What Does it Mean to Exhaust State Court Remedies?

Before one may file a federal petition for a writ of habeas corpus, one must exhaust state court remedies for the relief sought. 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese (2004) 541 U.S. 27, 29, 124 S. Ct. 1347; 158 L. Ed. 2d 64; Alfaro v. Johnson (9th Cir. 2017) 862 F. 3d 1176, 1180.  This requirement ensures that the state courts have the opportunity to correct any constitutional errors in the criminal proceedings and respects the right of state courts to resolve issues on independent state procedural grounds.

However, what does this exhaustion requirement really mean?

To meet the exhaustion requirement, the petitioner must have provided the highest state court with an opportunity to rule on the issues in the case. McQuown v. McCartney (9th Cir. 1986) 795 F. 2d 807, 809; Alfaro, supra, at 1181-1182.  

In California, this means a person challenging a felony criminal conviction or sentence can exhaust state remedies by a direct appeal to a state Court of Appeal followed by a petition for review in the California Supreme Court. Roman v. Estelle (9th Cir. 1990) 917 F. 2d 1505, 1506; see generally O’Sullivan v. Boerckel (1999) 526 U.S. 838, 842, 119 S. Ct. 1728; 144 L. Ed. 2d 1; Carrothers v. Rhay (9th Cir. 1979) 594 F. 2d 225, 228.  The person does not need to have filed a petition for certiorari asking the United States Supreme Court to review the direct appeal case. Fay v. Noia (1963) 372 U.S. 391, 435, 83 S. Ct. 822; 9 L. Ed. 2d 837. 

A person filing a claim in state court, who may want to file a federal habeas case in the future, should make sure to present the state court claims in a way that will preserve federal habeas rights.  The state court actions should explicitly set forth all of the potential federal legal claims and the specific facts upon which they are based. Duncan v. Henry (1995) 513 U.S. 364, 366, 115 S. Ct. 887; 130 L. Ed. 2d 865.  This requirement applies to pro se petitioners. Lyons v. Crawford (9th Cir. 2000) 232 F.3d 666, 669.

It is best to say in every state court brief filed at every level that the claim is federal, citing the governing section of the U.S. Constitution or federal statute and at least one or two federal cases. Baldwin v. Resse (2004) 541 U.S. 27, 31, 124 S. Ct. 1347; 157 L. Ed. 2d 64 (federal claim not fairly presented if court must read beyond the petition or brief to find claim); Castillo v. McFadden (9th Cir. 2005) 399 F. 3d 993, 1000 (no exhaustion unless petitioner presented the federal claim "within the four corners of his appellate briefing"); Casey v. Moore (9th Cir. 2004) 386 F. 3d 896, 915 (federal law claims not fairly presented when raised for first time in petition for review to state supreme court); Peterson v. Lampert (9th Cir. 2002) 277 F. 3d 1073, 1076 (same); Wooten v. Kirkland (9th Cir. 2008) 540 F. 3d 1019 (to exhaust claim of cumulative error, the claim must have been presented as separate issue from the underlying individual claims); Solis v. Garcia (9th Cir. 2000) 219 F. 3d 922, 930 (same).

Misdemeanor-only cases are appealed to the appellate division of the superior court and any further review is at the discretion of the court of appeal.  If the court of appeal refuses to accept transfer of the case, state court remedies are exhausted. McMonagle v. Meyer (9th Cir. 2015) 802 F. 3d 1093, 1096.

If an issue has not been presented to the state courts through a direct appeal followed by a petition for review then a petitioner can exhaust state remedies by filing habeas corpus petitions in the California state courts.  For example, a state habeas petition must be filed before filing a federal habeas case if the error was not or could not be raised on appeal, or if no petition for review was filed after the state court of appeal decision.  A person must use state habeas if the issue cannot be reviewed by direct appeal in court, such as a challenge to a prison disciplinary credit loss or a denial of parole suitability.

When the California Supreme Court denies a petition for review or a habeas corpus petition, then state remedies usually have been exhausted.  However, if a state court denies an appeal or petition on state law procedural grounds, then state remedies have not been exhausted because the highest state court has not ruled on the actual merit of the issues in the case. Kirkpatrick v. Chappell (9th Cir. 2017) 872 F. 3d 1047, 1056-1057.

The exhaustion requirement is strictly applied. However, an exception may be allowed when exhausting remedies would be futile. To show that raising the claim in the state courts would be futile, a petitioner must show that the California Supreme Court has recently or consistently resolved the issue adversely to petitioners and that there are no new U.S. Supreme Court decisions addressing the issues and no other indication that the state courts will change their position. Lynce v. Mathis (1997) 519 U.S. 433, 436, n. 4, 117 S. Ct. 891; 137 L. Ed. 2d 63.

Lastly, it is worth noting that if a petitioner has not exhausted state remedies, the state can consent to have the federal court hear the case without exhaustion. 28 U.S.C. § 2254(b)(2) and (3).  Otherwise, the general rule is that the federal court must dismiss the petition without prejudice to re-filing the petition after state remedies have been exhausted. 28 U.S.C. § 2254(b) and (d); Slack v. McDaniel (2000) 529 U.S. 473, 485, 120 S. Ct. 1595; 146 L. Ed. 2d 542; Stewart v. Martinez-Villareal (1998) 523 U.S. 637, 644, 118 S. Ct. 1618; 140 L. Ed. 2d 849; Rose v. Lundy (1982) 455 U.S. 509, 510, 102 S. Ct. 1198; 71 L. Ed. 2d 379; Anthony v. Cambra (9th Cir. 2000) 236 F. 3d 568, 574.  The court cannot deny the petition outright unless it is clear that the petitioner’s claim is frivolous. Cassatt v. Stewart (9th Cir. 2005) 406 F. 3d 614, 624.

This article would not be possible without the generous help of the Prison Law Office in their excellent treatise, California Prison and Parole Law Handbook.  We thank them.