § 2264(a) for unexhausted claims applies.  See supra § 6.2.16.

Coleman v. Thompson, 501 U.S. 722, 731 (1991) (stating long-held rule that petition should be dismissed where petitioner has not exhausted available state remedies).  

Castille v. Peoples, 489 U.S. 346, 349 (1989) (stating that petition should be dismissed where state remedies have not been exhausted).

Granberry v. Greer, 481 U.S. 129 (1987) (remanding for further proceedings because, due to state’s failure to raise exhaustion defense, court did not determine whether interests of justice would be better served by addressing merits or requiring additional state proceedings before doing so).

Rose v. Lundy, 455 U.S. 509, 518 (1982) (stating that exhaustion doctrine furthers federalism and comity by protecting state courts’ role in enforcement of federal law, and by preventing disruption of state judicial proceedings).

Duckworth v. Serrano, 454 U.S. 1 (1981) (per curiam) (reversing ruling that “clear violation of petitioner’s rights” entitles petitioner to relief without exhaustion; exhaustion requirement can be ignored “only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief”).

Picard v. Connor, 404 U.S. 270 (1971) (holding that petitioner must fairly present federal claims to state courts before presentation to federal courts).

Ex Parte Royall, 117 U.S. 241, 250-51 (1866) (describing comity nature of exhaustion doctrine).

Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005) (holding that a federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim), cert. denied, 2006 WL 386448 (U.S. Feb. 21, 2006).

Brown v. Maass, 11 F.3d 914 (9th Cir. 1993) (applying Granberry and remanding case to district court where state failed to assert exhaustion defense; no exceptional circumstances prevented state from raising defense; comity and federalism interests not better served by requiring state supreme court to address claim’s merits before federal court).

Taylor v. Kincheloe, 920 F.2d 599, 602 n.1 (9th Cir. 1990) (noting that although a mixed petition normally must be dismissed under Rose, reaching merits best serves administration of justice where state failed to raise exhaustion and issues are primarily issues of law).

O’Bremski v. Maass, 915 F.2d 418 (9th Cir. 1990) (holding that where state failed to raise exhaustion, petitioner raised no colorable federal claims, and there were no unresolved factual questions, judicial efficiency requires petition’s dismissal without first requiring exhaustion).

Toomey v. Bunnell, 898 F.2d 741, 744 (9th Cir.) (holding that where state failed to raise exhaustion, administration of justice better served by reaching merits), cert. denied, 498 U.S. 960 (1990).

Ames v. Endell, 856 F.2d 1441, 1444 (9th Cir. 1988) (setting forth Granbury review standard for reviewing unexhausted claims and state waiver).

Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (stating that exhaustion requires “fair presentation” to highest state court).

Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983) (holding that, while state appeal is pending, petitioner cannot seek federal habeas review of state’s decision regarding appointment of counsel).

Batchelor v. Cupp, 693 F.2d 859 (9th Cir. 1982) (indicating that district and appellate court may raise exhaustion sua sponte).

Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981) (holding that state court must issue ruling on claim’s merits prior to federal court consideration).

Harris v. Superior Ct., 500 F.2d 1124, 1126-27 (9th Cir. 1974) (en banc) (stating that exhaustion is a matter of comity, not jurisdiction).

Poland v. Stewart, 41 F. Supp. 2d 1037 (D. Ariz. 1999) (dismissing petitioner’s Ford claim without prejudice to allow petitioner to assert and exhaust the claim in state court).

Ybarra v. Sumner, 678 F. Supp. 1480 (D. Nev. 1988) (questioning Granberry’s application at district level; even if applicable, exhaustion was necessary in instant case because state court had no opportunity to consider a substantial constitutional lawquestion).

Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69 (1st Cir. 2002) (holding that district court abused its discretion in dismissing, rather than staying, habeas petition containing only fully exhausted claims because of pendency of state proceedings on another, unexhausted claim; also holding that district court is not required to immediately adjudicate fully exhausted petition in these circumstances, particularly where pending state claim may be outcome determinative, but that compelling reason must be present before dismissal may be used in lieu of stay, given risk that habeas petitioner may run afoul of AEDPA’s limitations period if habeas petition is not promptly refiled at conclusion of state proceedings).

Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997) (discussing the relationship between the AEDPA and prior Supreme Court precedent regarding exhaustion), cert. denied, 532 U.S. 919 (2001).

McWilliams v. State of Colorado, 121 F.3d 573 (10th Cir. 1997) (adopting the view “espoused by every circuit that has considered this issue” that refiling after state exhaustion does not qualify as a second or successive petition).

In re Gasery, 116 F.3d 1051 (5th Cir. 1997) (holding that where petitioner’s original petition was dismissed for lack of exhaustion, petitioner need not seek leave from the court of appeals to refile following exhaustion).

Hoxsie v. Kerby, 108 F.3d 1239 (10th Cir.) (noting that § 2254(b)(2), alone, does not determine when a court should dismiss a petition on merits instead of requiring exhaustion; reading statute in conjunction with Granberry and concluding that court should dismiss when “convinced petition has no merit” to avoid needless state court litigation), cert. denied, 522 U.S. 844 (1997).

Anderson v. Groose, 106 F.3d 242 (8th Cir. 1997) (1997) (holding that “arguable factual commonality” existed between state appellate argument that trial court preclusion of certain testimony prevented effective assistance and argument that trial counsel was ineffective, thus allowing federal court to reach merits).

Hatch v. State of Oklahoma, 92 F.3d 1012 (10th Cir. 1996) (holding that exhaustion is not a prerequisite to appellate court consideration of application for leave to file a second or successive habeas petition but is instead an issue for the district court to consider once leave is granted).

Davis v. Dugger, 829 F.2d 1513 (11th Cir. 1987) (holding that it was error to dismiss habeas petition for lack of exhaustion before the state either set out exhaustion defense or waived it).

Plunkett v. Johnson, 828 F.2d 954 (2d Cir. 1987) (holding that Granberry applies to district court proceeding; since petitioner presented no colorable federal claims, district court should have dismissed on basis that exhaustion patently unnecessary).

Kelly v. Keane, No. 96 Civ. 1742, 1996 WL 640892, at *2 n.1 (S.D.N.Y. Nov. 4, 1996) (declining to deny petition on merits under § 2254(b)(2) notwithstanding failure to exhaust because AEDPA does not apply retroactively to habeas petitions in noncapital cases).

28 USC 2254(b) (2000) (setting forth federal court exhaustion requirements and providing for denial of habeas application without exhaustion).

Matthew L. Anderson, Note, Requiring Unwanted Habeas Corpus Petitions to State Supreme Courts for Exhaustion Purposes: Too Exhausting, 79 Minn. L. Rev. 1197 (1995) (proposing new flexible exhaustion doctrine where state court review is discretionary rather than of right).

David B. Franks, Federal Court Discretion and the Exhaustion Doctrine: Granberry v. Greer, 26 Crim. L. Bull. 210 (1990) (discussing how Granberry refined exhaustion doctrine and “streamlined” habeas corpus review).

Jan Neuenschwander, Supreme Court Review: Habeas Corpus–Much Ado About Very Little: The Total Exhaustion Rule: Rose v. Lundy, 73 J. Crim. L. 1641 (1982) (examining the bases of disagreement among Rose opinions regarding problem of piecemeal habeas corpus litigation and arguing that Court’s solution–total exhaustion rule–fails to solve problem).

In Picard v. Connor, 404 U.S. 270 (1971), the Supreme Court stated that a federal claim is “fairly presented if the petitioner describes the operative facts and legal theories on which he or she bases the claim.” A state prisoner ordinarily does not “fairly present” a federal claim to a state court if that court must read beyond a petition, a brief, or similar papers to find material that will alert it to the presence of a federal claim in order to find material, such as a lower court opinion, that does so. Baldwin v. Reese, 541 U.S. 27 (2004). A petitioner must fairly present the claim to the state’s highest court in order to satisfy the “full presentation” requirement of 28 USC 2254. In O’Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court held that claims must be presented in the state court of last resort even when review in that court is discretionary.

Dye v. Hofbauer, 126 S. Ct. 5 (2005) (per curiam) (holding that the failure of a state appellate court to mention a federal claim does not mean that the claim was not presented to it, and that whether the exhaustion requirement has been satisfied cannot turn upon whether the state court chose to ignore in its opinion a federal constitutional claim squarely raised in the petitioner’s brief).

Baldwin v. Reese, 541 U.S. 27 (2004) (holding that a federal claim is not “fairly presented” to a state court if that court must read beyond a petition, a brief, or similar papers to find material that will alert it to the presence of a federal claim in order to find material, such as a lower court opinion, that does so; rejecting contention that petition nonetheless fairly presented federal ineffective assistance claim because “ineffective” is a term of art in Oregon that refers only to federal law claims since petitioner failed to demonstrate that state law uses “ineffective assistance” as referring only to federal law rather than a similar state law claim).

O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (holding that to satisfy the exhaustion requirement, a state prisoner must present his claims in a petition to the state court of last resort even when review in that court is discretionary).

Duncan v. Henry, 513 U.S. 364 (1995) (reversing the Ninth Circuit and holding there was no fair presentation–and thus no exhaustion–where petitioner failed to raise federal constitutional challenge to evidence in state court; mere similarity of claims is insufficient to exhaust state remedies).

Castille v. Peoples, 489 U.S. 346 (1989) (holding fair presentation requirement not satisfied by first-time presentation of claim to state appellate court under state procedure that permits review “only when there are special and important reasons therefor”).

Vasquez v. Hillery, 474 U.S. 254, 257 (1986) (stating that exhaustion requirement is satisfied once federal claim has been “fairly presented” to state’s highest court).  

Anderson v. Harless, 459 U.S. 4 (1982) (holding that mere presentation of facts necessary to support a federal claim, or presentation of state claim similar to federal claim, is insufficient; to exhaust, petitioner must “fairly present” the “substance” of federal claim).

Smith v. Digmon, 434 U.S. 332, 333 (1978) (per curiam) (holding that when claim is squarely raised in state court, it is exhausted despite state court’s failure to mention the claim in its opinion).

Picard v. Connor, 404 U.S. 270 (1971) (holding “fair presentation” requires state court must have opportunity to apply controlling legal principles to the facts bearing upon the claim).

Wilwording v. Swenson, 404 U.S. 249, 249–50 (1971) (per curiam) (noting that, although 28 USC 2254(c)’s language could be read to foreclose habeas review by requiring a state prisoner to invoke any possible avenue of state review, the Supreme Court has never interpreted the exhaustion requirement in such a restrictive fashion).  

Fay v. Noia, 372 U.S. 391 (1963) (holding that exhaustion doctrine does not include U.S. Supreme Court proceedings).

Brown v. Allen, 344 U.S. 443, 448–49 n.3 (1953) (examining § 2254(c)’s language that petitioner has not exhausted so long as there is a right to raise the claim “by any available state procedure”; holding that once state court rules on claim, request for state collateral relief based on same evidence and issues decided by direct review is not necessary).

Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003) (en banc) (in a noncapital habeas case, rejecting any suggestion in Lyons v. Crawford and Gatlin v. Madding, both below, that for purposes of exhaustion, counseled and pro se filings in state court must be read the same way; holding that petitioner did not fairly present his federal ineffective assistance of counsel claim to the Oregon Supreme Court because on the face of his petition for review in that court, he expressly limited his claim to state constitutional law; also holding that even though petitioner presented federal claim to Oregon Court of Appeals, Oregon Rule of Appellate Procedure 9.20, which allows the Oregon Supreme Court to decide all issues properly presented to the Oregon Court of Appeals was not sufficient to alert the supreme court that petitioner was seeking review of the federal issue where the petition for review did not refer to petitioner’s appellate brief and did not refer to federal law, and court of appeals’ opinion did not specifically address federal claim; joining the Second, Third, Sixth, Seventh, and Eighth Circuits in holding that for purposes of exhaustion, citation to a state case analyzing federal constitutional issue serves the same purpose as citation to a federal case analyzing such an issue).

Lyons v. Crawford, 247 F.3d 904 (9th Cir. 2000) (declining to apply a more liberal test to determine whether claim exhausted in state court for petitioners who acted pro se in their state postconviction proceeding; all petitioners must show an explicit federal basis for their state court claims).

Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (per curiam) (holding petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state law grounds), cert. denied, 529 U.S. 1009 (2000).

Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (affirming district court’s finding that pro se petitioner did not “fairly present” federal claim to the state supreme court where he failed to explicitly identify the federal legal basis for his claim), cert. denied, 52 U.S. 1087 (2000).

Keating v. Hood, 133 F.3d 1240 (9th Cir. 1997) (holding that petitioner did not fairly present, and thus did not exhaust, his federal constitutional claim in state court; dismissing petition).

Reutter v. Crandel, 109 F.3d 575 (9th Cir.) (holding that exhaustion requirement may be met by inclusion of issue in the prayer of the state supreme court petition), cert. denied, 522 U.S. 851 (1997).

Johnson v. Zenon, 88 F.3d 828 (9th Cir. 1996) (holding state remedies not exhausted by assertion of evidentiary error in state court that is “essentially the same” as claim raised in federal petition).

Jennison v. Goldsmith, 940 F.2d 1308 (9th Cir. 1991) (holding that defendant must seek discretionary review in state supreme court, as well as direct review in intermediate appellate court, to exhaust state law remedies).

McNeeley v. Arave, 842 F.2d 230 (9th Cir. 1988) (holding that even though petitioner had originally filed in state supreme court, which assigned case to court of appeals, petitioner’s failure to return to supreme court for review of appellate court decision constituted failure to exhaust).

Campbell v. Kincheloe, 829 F.2d 1453, 1455 n.1 (9th Cir. 1987) (holding that issues presented to state court by way of a motion for stay are exhausted if the state court ruled on the merits).

Turner v. Compoy, 827 F.2d 526, 528–29 (9th Cir. 1987) (holding that petitioner’s failure to choose and proceed per statutorily mandated state court route renders claims unexhausted).

Lindquist v. Gardner, 770 F.2d 876, 878 (9th Cir. 1985) (holding that, except in extraordinary circumstances, adherence to Idaho’s Uniform Postconviction Sentencing Act is a required step in a state prisoner’s postconviction remedies).

Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983) (holding that petitioner must present state court claim through proper procedures in order to satisfy fair opportunity requirement).

Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979) (holding that, to satisfy exhaustion requirement, a claim must be presented to highest state court).

Aldridge v. Dugger, 925 F.2d 1320 (11th Cir. 1990) (holding that petitioner presented claim’s substance to state courts and thereby fulfilled exhaustion requirement; presentation of additional facts in support of claim in federal court is not precluded).

In Vasquez v. Hillery, 474 U.S. 254 (1986), the Supreme Court indicated that where new evidence supporting a federal claim fundamentally alters that claim, the claim becomes unexhausted.

Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding that supplemental evidence supporting unconstitutional grand jury composition claim did not circumvent petitioner’s obligation to exhaust where evidence did not fundamentally alter the claim considered by the state courts).

Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988) (holding that court cannot consider new, unexhausted evidence that places claim in a significantly different posture).

Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988) (per curiam) (holding that new evidence in a federal habeas proceeding that “substantially improves” petitioner’s claim renders the claim unexhausted; expert’s studies using modern sound equipment rendered petitioner’s claim, that interrogating officers ignored his requests for an attorney, unexhausted).

Miller v. Estelle, 677 F.2d 1080, 1083–84 (5th Cir. 1982) (holding that new factual allegations, cumulative to those presented in state court, do not require exhaustion).

When a state denies a habeas claim without citation or comment, known as a “postcard” denial, the decision is deemed to be on the merits for exhaustion purposes if the state has a longstanding practice of exercising original habeas jurisdiction.  

Ylst v. Nunnemaker, 501 U.S. 797 (1991) (reversing the Ninth Circuit and ruling that where one reasoned state judgment rejects a federal claim, later unexplained orders upholding that judgment or rejecting the claim are presumed to rest upon the same ground).

Lewis v. Borg, 879 F.2d 697, 698 (9th Cir. 1989) (holding that state supreme court’s denial of habeas claim without citation or comment constitutes a decision on the merits).

Tacho v. Martinez, 862 F.2d 1376, 1378–79 (9th Cir. 1988) (holding that when a state appellate court denied habeas petition solely on procedural grounds and state supreme court issued postcard denial, a federal court should not assume the state supreme court ignored procedural rules and passed solely on the merits).

Dickey v. Lewis, 859 F.2d 1365, 1368 (9th Cir. 1988) (holding that where state trial court expressly ruled only on merits in postconviction review, and state supreme court denied petition without explanation, a federal court will presume the state court decision was on the merits).

McQuown v. McCartney, 795 F.2d 807, 808–10 (9th Cir. 1986) (holding that when state appellate court ruled on procedural grounds in postconviction proceeding, federal court will not presume that state supreme court’s postcard order upon review is on the merits).

Sweet v. Cupp, 640 F.2d 233, 237 (9th Cir. 1981) (presuming that state supreme court’s postcard denial is on procedural grounds where state does not have a longstanding practice of exercising original habeas jurisdiction).

Harris v. Superior Ct., 500 F.2d 1124, 1128–29 (9th Cir. 1974) (en banc) (deeming that state supreme court’s postcard habeas denial, lacking comment or citation, is a decision on the merits for exhaustion purposes).

In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that a federal court must dismiss entirely a “mixed” petition containing both exhausted and unexhausted claims. However, a petitioner with mixed claims must be given the opportunity to amend the mixed petition to present only exhausted claims. James v. Giles, 221 F.3d 1074 (9th Cir. 2000). The required dismissal under Rose is without prejudice, so the habeas petitioner may return to federal court after state exhaustion. However, post-AEDPA petitioners still must protect themselves against the statute of limitations. See § 6.3.3.5 infra and §§ 6.2.1, 6.2.4 supra.

Pliler v. Ford, 542 U.S. 225 (2004) (in a noncapital case under the AEDPA in which a pro se petitioner had timely filed mixed habeas petitions, the petitions were dismissed without prejudice, petitioner returned to state court to exhaust remaining claims, and the petition was then dismissed in federal court as time-barred, holding that the failure of the district court to have given the petitioner two specific warnings regarding the stay-and-abeyance procedure before dismissing the mixed petitions did not make the dismissal improper; stating that because the dismissals were not improper, the Supreme Court need not address the second question presented, whether respondent's subsequent untimely petitions related back to his “improperly dismissed” initial petitions).

Rose v. Lundy, 455 U.S. 509 (1982) (holding that federal court must dismiss a habeas petition that contains a mix of exhausted and unexhausted claims; providing option of amending petition to delete unexhausted claims rather than suffer dismissal).

Strickland v. Washington, 466 U.S. 668, 684 (1984) (stating that exhaustion rule requiring dismissal of mixed petitions “though to be strictly enforced, is not jurisdictional”).

James v. Giles, 221 F.3d 1074 (9th Cir. 2000) (finding petitioner has right to delete unexhausted claims from mixed petition in lieu of suffering dismissal).  

Matthews v. Evatt, 105 F.3d 907 (9th Cir.) (stating that when petition includes both exhausted and unexhausted claims, district court must dismiss entire petition), cert. denied 522 U.S. 833 (1997).

Phillips v. Vasquez, 56 F.3d 1030, 1034–35 (9th Cir. 1995) (recognizing that “[i]n Rose, the Supreme Court held that a petition containing both exhausted and unexhausted claims must be dismissed”).

Kethley v. Berge, 14 F. Supp. 2d 1077 (E.D. Wis. 1998) (dismissing mixed petition without prejudice and allowing petitioner to retain original filing date to avoid the AEDPA’s statute of limitations).

Williams v. Vaughn, 3 F. Supp. 2d 567 (E.D. Pa.) (holding that, to eliminate any risk of bar from the AEDPA’s statute of limitations, amended capital petition filed after the AEPDA’s enactment and dismissed without prejudice as mixed would “relate back” to the original pre-AEDPA petition pursuant to Fed. R. Civ. P. 15(c)), motion denied, No. Civ. A. 95-7977, 1998 WL 238466 (E.D. Pa. May 8, 1998).

Mark J. Ryan, Note, Rose v. Lundy: The Supreme Court Adopts the Total Exhaustion Rule for Review of Mixed Habeas Corpus Petitions, 1984 Wis. L. Rev. 859 (1984) (analyzing Rose and recommending that federal courts reject the plurality’s expanded abuse-of-the-writ standard in order to protect petitioner’s interest in swift habeas review).

Gary A. Sultz, Note, Federal Habeas Corpus: The Exhaustion Doctrine and Mixed Petitions–Rose v. Lundy and Exhaustion Under the Illinois Post Conviction Remedies, 1983 U. Ill. L. Rev. 515 (1983) (examining implementation of exhaustion doctrine in context of mixed petition case and criticizing Rose decision).

In Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988), the Ninth Circuit stated that when a petitioner does not exhaust state remedies before filing a federal habeas petition, the district court may hold the federal petition in abeyance, issue a stay of execution, and allow the petitioner an opportunity to exhaust state remedies.  

In Calderon v. United States Dist. Ct. for the E. Dist. of Cal. (Gordon), 107 F.3d 756 (9th Cir. 1997), the Ninth Circuit specified that Neuschafer does not apply to “mixed” petitions. However, in Calderon v. United States Dist. Ct. for the N. Dist. of Cal. (Taylor), 134 F.3d 981 (9th Cir.), cert. denied, 525 U.S. 920 (1998), the Ninth Circuit held that the district court had authority to allow petitioner to amend his petition to delete unexhausted claims from a mixed petition and then hold the amended, fully exhausted petition in abeyance subject to the further amendment of reincorporating the deleted claims after state litigation.

In Rhines v. Weber, 125 S. Ct. 1528 (2005), a noncapital habeas case, the Supreme Court held that the AEDPA does not deprive district courts of the authority to issue stays where a stay would be a proper exercise of discretion. However, the Court held, stay and abeyance of a mixed petition to allow a petitioner to present the unexhausted claims to the state court in the first instance and then to return to federal court for review of the perfected petition is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust the claims first in state court. Id. at 1535. The Court added that even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant a stay when the unexhausted claims are plainly meritless. Id. The Court said that the district court’s discretion in structuring the stay is limited by the timeliness concerns reflected in the AEDPA and a mixed petition should not be stayed indefinitely. Id. The Court concluded that if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant a stay at all. Id. 

If AEDPA’s statute of limitations is implicated, petitioners must “relate back” an amended petition to its initial filing date. See § 6.2.4 supra.

Rhines v. Weber, 125 S. Ct. 1528 (2005) (holding in a noncapital habeas case that stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust the claims first in state court; stating that if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner’s right to obtain federal relief).

Pliler v. Ford, 542 U. S. 225 (2004) (in a noncapital case under AEDPA in which a pro se petitioner had timely filed mixed habeas petitions, the petitions were dismissed without prejudice, petitioner returned to state court to exhaust remaining claims, and the petition was then dismissed in federal court as time-barred, holding that the failure of the district court to have given petitioner the following two specific warnings regarding the stay-and-abeyance procedure before dismissing the mixed petitions did not make the dismissal improper: (1) that the court could consider his stay motions only if he opted to amend the petitions and dismiss unexhausted claims, and (2) that his federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions “without prejudice” and return to state court to exhaust all of his claims; stating that because the dismissals were not improper, the Supreme Court need not address the second question presented, whether respondent's subsequent untimely petitions related back to his “improperly dismissed” initial petitions).

In re Blodgett, 502 U.S. 236 (1992) (reprimanding the Ninth Circuit for delay in considering petitioner’s claim where petition was held in abeyance, and execution stayed, pending exhaustion).

Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005) (holding that pursuant to Rhines v. Weber, a district court has discretion, under limited circumstances, to stay a mixed petition to allow petitioner to present his unexhausted claims to the state court in the first instance and then to return to federal court; noting that these limited circumstances are those in which there was good cause for petitioner’s failure to exhaust his claims first in state court, the panel remanded for application of Rhines; since it was not considered by the noncapital habeas petitioner or the district court, the panel did not consider the continuing propriety of the three-step stay-and-abeyance procedure approved in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)).

Kelly v. Small, 315 F.3d 1063 (9th Cir.) (holding in noncapital case that district court must consider alternative of staying the petition after dismissal of unexhausted claims, in order to permit petitioner to exhaust those claims and then add them by amendment to his stayed petition; also holding that exercise of discretion is particularly appropriate when outright dismissal will render it unlikely or impossible for petitioner to return to federal court within AEDPA’s one-year limitation period; directing that if district court stays federal proceedings while petitioner exhausts dismissed claims, district court may require petitioner to file new state petition within 30 days), cert. denied, 538 U.S. 1042 (2003).

Calderon v. United States Dist. Ct. for the N. Dist. of Cal. (Taylor), 134 F.3d 981 (9th Cir.) (holding that the district court had authority to allow amendment to delete unexhausted claims from mixed petition and hold the amended, fully exhausted petition in abeyance subject to further amendment reincorporating the deleted claims after state litigation), cert. denied, 525 U.S. 920 (1998).

Reutter v. Crandel, 109 F.3d 575 (9th Cir.) (ruling that a mixed petition requires dismissal), cert. denied, 522 U.S. 851 (1997).

Calderon v. United States Dist. Ct. for the E. Dist. of Cal. (Gordon), 107 F.3d 756 (9th Cir.) (distinguishing Neuschafer, and finding that, under Rose, holding petition in abeyance is error where federal habeas petition contains unexhausted claims; dismissal is required), cert. denied, 522 U.S. 907 (1997).

Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997) (holding that district court did not err in dismissing, rather than staying, death row inmate’s mixed petition; Supreme Court and circuit precedent compel dismissal; distinguishing Fetterly as involving first habeas petition containing only exhausted claims, and distinguishing Neuschafer as dicta), cert. denied, 519 U.S. 1102 (1997).

James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994) (stating that petitioner may strike unexhausted claim and resubmit petition to district court).

Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993) (holding that, in light of petitioner’s diligence in discovery of new claim and attempt to raise all claims in a single habeas petition, district court abused its discretion in denying stay of federal proceedings while petitioner exhausted state remedies).

Roman v. Estelle, 917 F.2d 1505 (9th Cir. 1990) (ruling that, where only one claim in habeas petition is exhausted, petitioner should have opportunity to amend petition to include only the exhausted claim).

Ostrosky v. State of Alaska, 913 F.2d 590, n.9 (9th Cir. 1990) (noting that petitioner amended petition to delete unexhausted claim).

Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988) (stating that petitioners who submit mixed petitions should have option of either resubmitting petitions without unexhausted claims, or exhausting unexhausted claims in state court; court may accept resubmitted petition with only exhausted claims nunc pro tunc to date of original filing).

Neuschafer v. Whitley, 860 F.2d 1470, 1472 n.1 (9th Cir. 1988) (suggesting that when a petitioner has not exhausted before filing federal habeas petition, district court may hold federal petition in abeyance, issue a stay of execution, and allow petitioner an opportunity to exhaust).

Ashmus v. Calderon, 977 F. Supp. 987 (N.D. Cal. 1997) (finding that district court could exercise its discretion to hold exhausted petition in abeyance while petitioner exhausted additional claims).

Caro v. Vasquez, 789 F. Supp. 315 (N.D. Cal. 1992) (vacating stay of execution where petitioner failed to timely file state habeas petition in proper court).

Rogers v. Whitley, 701 F. Supp. 757, 759 (D. Nev. 1988) (stating that if petitioner chooses to return to state court, district court will hold petition in abeyance rather than dismiss so that court can enter a stay of execution if necessary).

Other Circuits:

Christy v. Horn, 115 F.3d 201 (3rd Cir. 1997) (disallowing the holding in abeyance of mixed petitions).

Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996) (holding that district court has no authority to hold mixed petition in abeyance or maintain stay of execution pending exhaustion and that proper procedure is to dismiss the petition and lift the federal stay), cert. denied, 519 U.S. 1153 (1997).

Thompson v. Wainwright, 714 F.2d 1495 (11th Cir. 1983) (holding that district court may continue considering exhausted claims at petitioner’s request pending petitioner’s presentation of unexhausted claims to state court).

Arrango v. Wainwright, 716 F.2d 1353 (11th Cir. 1983) (remanding case, on appeal from habeas denial where defendant was pursuing separate issues in state court, for district court to hold in abeyance until state claims are exhausted and merged with proper federal court claims; on rehearing district court can apply abuse of writ doctrine if it determines that defendant is delaying).

In his concurrence in Rose v. Lundy, 455 U.S. 509, 525 (1982), Justice Blackmun noted that requiring state exhaustion of patently frivolous claims would not serve the principles of comity underlying the exhaustion doctrine. Following this reasoning, the Ninth Circuit held, in Clark v. Ricketts, 958 F.2d 851 (9th Cir.), cert. denied, 506 U.S. 838 (1992), that a federal court need not send a petition back to state court to exhaust a patently frivolous claim.

Rhines v. Weber, 125 S. Ct. 1528 (2005) (holding in a noncapital habeas case that the district court would abuse its discretion if it were to grant a stay when the unexhausted claims are plainly meritless).

Rose v. Lundy, 455 U.S. 509, 525 (1982) (Blackmun, J., concurring) (noting that requiring exhaustion of patently frivolous claim does not demonstrate respect for state courts).

Clark v. Ricketts, 958 F.2d 851 (9th Cir.) (holding petitioner need not return to state court to exhaust claims so insubstantial as to be frivolous because serves no comity purpose and would only delay petitioner’s return to federal court), cert. denied, 506 U.S. 838 (1992).

Gutierrez v. Griggs, 695 F.2d 1195, 1197–98 (9th Cir. 1983) (holding that petitioner’s meritless claims, failing to allege deprivation of a federal right, may be dismissed without exhaustion because exhaustion would not serve comity purposes).

Since the exhaustion doctrine is not jurisdictional, a state may waive the exhaustion requirement. The Ninth Circuit and other circuits have held that a state’s failure to raise exhaustion at the district court level impliedly waives the issue on appeal. However, the AEDPA amended § 2254 to prohibit implied waivers of exhaustion. Section 2254(b)(3) provides: “A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”

Granberry v. Greer, 481 U.S. 129, 134 (1987) (stating that when the state fails to raise exhaustion, it is “appropriate for the court of appeals to take a fresh look at the issue”).

Paradis v. Arave, 130 F.3d 385 (9th Cir. 1997) (holding that state waived exhaustion by failing to advise the district and circuit courts whether claims were exhausted, and that comity, federalism, and finality are not served by insisting on exhaustion).

28 USC 2254(b)(3) (2000) (requiring express waiver of exhaustion requirement by state). 

Lawrence S. Hirch, Note, State Waiver of the Exhaustion Requirement in Habeas Corpus Cases, 52 Geo. Wash. L. Rev. 419 (1984) (reviewing state exhaustion waiver issues).

Section § 2254(b)(1) of Title 28, United States Code, excuses a petitioner from the exhaustion requirement if there is an absence of available state corrective process or if it would be ineffective to protect the rights of the applicant. In Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995), the Ninth Circuit held that an extraordinary state court delay in making a final sentencing decision renders the state corrective process “ineffective” within the meaning of § 2254(b). Such circumstances entitle the petitioner to bring a habeas petition regarding the constitutionality of the conviction despite the fact that the state has not made a final sentencing decision.

O’Sullivan v. Boerckel, 526 U.S.838 (1999) (resolving circuit conflict by stating that state court’s discretion to review claims in state petition does not make state procedure unavailable for purposes of establishing exception to exhaustion doctrine).

Duckworth v. Serrano, 454 U.S. 1 (1981) (per curiam) (refusing to recognize exhaustion exception for clear constitutional violation because it would not promote judicial economy).

Edelbacher v. Calderon, 160 F.3d 582 (9th Cir. 1998) (distinguishing Phillips and finding no extraordinary delay where: (1) retrial of petitioner’s penalty phase was ongoing, (2) there was no assignment of the necessary capital or non-capital status, (3) there were no unusual circumstances suggesting that “no end was in sight” for state proceedings, and (4) the delay at issue was not attributable to ineffective state process but to the extended proceedings related to the guilt issue; affirming dismissal of petition while state proceedings are pending).

Hamilton v. Calderon, 134 F.3d 938, 939 (9th Cir. 1998) (holding that Phillips does not apply absent “extreme delay” by state court).

Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995) (holding that where state’s decision on defendant’s final sentence is extraordinarily delayed, petitioner may bring federal habeas challenge to conviction; petitioner’s right to reasonably prompt conviction review outweighs judicial interest in deference to exhaustion).

Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir. 1993) (criticizing futility doctrine; stating that there are indications that the Supreme Court may make an exception to exhaustion in actual innocence cases).

Beam v. Paskett, 966 F.2d 1563 (9th Cir. 1992) (declining to default petitioner’s challenge to state’s “utter disregard” for aggravating factor despite petitioner’s failure to raise it before state supreme court where state court recently resolved the issue adversely to petitioner), vacated on other grounds, 507 U.S. 463 (1993).

Kim v. Villalobos, 799 F.2d 1317, 1321 (9th Cir. 1986) (holding that if state procedural requirements consistently prevent a fairly presented claim from being heard on the merits, exhaustion is excused; state court twice denied petitioner’s “fairly presented” claim for lack of particularity).

Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981) (adopting futility doctrine that petitioner may be excused from exhausting state remedies if highest state court has recently addressed the issue and resolved it adversely to petitioner and there are no intervening U.S. Supreme Court decisions on point or other indications state court would depart from its prior decision).

Story v. Kindt, 26 F.3d 402 (3d Cir. 1994) (holding exhaustion requirement excused because of inordinate nine-year delay in state postconviction collateral proceedings).  

Deters v. Collins, 985 F.2d 789 (5th Cir. 1993) (declining to apply exhaustion doctrine where state system inordinately and unjustifiably delays review of petitioner’s claims thereby infringing on due process rights).

Hollis v. Davis, 912 F.2d 1343 (11th Cir. 1990) (holding that because state court failed to act on inmate’s three previous pro se petitions and did not appoint a lawyer, further resort to state courts was futile and exhaustion requirement satisfied).

Prior to the AEDPA, 28 USC 2254 required federal habeas courts to presume the correctness of state court factual findings–whether trial, appellate, or state postconviction. For the presumption to apply, former § 2254(d) required that a state court of competent jurisdiction make the findings in writing after a hearing on the merits. Former § 2254(d) provided seven enumerated exceptions to the application of the presumption and additionally prohibited application if the factual determination lacked “fair support in the record.” In Sumner v. Mata, 449 U.S. 539 (1981), the Supreme Court held that federal habeas courts must explicitly apply § 2254(d) and state in the opinion their reasoning for refusing to apply the presumption to any state court factual findings.

In 1996, Congress enacted the AEDPA which repealed former § 2254(d) and created § 2254(e) with new presumption of correctness language. Section 2254(e)(1) provides as follows:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Burden v. Zant, 498 U.S. 433 (1991) (holding that a federal court must presume correctness of a state court’s factual findings or state reasons why presumption of correctness is not supported).

Parker v. Dugger, 498 U.S. 308 (1991) (holding that a state appellate court’s resolution of an ambiguity in a state trial court statement is a finding of fact entitled to presumption of correctness under former § 2254(d) unless not “fairly supported by the record”; concluding in instant case that state appellate court’s finding that state trial court found no evidence of non-statutory mitigating factors was not “fairly supported by the record” and therefore should not be presumed correct ).

Marshall v. Lonberger, 459 U.S. 422 (1983) (holding that a federal court may not substitute its own judgment for a state court’s determination regarding credibility of witnesses who appeared before state court; concluding that state court’s implicit credibility findings provided “fair support in the record” for state court’s factual determination).

Sumner v. Mata, 455 U.S. 591 (1982) (holding that, although presumption of correctness does not apply to ultimate resolution of mixed law-fact questions, a federal court must apply statutory presumption to the facts underlying a mixed question or must explain why the presumption is inapplicable).

Sumner v. Mata, 449 U.S. 539 (1981) (holding that a federal habeas court must make clear that it applied the § 2254(d) presumption of correctness to state court findings and must explain its reasons for applying any statutory exceptions to presumption; holding that presumption of correctness is equally applicable to state appellate court findings of fact; stating that “hearing on the merits” under former § 2254(d) requires only that petitioner and state be parties and that state court make written findings).

Tolbert v. Gomez, 190 F.3d 985 (9th Cir. 1999) (applying on remand the deferential standard of review as set forth by the en banc court in Tolbert v. Page; holding that the pre-AEDPA § 2254(d) “presumption of correctness” applies to state court’s determination of whether a criminal defendant established a prima facie case of prosecutorial discrimination in the exercise of peremptory challenges; affirming the state court’s judgment of conviction).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (declining to presume correct the state court’s finding that state’s star witness’s post-trial confession was not credible where the confession was the only time witness was not speaking under a grant of immunity), cert. denied, 523 U.S. 1133 (1998).

Gallego v. McDaniel, 124 F.3d 1065, 1069 (9th Cir. 1997) (court must defer to state court factual findings unless based on an unreasonable determination in light of the evidence presented), cert. denied, 524 U.S. 917, and cert. denied, 524 U.S. 922 (1998).

Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) (granting less deference to state court decision where state did not make findings of fact).

Langford v. Day, 110 F.3d 1380 (9th Cir. 1996) (finding that state’s factual determinations regarding counsel’s alleged failure to advise defendant of meritorious pretrial arguments were entitled to presumption of correctness).

Burks v. Borg, 27 F.3d 1424 (9th Cir. 1994) (deferring to state court finding that trial court’s ruling on prosecutor bias in exercising peremptory challenges warranted deference where ruling turned on an evaluation of prosecutor’s credibility).

Palmer v. Estelle, 985 F.2d 456 (9th Cir.) (stating that, where record is ambiguous, state appellate court’s findings of fact are deemed “fairly supported by the record” within the meaning of former § 2254(d)(8)), cert. denied, 509 U.S. 928 (1993).

Hawkins v. Risley, 984 F.2d 321 (9th Cir. 1993) (stating that state habeas court’s factual findings are presumed correct under former § 2254(d) unless petitioner establishes that state hearing was inadequate).

Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990) (holding that former § 2254(d)’s “written findings” requirement does not demand infinite detail and clarity and can be satisfied by findings implicit in state court’s actions).

Oxborrow v. Eikenberry, 877 F.2d 1395 (9th Cir. 1989) (holding that state court’s reasonable inferences drawn from evidence are presumed correct under former § 2254(d)).

Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir. 1989) (considering “convincing evidence” standard interchangeable with “clear and convincing evidence” standard in non-habeas case).

Ruff v. Kincheloe, 843 F.2d 1240, 1242 (9th Cir. 1988) (holding that Chaney limits Austad’s holding–that there is no duty for court to obtain record sua sponte–to factual determinations only).

Neuschafer v. McKay, 807 F.2d 839 (9th Cir. 1987) (holding that presumption of correctness applies to state appellate court factual determinations; federal court must defer to state appellate reading of record on appeal just as it must defer to state trial court’s factual findings).

Chaney v. Lewis, 801 F.2d 1191 (9th Cir. 1986) (holding that, with respect to purely factual issues, district court is under no duty to obtain and review state trial record sua sponte because petitioner must overcome presumption of correctness).

Austad v. Risley, 761 F.2d 1348, 1351 (9th Cir.) (en banc) (holding that district court has no duty to obtain record sua sponte where petitioner has not claimed an inability to produce record), cert. denied, 474 U.S. 856 (1985).

Nelson v. McCarthy, 637 F.2d 1291 (9th Cir. 1980) (considering “convincing evidence” standard same as “clear and convincing evidence” standard in non-habeas case).

Federal Statutes:

28 USC 2254(e)(1) (2000) (articulating presumption of correctness standard).

Andrew A. Jones, Note, Keeney v. Tamayo-Reyes and Federal Habeas Corpus Evidentiary Hearings: Has the Court Deliberately Bypassed § 2254(d)?, 1994 Wis. L. Rev. 171 (1994) (summarizing and analyzing Tamayo-Reyes and focusing on difficulty it poses for enforcement of § 2254(d) presumption of correctness of state factual findings).

John Greene, Note, Sumner v. Mata: Muddying the Waters of Federal Habeas Court Deference to State Court Findings, 1983 Wis. L. Rev. 751 (1983) (examining the Supreme Court’s reasoning in Mata and exploring its possible implications for future federal habeas corpus reviews of state convictions).

State court resolutions of purely legal questions are not entitled to a presumption of correctness under former § 2254(d). Under pre-AEDPA law, a federal habeas corpus court reviewed legal questions de novo. The current version of § 2254(d), enacted with the AEDPA in 1996, creates a new standard of review for state legal decisions. See supra § 6.3.

Townsend v. Sain, 372 U.S. 293 (1963) (holding that federal courts should defer to state court findings of fact made after a full and fair hearing but may not defer to state findings of law; “issues of fact” do not include resolutions of mixed questions of law and fact), overruled in part, 504 U.S. 1 (1992).

Chaney v. Lewis, 801 F.2d 1191 (9th Cir. 1986) (holding that former § 2254(d) presumption of correctness applies only to state court factual determinations and does not extend to state decisions regarding purely legal questions or mixed law-fact questions).

Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986) (stating that federal habeas courts must defer to state court factual findings but not to state determinations of purely legal questions or mixed questions of law and fact).

Under former § 2254(d), a state court’s resolutions of mixed questions of law and fact were also not entitled to a presumption of correctness. A federal habeas court would review the state determinations de novo. It should be noted that, in Sumner v. Mata, 455 U.S. 591 (1982), the Supreme Court held that a state court’s determinations of the facts underlying a mixed question are presumed correct under former § 2254(d). In Wright v. West, 505 U.S. 277 (1992), the Supreme Court discussed the appropriate standard for a federal habeas court reviewing state court resolutions of mixed questions. Four justices argued that de novo was well established and that there was no reason to change it. Three justices indicated doubt that de novo was clearly established and suggested that deferential review might be more appropriate. Ultimately, the seven justices agreed that resolving the standard of review question was not essential to the case’s disposition. Two justices did not reach the standard of review issue. 

With the enactment of the AEDPA, § 2254(d) was changed to create a new standard of review for state legal decisions. See supra § 6.3.1.

Thompson v. Keohane, 516 U.S. 99 (1995) (reversing the Ninth Circuit and holding that state court ruling that a suspect was not “in custody” for Miranda warning purposes was mixed question of law and fact).

Wright v. West, 505 U.S. 277 (1992) (declining to adopt a deferential standard of review of state court determinations of mixed questions of law and fact).

Sumner v. Mata, 455 U.S. 591 (1982) (noting that state court’s mixed question resolutions are not entitled to a presumption of correctness; stating that, in deciding mixed questions, “the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard. But the question of facts that underlie this ultimate conclusion are governed by the statutory presumption”).

Cuyler v. Sullivan, 446 U.S. 335 (1980) (stating that state court resolutions of mixed questions are “open to review on collateral attack”).

Chaney v. Lewis, 801 F.2d 1191 (9th Cir. 1986) (holding that former § 2254(d) presumption of correctness applies only to state court findings of fact and does not extend to state court decisions regarding purely legal questions or mixed questions of law and fact, both of which are reviewed de novo).

Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986) (stating that federal habeas courts must defer to state court findings of fact but not to state court resolutions of purely legal questions or mixed questions of law and fact).

Case law interpreting former § 2254(d) established that since a presumption of correctness attaches to state factual findings, the burden of providing the district court with relevant portions of the state record or showing an inability to do so is on the petitioner. In Chaney v. Lewis, 801 F.2d 1191 (9th Cir. 1986), the Ninth Circuit held that a district court has no obligation to obtain and review the state court record when disposing of purely factual questions. Claims raising questions of law or mixed questions of law and fact, however, do impose on the district court a sua sponte duty to obtain and review all relevant portions of the state record.

Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir. 1989) (remanding to district court for review of state record and determination whether evidentiary hearing is required to analyze whether shackling defendant during trial violated due process–a mixed question of law and fact).

Ruff v. Kincheloe, 843 F.2d 1240, 1243 n.5 (9th Cir. 1988) (holding that district court has duty to review the entire state court record to determine whether a constitutional error is harmless).

Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987) (holding that absent specific findings and conclusions, appellate court cannot be sure that the district court conducted independent state record review).

Chaney v. Lewis, 801 F.2d 1191 (9th Cir. 1986) (holding that where habeas claim raises mixed questions of law and fact, district court has a sua sponte duty to obtain and review relevant portions of state record, unlike questions of fact which impose no such duty).

Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir. 1986) (holding that where district court denies petition without evidentiary hearing, record on appeal must show that district court independently reviewed all relevant portions of petitioner’s claims).

Rhinehart v. Gunn, 598 F.2d 557, 558 (9th Cir. 1979) (holding that appellate court cannot affirm a district court’s dismissal of petition unless record shows that district court reviewed all relevant portions of state record).

Miller v. Fenton, 474 U.S. 104 (1985) (stating that an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question; discussing the considerations involved in labeling an issue “factual,” “legal,” or “mixed”).

In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court held that determinations as to individual juror bias, see supra § 2.6.2, in both trial and capital sentencing juries, are factual questions entitled to the presumption of correctness. The Ninth Circuit additionally held, in Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991), that the presumption applies to determinations as to the entire jury’s impartiality.

However, in Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987), the Ninth Circuit held that while jury misconduct is a factual inquiry, the determination as to whether the misconduct was prejudicial is a mixed question of law and fact.

Greene v. Georgia, 519 U.S. 145 (1996) (holding that Witt standard, whereby federal courts accord presumption of correctness to state court’s juror bias findings, does not control as standard for state appellate court review of trial court’s jury selection rulings).

Wainwright v. Witt, 469 U.S. 412 (1985) (holding that state court’s decision to excuse capital sentencing juror for cause under Witherspoon is a finding of fact subject to the presumption of correctness under § 2254(d)).

Patton v. Yount, 467 U.S. 1025 (1984) (finding that impartiality of individual jurors is a question of fact ).

Rushen v. Spain, 464 U.S. 114 (1983) (holding that substance and effect of ex parte communication between judge and juror, on juror’s impartiality is fact question; ultimate question whether error was harmless is question of law; state court’s failure to contemporaneously record finding does not deprive it of “fair support in the record”).

Dyer v. Calderon, 151 F.3d 970 (9th Cir.) (determining that state court’s finding that juror was impartial was not entitled to presumption of correctness), cert. denied, 535 U.S. 1033 (1998).

Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991) (holding that state court’s determination that the jury was impartial is a finding of historical fact treated as presumptively correct).

Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990) (affording presumption of correctness to state court’s finding that no juror misconduct occurred).

Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987) (holding that state court conclusion that juror’s misconduct was not prejudicial is mixed question of law and fact not entitled to presumption).

Austad v. Risley, 761 F.2d 1348 (9th Cir.) (en banc) (holding that determination of juror’s bias is factual and entitled to presumption of correctness), cert. denied, 474 U.S. 856 (1985).

Elise E. Walthall, Constitutional Law–The Practical and Procedural Implications of Jury Misconduct in the Third Circuit, 39 Vill. L. Rev. 1005 (1994) (discussing common factors in jury misconduct cases and addressing Third Circuit’s treatment of such cases).

The question of whether pretrial publicity prejudiced the jury is a factual question accorded the presumption of correctness.

State court determinations regarding a defendant’s competence to stand trial and to waive rights are accorded the former § 2254(d) presumption of correctness. However, in Miller v. Stewart, 231 F.3d 1248 (9th Cir. 2000), the court declined to defer to a state court’s factual findings of competency that were issued two years prior.

Demosthenes v. Baal, 495 U.S. 731 (1990) (stating that state court’s determination regarding defendant’s competency is entitled to presumption of correctness).

Maggio v. Fulford, 462 U.S. 112 (1983) (applying presumption of correctness to state court competency determination).

Miller v. Stewart, 231 F.3d 1248 (9th Cir.) (declining to defer to state court determination of defendant’s Faretta right to self-representation to determine, two years later, whether federal habeas petitioner is competent to forgo federal appeals and “volunteer” to be executed), stay vacated sub nom Stewart v. Miller ex rel. Jones, 531 U.S. 986 (2000).

Brewer v. Lewis, 989 F.2d 1021 (9th Cir. 1993) (holding that state court’s conclusion regarding defendant’s competence is entitled to presumption of correctness if “fairly supported by the record”).

Evans v. Raines, 800 F.2d 884 (9th Cir. 1986) (holding that state court’s determinations of defendant’s competency to stand trial and waive counsel are entitled to presumption of correctness, although they may be mixed questions of law and fact).

Austad v. Risley, 761 F.2d 1348 (9th Cir.) (en banc) (holding that issue of fitness to stand trial is factual determination accorded presumption of correctness), cert. denied, 474 U.S. 856 (1985).

Conflict of interest and counsel competence issues are mixed questions of law and fact and thus do not come within the presumption of correctness afforded state court findings of fact. Whether defendant’s statements constitute a request for counsel, however, is a legal question.

Strickland v. Washington, 466 U.S. 668 (1984) (holding that both performance and prejudice components of ineffectiveness inquiry are mixed questions of law and fact).  

Cuyler v. Sullivan, 446 U.S. 335 (1980) (concluding that whether counsel undertook multiple representation is mixed question of law and fact).

Robinson v. Borg, 918 F.2d 1387 (9th Cir. 1990) (holding that while state court’s determination as to what was said during an interrogation is a factual finding entitled to presumption of correctness, whether defendant’s words constituted a request for counsel is a legal determination subject to de novo review).

Adamson v. Ricketts, 758 F.2d 441 (9th Cir. 1985) (holding that whether counsel’s error was harmless is mixed question), rev’d on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), and rev’d on other grounds, 483 U.S. 1 (1987).

Whether a witness testified under a grant of immunity is a fact question entitled to the presumption of correctness. Questions as to a witness’ constitutional unavailability, however, are not entitled to the presumption.

Burden v. Zant, 498 U.S. 433 (1991) (holding that state court finding that witness testified under grant of immunity is entitled to presumption of correctness).

The voluntariness of a defendant’s confession, plea, or waiver of rights is a legal question. The Ninth Circuit held, however, that a state court’s decision whether a waiver was knowing and intelligent is a factual question entitled to a presumption of correctness.

Arizona v. Fulminante, 499 U.S. 279 (1991) (holding that voluntariness of defendant’s confession is a legal question requiring independent federal court determination).  

Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991) (en banc) (holding that voluntariness of confession and determination of whether police coerced confession are reviewed de novo; voluntariness of Miranda waiver is reviewed de novo, while determination of whether Miranda waiver was knowing and intelligent is entitled to presumption of correctness).

Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986) (holding that voluntariness of guilty plea is question of law ).

Schiro v. Farley, 510 U.S. 222 (1994) (holding that the preclusive effect of a jury verdict is a question of federal law subject to de novo habeas review).

Whether a constitutional error is harmless is a legal question, but the underlying factual determinations are accorded the presumption of correctness.

Lawson v. Borg, 60 F.3d 608, 612–13 (9th Cir. 1995) (determining that state’s harmless error conclusion was not a finding of fact entitled to presumption of correctness). 

Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988) (holding that state court’s harmless error determination was a mixed question of law and fact subject to de novo review). 

McKenzie v. Risley, 842 F.2d 1525 (9th Cir.) (en banc) (holding that the ultimate determination of whether a constitutional error was harmless is subject to de novo review, while underlying state court findings of fact are entitled to presumption of correctness), cert. denied, 488 U.S. 901 (1988).

In Thompson v. Keohane, 516 U.S. 99 (1995), the Supreme Court held that whether a defendant is in custody for Miranda purposes is a mixed question of law and fact not entitled to a presumption of correctness. The decision reversed the Ninth Circuit and resolved a circuit split regarding that issue.

Thompson v. Keohane, 516 U.S. 99 (1995) (holding that state court rulings that a suspect was not “in custody” for Miranda warning purposes were mixed questions of law and fact).

The constitutionality of pretrial identification procedures is a mixed question of law and fact.

Sumner v. Mata, 455 U.S. 591 (1982) (holding that constitutionality of pretrial identification procedures is mixed question).

The Eleventh Circuit held that a federal habeas court’s review of a state court factual finding regarding the existence of mitigating circumstances is entitled to the presumption of correctness.

Magwood v. Smith, 791 F.2d 1438 (11th Cir. 1986) (stating that federal habeas corpus court’s review of a state court factual finding concerning the existence of mitigating circumstances is constrained by 28 USC 2254(d)).

The Ninth Circuit held that the propriety of shackling a defendant during trial is a mixed question of law and fact.

Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir. 1989) (holding that whether shackling defendant during trial violated due process was mixed question “requiring the application of legal principles to the historical facts” and requiring trial court to review state record sua sponte), denial of habeas corpus aff’d in part and rev’d in part on other grounds, 17 F.3d 1149 (9th Cir. 1994).

Whether a modified sentence was adequate specific performance of a broken plea agreement is a mixed question of law and fact.

Pierre v. Thompson, 666 F.2d 424 (9th Cir. 1982) (holding that whether a modified sentence constituted adequate specific performance of a broken plea agreement is a mixed question subject to independent determination by federal court).

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (agreeing with holdings of Third and Fifth Circuits that when it is clear that a state court has not reached the merits of a properly raised issue, the federal habeas court must review it de novo; recognizing, nevertheless, that factual determinations by the state court are presumed correct and can be rebutted only by clear and convincing evidence), cert. denied, 539 U.S. 916 (2003).