S055187, Opinion — Farmer v. Baldwin

67
Argued and submitted June 4, 2008, certified question answered March 26, 2009
GEORGE EDWARD FARMER,
Petitioner,
v.
George H. BALDWIN,
Superintendent,
Eastern Oregon Correctional Institution,
Respondent.
(USDC CV 02-1565-ALA; USCA 06-35635; SC S055187)
205 P3d 871

68 	Farmer v. Baldwin
CJS, Criminal Law § 1685.
En Banc
On certified question from the United States Court of
Appeals for the Ninth Circuit; certification order dated
August 15, 2007; certification accepted October 31, 2007.
Lisa Hay, Assistant Federal Public Defender, Portland,
argued the cause and filed the brief for petitioner,
Mary Williams, Solicitor General, Salem, argued the
cause and filed the brief for respondent. With her on the brief
was Hardy Myers, Attorney General.
DURHAM,J.
The certified question is answered.

Cite as 346 Or 67 (2009) 	69
DURHAM,J.
This case is before this court on a certified question
of Oregon law from the United States Court of Appeals for
the Ninth Circuit. Farmer v. Baldwin, 497 F3d 1050 (9th Cir
2007). Under federal law, a petitioner generally may not
obtain a writ of habeas corpus without first exhausting
the 	remedies 	available 	to him in 	state court. 	28 	USC
§ 2254(b)(l)(A). 1 To exhaust those remedies, the petitioner
"must fairly present his claims in each appropriate state
court," in a manner that would "[alert] that court to the fed-
eral nature of the claim." Farmer, 497 F3d at 1053 (internal
quotation marks omitted). The Ninth Circuit asks this court
to determine whether, on the facts of this case, petitioner
properly raised his federal claims in this court prior to seek-
ing federal habeas relief.
I. 	FACTS AND PROCEDURAL HISTORY
The facts of this case are not in dispute. A jury con-
victed petitioner George Edward Farmer of murder, and the
trial court imposed a sentence of 25 years to life imprison-
ment. Following an unsuccessful appeal, State v. Farmer, 116
Or App 673, 842 P2d 465 (1992), rev'd, 317 Or 220, 856 P2d
623 (1993), petitioner sought post-conviction relief (PCR).
Petitioner raised nearly 100 challenges to his conviction, the
bulk of which were based on both the state and federal con-
stitutions. The PCR court denied relief.
Petitioner appealed his post-conviction case, but his
appellate attorney apparently could not identify any merito-
rious issues on appeal. Accordingly, the attorney submitted a
brief in accordance with the procedures that this court
1 28 USC § 2254 provides, in part:
"(b)(l) An application for a writ of habeas corpus on behalfof 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[.]
"* * * * *
"(c) An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, ifhe has
the right under the law of the State to raise, by any available procedure, the
question presented."

70 	Farmer v. Baldwin
announced in State v. Balfour, 311 Or 434, 814 P2d 1069
(1991), and codified at Oregon Rule of Appellate Procedure
(ORAP) 5.90, 2 which we set out below. The attorney prepared
section A, which identified the brief as a Balfour brief, and
stated:
"Counsel has complied with the provisions of Balfour by
contacting petitioner and post-conviction trial counsel for
petitioner, in an effort to identify any nonfrivolous issues
for appeal. Petitioner has been offered an opportunity to
draft and submit a Section B brief with the assistance of
counsel.
"Petitioner has decided to attach a copy of his post convic-
tion petition, in the hopes of at least preserving all the
issues presented therein."
The brief contained no section identified as "section B," but
petitioner did attach a copy of his post-conviction petition.
The Court of Appeals affirmed the decision of the PCR court
without opinion. Farmer v. Baldwin, 182 Or App 292, 49 P3d
851 (2002).
Petitioner sought review in this court. The petition
for review did not identify a section A or section B. Instead,
under the heading "Statement of Facts," the petition stated
that "[p]etitioner has filed a Petition for Post-Conviction
Relief and makes all the allegations set forth therein." Under
the 	heading "Statement of reasons 	why 	issue 	requires
Supreme Court decision," the petition stated that "[t]he peti-
tioner's position is also set forth in the appellant's [B]alfour
brief." Otherwise, the petition did not identify any legal ques-
tions presented on review. Petitioner did not attach a copy of
his appellate brief or his post-conviction petition to the peti-
tion for review. This court denied review of petitioner's case.
Farmer v. Baldwin, 334 Or 631, 54 P3d 1041 (2002).
2 Balfour addressed the requirements of both legal ethical principles and the
Sixth Amendment to the United States Constitution when an appellate attorney,
appointed to represent an indigent criminal defendant, is unable to identify any
meritorious issues for a direct appeal. In such a case, this court held, the attorney
may submit an appellate brief in two sections. Section A contains a statement of
the case without any assignments of error or argument and is signed by the attor-
ney. Section B presents "the issue that the client seeks to raise in the manner that
the client seeks to raise it" and is signed by the defendant. Balfour, 311 Or at 451-
52. ORAP 5.90(1)(a) and (b) state the requirements for sections A and B of a brief
filed under that rule.

Cite as 346 Or 67 (2009) 	71
Petitioner then filed for a writ of habeas corpus in
federal court. The federal district court found that petitioner
had not exhausted his state remedies prior to filing for
habeas relief because he had failed to fairly present his fed-
eral claims to this court:
"[T]he petition for review submitted to the Oregon Supreme
Court did not identify a federal claim or allege a violation of
federal constitutional law. Consequently, to be apprised of
petitioner's federal claims, the Oregon Supreme Court
would have had to 'read beyond' the petition for review and
the appellate briefing to discover petitioner's alleged fed-
eral claims. Specifically, the Oregon Supreme Court would
have had to review petitioner's Balfour brief presented to
the Oregon Court of Appeals and peruse the attached,
fifteen-page amended PCR petition alleging almost 100
grounds for relief."
Farmer v. Baldwin, Civ No 02-1565-AA, 2006 WL 1766184
at *3 (D Or June 22, 2006). Accordingly, the district court dis-
missed the petition.
Petitioner appealed to the Ninth Circuit, arguing
that he had fairly presented his federal claims to this court.
To determine whether that was the case, the Ninth Circuit
examined the 2001 Oregon Rules of Appellate Procedure. 3
The court found that the petition for review had failed to
fairly present petitioner's claims under ORAP 9.05. However,
the court held that the petition actually was governed by the
Balfour standard for pleading set forth at ORAP 5.90. The
court then noted that it was "simply unaware of the extent to
which the Oregon Supreme Court may be flexible in applying
that rule," particularly when presented with a petition for
review that referred to a Balfour brief that was filed in the
Court of Appeals. Farmer, 497 F3d at 1054. Accordingly, the
Ninth Circuit certified the following question to this court:
"Whether, under its rules or practice, the Oregon Supreme
Court would deem a federal question not properly raised
3 Although the 2001 Oregon Rules of Appellate Procedure govern this case, see
ORAP 1.10(2) ("The superseded [Oregon Rules of Appellate Procedure] shall apply
to any thing filed or time period commenced in the appellate courts before the effec-
tive date of any amendment or new rule."), we refer in this opinion to the current
Oregon Rules of Appellate Procedure. As regards this case, we perceive no material
difference between the 2001 version and the current rules.

72 	Farmer v. Baldwin
before it, when that question has been presented by means
of an attachment to a Balfour brief filed in the Court of
Appeals, and the attachment served as (but was not labeled
as) Section B of said brief, and the petitioner specifically
states in his petition to the Supreme Court that his reasons
for seeking review are set forth in the Balfour brief."
Id. at 1055-56. This court accepted the certified question.
II. 	APPLICATION OF APPELLATE
PROCEDURAL RULES
Before we answer that question, there is a point that
we must clarify about our answer. As we understand it, the
Ninth Circuit does not ask us to determine whether the peti-
tioner in the instant case has fairly presented his claims to
this court. Fair presentation is a question of federal law.
Rather, we assume that the Ninth Circuit asks us to deter-
mine whether petitioner presented his claims in a manner
that would have allowed us to exercise our discretion to
review them. We will answer that question by reference to
Oregon appellate procedure. In the latter part of this opinion,
we present other information that may assist the Ninth
Circuit in determining, in light of our answer, whether
petitioner 	has 	satisfied 	the 	federal 	fair 	presentation
requirement.
First, we address some general arguments that the
state makes regarding appellate procedure. The state asserts
that this court will not "scour the petitioner's Court of
Appeals briefs as part of its consideration of the petition for
review." Instead, the state insists that this court will consider
briefs filed in the Court of Appeals "only after the petition has
been granted."
When this court considers a petition for review of a
decision of the Court of Appeals, briefs filed in the Court of
Appeals are available to this court and will be reviewed at
that stage ifthe court or any justice desires to do so. Nothing
requires the court or any justice to consider only the petition
for review in deciding whether to grant review. The Oregon
Rules of Appellate Procedure make that clear. ORAP 9.07(15)
states that one of this court's criteria for granting review is
"[w ]hether the issues are well presented in the briefs." The
term "briefs" necessarily refers to the briefs filed in the Court

Cite as 346 Or 67 (2009) 	73
of Appeals, because the rules do not give leave to the parties
to file briefs in the Supreme Court until after this court
grants review. See ORAP 9.17(1) (so stating). 4 Likewise,
ORAP 9.10(1) provides that, in the absence of a response to
the petition for review, "the party's brief in the Court of
Appeals will be considered as the response." Finally, ORAP
9.05(4)(d) states that the petition for review shall contain "[i]f
desired, and space permitting, a brief argument concerning
the legal question or questions presented on review." At the
same time, one of this court's criteria for granting review is
"[w ]hether the Court of Appeals decision appears to be
wrong." ORAP 9.07(14). It is doubtful that a party could dem-
onstrate that a decision of the Court of Appeals was in error
without reference to a legal argument. If a legal argument is
not required in the petition for review-and the rules clearly
state that a party need only include such an argument "[i]f
desired"-it follows that this court may consider briefs filed
in the Court of Appeals to identify and evaluate a party's
legal arguments on a question presented on review. The
appellate brief filed in the Court of Appeals can be the most
likely source for those arguments. 5
The state also asserts that a petition for review may
not incorporate appellate briefs by reference. No provision of
the Oregon Rules of Appellate Procedure expressly restricts
the use of that drafting technique in preparing a petition for
review. It is generally true that our rules discourage undue
repetition in briefing a party's arguments. Incorporating
arguments by means of a reference to briefs filed at an earlier
stage of proceedings can foster that goal. ORAP 9.05(4)(d)
illustrates that point. As stated above, that rule requires a
4 ORAP 9.17 provides, in part:
"(l) After the Supreme Court allows review, the parties to the case on
review may file briefs on the merits of the case, as provided in this rule. A
respondent may file a brief on the merits on review even if the petitioner on
review elects not to do so."
5 The Ninth Circuit has observed that this court "often looks to the briefs filed
in the Court of Appeals in deciding whether to grant petitions for review * * *."
Wells v. Maass, 28 F3d 1005, 1009 (9th Cir 1994); accord Peterson v. Lampert, 319
F3d 1153, 1157 (9th Cir 2003) (describing Wells as holding that "the federal claim
had been fairly presented when the claim had been briefed in the court of appeals
and where it was clear 'in context' that the petition for review referred to the appel-
late brief'). We agree with those observations.

74 	Farmer v. Baldwin
petition for review to contain a brief argument related to each
reason asserted for review, "[i]f desired." ORAP 9.05(4)(d)
thus implies that a petitioner may rely on the legal argu-
ments made in the Court of Appeals. The best way for a peti-
tioner to do so is to direct this court's attention to those argu-
ments 	by referring to 	them 	within the 	petition. 	At 	a
minimum, the rules contemplate that a petitioner may raise
arguments by incorporating those arguments from his or her
appellate brief into the petition for review.
The question posed by the Ninth Circuit, however, is
more specific. The Ninth Circuit asks whether a petitioner
may present a "federal question" by stating that question in
an attachment to a Balfour brief and then incorporating that
brief by reference into a petition for review. Petitioner argues
that such incorporation by reference is permissible under the
standard for Balfour briefs announced at ORAP 5.90. The
state responds, first, by pointing out that, under ORAP
9.05(4)(b), the petition for review must contain a statement of
the legal question presented on review. The state asserts
that, under that rule, the petitioner must present the legal
question within the petition itself. Second, the state asserts
that, even under ORAP 5.90, a Balfour litigant has a "core
obligation" to identify the legal question within the bounds of
the petition for review. 6
Because the parties rely on ORAP 9.05 and ORAP
5.90 to support their arguments, we quote those rules below.
First, ORAP 9.05 describes the procedural requirements
regarding the contents for a petition for review. That rule
provides, in part:
"(2) 	Time for Filing and for Submitting Petition for
Review
6 The state also asserts that petitioner did not file the petition for review under
ORAP 5.90(5), because petitioner's counsel prepared and signed the petition for
review, and petitioner did not sign the petition for review. We have assumed to the
contrary, because counsel's role in preparing and signing a petition for review does
not dictate the applicable appellate procedure and because the petition for review
expressly referred to "appellant's [B]alfour brief." The parties focus their argu-
ments on the permissibility of incorporating issues into a petition for review by ref-
erence to a previously filed Balfour brief, not on whether ORAP 5.90(4) and (5) or
ORAP 9.05 governed the petition for review that petitioner filed.

Cite as 346 Or 67
"(a) 	Any party seeking to obtain review of a decision of
the Court of Appeals shall file a petition for review in the
Supreme Court within 35 days after the date of the decision
of the Court of Appeals.
"* * * * *
"(3) 	Form and Service of Petition for Review
"(a) 	The petition shall be in the form of a brief, pre-
pared in conformity with Rules 5.05, except that the peti-
tion shall not exceed 15 pages in length, and ORAP 5.35.
The cover of the petition shall:
"(i) 	Identify which party is the petitioner on review,
including the name of the specific party or parties on whose
behalf the petition is filed, if there are multiple parties on
the same side in the case.
"(ii) 	Identify which party is the respondent on review.
"(iii) Identify the date of the decision of the Court of
Appeals.
"(iv) 	Identify the means of disposition of the case by
the Court of Appeals;
''* * * * *
"(4) Contents of Petition for Review
"The petition shall contain in order:
"(a) 	A short statement of the historical and procedural
facts relevant to the review, but facts correctly stated in the
decision of the Court of Appeals should not be restated.
"(b) 	Concise statements of the legal question or ques-
tions presented on review and of the rule of law that peti-
tioner on review proposes be established, if review is
allowed.
"(c) 	A statement of specific reasons why the legal ques-
tion or questions presented on review have importance
beyond the particular case and require decision by the
Supreme Court.
"(d) 	If desired, and space permitting, a brief argument
concerning the legal question or questions presented on
review.
75

76 	Farmer v. Baldwin
"(e) 	A copy of the decision of the Court of Appeals,
including the court's opinion and any concurring and dis-
senting opinions."
ORAP 5.90 states procedural requirements for a
petition for review in the Balfour context, i.e., when court-
appointed counsel for an indigent defendant in a criminal
case determines that the case does not raise any arguably
meritorious issues on appeal:
"(1) 	If counsel appointed by the court to represent an
indigent defendant in a criminal case on direct appeal has
thoroughly reviewed the record, has discussed the case with
trial counsel and the client, and has determined that the
case does not raise any arguably meritorious issues, coun-
sel shall file an opening brief with two sections:
"(a) 	Section A of the brief shall contain:
"(i) 	A statement of the case, including a statement of
the facts of the case. If the brief contains a Section B with
one or more claims of error asserted by the client, the state-
ment of facts shall include facts sufficient to put the claim
or claims of error in context.
"(ii) 	A description of any demurrer or significant
motion filed in the case, including, but not limited to, a
motion to dismiss, a motion to suppress and a motion
in limine, and the trial court's disposition of the demurrer
or motion.
"(iii) 	A statement that the case is being submitted pur-
suant to this rule, that counsel has thoroughly reviewed the
record and discussed the case with trial counsel and the cli-
ent, and that counsel has not identified any arguably meri-
torious issue on appeal. If the brief does not contain a Sec-
tion B, counsel also shall state that counsel contacted the
client, gave the client reasonable opportunity to identify a
claim or claims of error, and that the client did not identify
any claim of error for inclusion in the brief.
"(iv) 	Counsel's signature.
"(b) (i) 	Section B of the brief is the client's product and
may contain any claim of error that the client wishes to
assert. The client shall attempt to state the claim and any
argument in support of the claim as nearly as practicable in
proper appellate brief form. Section B of the brief shall not

Cite as 346 Or 67 (2009)
exceed 48 pages in length. The last page of Section B of the
brief shall contain the name and signature of the client.[71
"(ii) 	Counsel's obligation with respect to Section B of
the brief shall be limited to correcting obvious typographi-
cal errors, preparing copies of the brief, serving the appro-
priate parties, and filing the original brief and the appro-
priate number of copies with the court.
"* * * * *
"(4) 	In a case other than a criminal case on direct
appeal, court-appointed counsel who determines that there
are no meritorious issues on appeal may submit a brief
under this rule * * *.
"(5) 	In any case in which the appellant is represented
by court-appointed counsel on appeal and counsel filed a
brief in the Court of Appeals under subsection (1) of this
rule, counsel may submit a petition for review that contains
a Section A that complies with Rule 9.05(3)(a), and a
Section B that complies with paragraph {l)(b) of this rule."
77
It is true that ORAP 9.05(4)(b) requires a petition for
review to contain "[c]oncise statements of the legal question
or questions presented on review." It also is true, however,
that ORAP 5.90(5) specifically exempts a Balfour petition
from that requirement. The only part of ORAP 9.05 that a
Balfour petition must comply with is ORAP 9.05(3)(a), which
principally describes the requirements for the cover of a peti-
tion for review.
Otherwise, section B of a petition for review filed
under ORAP 5.90(5) and Balfour-the part that raises a cli-
ent's claims of error-must comply with ORAP 5.90(1)(b)(i),
which requires, on the petitioner's part, an "attempt to state
the claim and any argument in support of the claim as nearly
as practicable in proper appellate brief form." The qualifiers
"attempt" and "as nearly as practicable" are key terms.
ORAP 5.90 does not require exact compliance with the forms
7 ORAP 5.90(1)(b) (2001) imposed no page limitation on section B of the brief.
That rule provided:
"Section B of the brief shall contain any claim of error requested by the client
and shall be signed by the client. Section B shall attempt to state the claim and
any argument in support of the claim as nearly as practicable in the manner
that the client seeks, in proper appellate form."

Farmer v. Baldwin
and rules of appellate briefing that lawyers observe; rather ,it
requires that a litigant attempt to present his or her claims in
proper appellate brief form, as nearly as practicable.
Given 	the 	relaxed 	standard 	that 	ORAP 	5.90
imposes, we cannot say that a petitioner fails to comply with
that rule by presenting a legal question in an attachment to a
Balfour brief, as long as the attachment serves as the section
B of the petitioner's briefin the Court of Appeals and the peti-
tion for review incorporates that attachment. ORAP 5.90
requires only an "attempt" to comply with proper appellate
brief form. In light of the lack of legal training that most
Balfour litigants possess, we cannot say that, on its face, a
petition such as that described above fails to qualify as an
attempt to state the claim within the meaning of ORAP 5.90.
We also note that an assumption underlies the argu-
ments of both petitioner and the state that we believe to be
erroneous. Both parties appear to assume that this court may
not consider a legal question for review ifthat question is not
presented in a petition that complies explicitly with the
requirements of either ORAP 5.90(5) or ORAP 9.05. That is
not necessarily true. As ORAP 9.07 states, this court "retains
the inherent authority to allow or deny any petition for
review." 8 That authority is not limited by a party's failure to
comply with the required forms of appellate briefing. ORAP
1.20 provides that this court and the Court of Appeals "may"
respond to a failure to comply with appellate rules by striking
briefs and motions, or by dismissing an appeal, 9 but that
8 ORAP 9.07 lists the criteria that this court will consider when granting dis-
cretionary review and provides, in part:
"The Supreme Court considers the items set out below to be relevant to the
decision whether to grant discretionary review. These criteria are published to
inform and assist the bar and the public. They are neither exclusive nor bind-
ing. The court retains the inherent authority to allow or deny any petition for
review."
(Emphasis added.)
9 ORAP 1.20 provides, in part:
"(2) The court on its own motion or on motion of a party may strike, with
or without leave to refile, any brief, excerpt of record, motion or other thing
that does not conform to applicable statutes or these rules.
"* * * * *
"(4) The court on its own motion or on motion of a party may dismiss an
appeal for want of prosecution if:

Cite as 346 Or 67 (2009) 	79
authority, as demonstrated by the word "may," is discretion-
ary. Nothing in the Oregon Rules of Appellate Procedure pre-
vents this court from considering an imperfectly drafted peti-
tion as a candidate for review.
We do not take lightly a party's failure to comply
with the Oregon Rules of Appellate Procedure. The appellate
courts have promulgated those rules to facilitate the expedi-
tious disposition of their business. 10 We are not inclined to
expend limited judicial resources on behalf of litigants who
demonstrate a lack ofregard for appellate court rules. But, as
our rules demonstrate, a litigant may fail to comply with the
rules and still "present" a claim to this court, because this
court retains 	authority to review imperfectly presented
claims.
The ultimate question whether a litigant has raised
a claim for review by this court is a matter committed to this
court's discretion. Ordinarily, a litigant must explain how the
lower courts have erred and why this court should exercise its
discretion to correct the error. That is a low threshold. To
raise a claim for review, a litigant need not be persuasive,
correct, thorough, or even reasonable. All a litigant has to do
is to identify to this court the claim of error that he or she
wants to see corrected. This court may decide, in response,
whether to allow or deny review of the alleged error.
"(a) the appellant has failed to comply with applicable statutes or these
rules;
"(b) fourteen days' notice of the noncompliance has been given to each
attorney of record and to parties not represented by counsel; and
"(c) the court has not received a satisfactory response to the notice.
"(5) For good cause, the court on its own motion or motion of any party
may waive any rule."
10 ORS 2.120 provides:
"The Supreme Court shall have power to make and enforce all rules nec-
essary for the prompt and orderly dispatch of the business of the court, and the
remanding of causes to the court below."
ORS 2.560 provides, in part:
"(2) The Court of Appeals may make and enforce all rules necessary for
the prompt and orderly dispatch of the business of the court, and the remand-
ing of causes to the lower courts, and not inconsistent with applicable rules
made or orders issued by the Chief Justice of the Supreme Court or the Chief
Judge of the Court of Appeals."

Farmerv.
With that said, we turn to the petition filed in the
instant case. Petitioner presented his claims to this court by
attaching a 	post-conviction petition as section B of his
Balfour brief and then cross-referencing that briefin his peti-
tion for review. As we mentioned earlier, under ORAP 5.90,
that is acceptable as an "attempt" to comply with proper
appellate brief form "as nearly as practicable." In other
words, the petition for review complied with the appellate
rules, at least minimally.
That leaves the question of whether, as a practical
matter, the petition presents a cognizable claim for review.
As we stated earlier, the briefs filed in the Court of Appeals
are properly before us as part of our evaluation of a petition
for review. This court's rules allow the petitioner to direct our
attention to those briefs to determine the question or ques-
tions presented on review. Accordingly, petitioner's incorpo-
ration by reference of arguments from his appellate brief is a
permissible method of raising an issue in this court.
We are more concerned by the form of petitioner's
section B of his Court of Appeals brief, incorporated by refer-
ence in his petition for review. As we mentioned earlier, an
appellant's duty is to identify how a lower court has erred.
Instead of explaining how the trial court or the Court of
Appeals 	erred, 	however, 	petitioner 	submitted 	his 	post-
conviction petition as his section B. That petition sought
relief from conviction in the trial court; it did not identify any
errors arguably committed in this proceeding by either the
trial court or by the Court of Appeals. That said, however,
when reading a petition filed by a Balfour litigant, we will
attempt to give that petition a fair reading, rather than dis-
missing it out of hand. In the instant case, we assume that, by
filing his post-conviction petition as section B of his Balfour
brief, petitioner intended to argue that his conviction was
flawed on the grounds asserted therein and that the PCR
court had erred in denying all his claims for relief. We take
that as the claim that petitioner intended to present to this
court.
We conclude from the foregoing that the petition for
review in the instant case fell within the bounds of permissi-
ble appellate advocacy, as stated in our rules. However, we

Cite as 346 Or 67 (2009) 	81
stress that the petition does not present an example of effec-
tive appellate advocacy. The petition lacked a presentation of
careful, 	thorough 	arguments 	explaining why this 	court
should review those issues. Petitioner simply restated, on
appeal and on review, every claim that he had raised at trial
without presenting even a cursory explanation of why the
trial court or the Court of Appeals should have ruled in his
favor. Only in the rarest circumstance would this court be
inclined to exercise its discretion to grant such an under-
developed petition for review. The Oregon Rules of Appellate
Procedure permit petitioner to seek review of his case in that
manner, but we do not advise future litigants to follow in his
footsteps.
We therefore answer the Ninth Circuit's question as
follows. Under ORAP 5.90, a petitioner may present a ques-
tion of law to this court by means of an attachment to a
Balfour brief filed in the Court of Appeals, when the attach-
ment serves as section B of said brief, and the petitioner
incorporates that same brief by reference into his petition for
review. We do not recommend that petitioners present their
questions in that manner, but we will not refuse outright to
consider their questions if they do so. 11
III. 	PETITIONER'S CLAIM THAT REVIEW
IS "UNAVAILABLE"
The foregoing answer ordinarily would end the mat-
ter, but petitioner raises an additional issue in this proceed-
ing. This court has discretion to reframe certified questions,
although it ordinarily exercises that discretion with reserve,
to facilitate a resolution to the actual question of law pre-
sented by the case in point. Western Helicopter Services v.
Rogerson Aircraft, 311 Or 361, 370-71, 811 P2d 627 (1991).
Petitioner requests that this court exercise its discretion and
reframe the certified question to clarify that, "under existing
law, review in this Court is an extraordinary remedy not
'available' for all classes of cases." Specifically, petitioner
11 The Oregon Rules of Appellate Procedure place limits on the size of a section
B. ORAP 5.90(1)(b) now restricts the length of a section B of a Balfour brief to
48 pages. If a section B attachment causes a petition for review filed under ORAP
5.90(5) to exceed that length, this court retains discretionary authority to address
the violation of that rule through a variety of sanctions. ORAP 1.20.

82 	Farmer v. Baldwin
requests that this court declare that a prisoner who seeks
federal habeas corpus relief need not petition this court for
review of his claims to exhaust available state remedies. For
the following reasons, we decline to reformulate the certified
question in that manner.
A discussion of federal law 	necessary to under-
stand the legal issues that attend petitioner's request. As
mentioned above, a federal habeas corpus petitioner must
exhaust available state post-conviction remedies before filing
in federal court. 28 USC § 2254(c) provides that a habeas
petitioner "shall not be deemed to have exhausted the reme-
dies available in the courts of the State * * * if he has the
right under the law of the State to raise, by any available pro-
cedure, the question presented." The United States Supreme
Court has held that 28 USC § 2254(c) requires a state pris-
oner to "invok[e] one complete round of the State's estab-
lished 	appellate 	review 	process" 	before 	seeking federal
habeas relief. O'Sullivan v. Boerckel, 526 US 838, 845, 119
S Ct 1728, 144 L Ed 2d 1 (1999). However, prisoners are not
required to seek "extraordinary remedies" that "are alterna-
tives to the standard review process and where the state
courts have not provided relief through those remedies in the
past." Id. at 844. Such remedies are not considered "availa-
ble" under 28 USC § 2254(c). Id.
In O'Sullivan, the Supreme Court held that 28 USC
§ 2254(c) required an Illinois prisoner to seek review of his
post-conviction claims in the Illinois Supreme Court, a court
of discretionary review. The Court acknowledged that a pris-
oner has no right to receive review from a court that holds
discretionary control over its docket. However, the Court
held, the prisoner had the right to present his claims to the
Illinois Supreme Court, and that court had the opportunity to
review them. As such, review in that court was "available."
Id. at 845. That was true, the Court held, even though the
Illinois Supreme Court's rules of procedure suggested that
that court preferred to avoid review of "routine allegations
of error'' and, instead, "to expend its limited resources on

Cite as 346 Or 67 	83
questions of broad significance." Id. at 846 (internal quota-
tion marks omitted). 12
The Supreme Court acknowledged that, as a possi-
ble consequence of its holding, state supreme courts could be
flooded with unwanted post-conviction petitions:
"We also recognize that this increased burden may be
unwelcome in some state courts because the courts do not
wish to have the opportunity to review constitutional
claims before those claims are presented to a federal habeas
court. See, e.g., In re Exhaustion of State Remedies in
Criminal and Post-Conviction Relief Cases, 321 S.C. 563,
471 S.E. 2d 454 (1990); see also State v. Bandon, 161 Ariz.
157, 777 P. 2d 220 (1989)."
The Court then suggested that there was a limit on its
holding:
"In this regard, we note that nothing in our decision today
requires the exhaustion of any specific state remedy when a
State has provided that that remedy is unavailable. Section
2254(c), in fact, directs federal courts to consider whether a
habeas petitioner has 'the right under the law of the State to
raise, by any available procedure, the question presented.'
(Emphasis added.) The exhaustion doctrine, in other words,
turns on an inquiry into what procedures are 'available'
under state law. In sum, there is nothing in the exhaustion
doctrine requiring federal courts to ignore a state law or
rule providing that a given procedure is not available. We
hold today only that the creation of a discretionary review
system does not, without more, make review in the Illinois
Supreme Court unavailable."
Id. at 847-48 (emphasis in original).
Illinois Supreme Court Rule 315(a), as quoted in O'Sullivan, provides:
"The following, while neither controlling nor fully measuring the court's discre-
tion, indicate the character of reasons which will be considered: the general
importance of the question presented; the existence of a conflict between the
decision sought to be reviewed and a decision of the Supreme Court, or of
another division of the Appellate Court; the need for the exercise of the
Supreme Court's supervisory authority; and the final or interlocutory charac-
ter of the judgment sought to be reviewed."
526 US at 843.

Farmer v. Baldwin
The import of that last paragraph is less than clear.
The Supreme Court said that the exhaustion doctrine does
not require a state prisoner to avail himself of a given state
procedure if"a state law or rule" provides that the procedure
in question "is not available." The Court then added that
endowing a court with powers of discretionary review does
not make such review unavailable, "without more." The
majority opinion set up a question and then declined to
answer it: Exactly what "more" is needed if a state wishes to
make review in a court of last resort "unavailable" for
exhaustion purposes?
Two state court cases, decided prior to O'Sullivan
and cited by the Supreme Court in that case, may suggest an
answer. In State v. Sandon, 161Ariz157, 777 P2d 220 (1989),
an Arizona prisoner had sought federal habeas relief, and the
federal district court had dismissed his petition, holding that
he had not exhausted his state remedies because he had
failed to present several issues to the Arizona Supreme
Court. The prisoner then sought review of those issues in the
Arizona Supreme Court.
In an earlier case, the Arizona Supreme Court had
held that an attorney in a criminal case was not required to
file a petition for review if the attorney determined that no
issue was appropriate for review-a situation identical to
that 	faced 	by 	attorneys 	filing Balfour 	briefs. 	State 	v.
Shattuck, 140 Ariz 582, 684 P2d 154 (1984). The court set out
two primary reasons for reaching that decision. First, the
court noted, there was no right to supreme court review
except in criminal cases involving a life sentence or the death
penalty. "In all other cases, review is discretionary with this
court." Id. at 156. Second, the court noted that its resources
were limited and, as a court of discretionary review, it would
not choose to focus those resources on "trivia":
"The system is strained to the point that we cannot afford
the luxury of repeated review of trivia or issues of small
merit. The time available to prosecutors, defenders, judicial
staff and judges must be devoted to issues of substance."
Id. at 157.

Cite as 346 Or 67 (2009) 	85
Sandon examined the holding of Shattuck and con-
cluded that, given the considerations discussed in Shattuck,
Arizona prisoners were not required to petition the state
supreme court to exhaust state remedies:
"In [Shattuck], we pointed out that there was no right to
appeal to this Court except in cases in which the death pen-
alty or life imprisonment is imposed. While Shattuck
involved a discussion of the role of counsel in cases appealed
according to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), the considerations are the
same when discretionary review is sought in this Court
pursuant to Rule 31.19. Once the defendant has been given
the appeal to which he has a right, state remedies have
been exhausted. Not only is this court not required to accept
petitions for review in Anders type cases, we are not
required to accept them in any case."
Sandon, 777 P2d at 221 (internal quotation marks and cita-
tions omitted; emphasis in original). Accordingly, the Arizona
Supreme Court held that the prisoner had exhausted his
state remedies and dismissed the petition.
The South Carolina Supreme Court reached a simi-
lar 	conclusion 	in 	In 	re 	Exhaustion 	of State 	Remedies,
although it did so without responding to the petition of a par-
ticular litigant. Instead, the court issued the following order
of its own accord:
"In 1979, the General Assembly created the South
Carolina Court of Appeals for the purpose ofreducing South
Carolina's appellate backlog. The Court of Appeals reviews
criminal as well as civil appeals, and this Court reviews its
decisions by writ of certiorari only where special reasons
justify the exercise of that power.
"We recognize that criminal and post-conviction relief
litigants have routinely petitioned this Court for writ of cer-
tiorari upon the Court of Appeals' denial of relief in order to
exhaust all available state remedies. We therefore declare
that in all appeals from criminal convictions or post-
conviction relief matters, a litigant shall not be required to
petition for rehearing and certiorari following an adverse
decision of the Court of Appeals in order to be deemed to
have exhausted all available state remedies respecting a
claim of error. Rather, when the claim has been presented

86 	Farmer v. Baldwin
to the Court of Appeals or the Supreme Court, and relief
has been denied, the litigant shall be deemed to have
exhausted all available state remedies."
In re Exhaustion of State Remedies, 471SE2d at 454.
Common 	threads 	appear in Sandon 	and In 	re
Exhaustion of State Remedies. In each opinion, a state
supreme court asserted its prerogative, as a court of discre-
tionary review, to limit the exercise of its discretion to cases
that present "issues of substance" or "special reasons" to
accept review. In each opinion, the court noted that post-
conviction relieflitigants petition it "routinely" and in "large
numbers." And in each opinion, the court rectified that situ-
ation by announcing that state prisoners were not required to
seek its review to exhaust state remedies. That much is clear.
What is not clear is why the United States Supreme
Court cited both those opinions in O'Sullivan. We can think
of two possible conclusions that a lower court could draw
from those citations. First, the Court may have cited In re
Exhaustion of State Remedies and Sandon to show that,
although some state supreme courts consider an increase in
petitions for post-conviction relief to be what O'Sullivan
describes as an "unwelcome burden" that "disserves the com-
ity interests underlying the exhaustion doctrine," that bur-
den, nevertheless, is one that those courts must bear. We
note that, in In re Exhaustion of State Remedies and Sandon,
the supreme courts of South Carolina and Arizona relied on
their status as courts of discretionary review to hold that
prisoners were not required to petition them to exhaust state
remedies. But O'Sullivan states that the creation of a system
of discretionary review does not, "without more," make state
supreme court review unavailable. Accordingly, that passage
from O'Sullivan can be read as an implicit rejection of In re
Exhaustion of State Remedies and Sandon.
It also may be that the Supreme Court cited those
cases as examples of how a state supreme court might avoid
an 	unwelcome 	influx 	of 	post-conviction 	petitions, 	by
announcing that discretionary review is "unavailable" for
exhaustion purposes. The creation of a discretionary review
system, "without more," does not make review unavailable.
The Court's citation to In re Exhaustion of State Remedies

Cite as 346 Or 67 	87
and Sandon, however, permits the inference that the some-
thing "more" that it requires is an announcement from a
state supreme court "that a given procedure is not available."
We note that, in O'Sullivan, the Illinois Supreme Court had
made no such announcement.
In a concurrence to O'Sullivan, Justice Souter-
himself a former member of a state's highest court-gave the
latter reading to the majority opinion. Justice Souter opined
that the 	Court's 	citation to In 	re Exhaustion 	of State
Remedies "should not be read to suggest * * * that however
plainly a State may speak its highest court must be subjected
to constant applications for a form of discretionary review
that the State wishes to reserve for truly extraordinary cases
***."O'Sullivan, 526 US at 849-50 (Souter, J., concurring).
Instead, Justice Souter understood that the Court would
allow state prisoners to "skip" procedures "even when a state
court has occasionally employed it to provide relief," as long
as the state "has identified the procedure as outside the stan-
dard review process" and "has plainly said that it need not be
sought for the purpose of exhaustion." Id. at 850.
Most federal circuits that have considered that ques-
tion have given O'Sullivan the same reading that Justice
Souter did. The interactions between the Arizona Supreme
Court and the Ninth Circuit provide an example. Prior to
O'Sullivan, the Ninth Circuit had rejected the previously dis-
cussed holding in Sandon and held that Arizona prisoners
were required to file for review in the supreme court prior to
seeking federal habeas relief because they had a right to peti-
tion 	for 	review 	and 	such review was 	thus 	"available."
Jennison v. Goldsmith, 940 F2d 1308, 1310 (9th Cir 1991) (so
stating). 	After 	O'Sullivan, 	however, 	the 	Ninth 	Circuit
reversed itself:
"[T]he 	Arizona 	Supreme 	Court 	has 	announced 	that,
in cases not carrying a life sentence or the death penalty,
review need not be sought before the Arizona Supreme
Court in order to exhaust state remedies. Thus, post-convic-
tion review before the Arizona Supreme Court is a remedy
that is 'unavailable' within the meaning of O'Sullivan.
"* * * * *

Farmer
"O'Sullivan recast the manner by which we must ascertain
whether 	state 	appellate 	procedures 	are 	'available' 	for
exhaustion purposes. The import of O'Sullivan is that
exhaustion is not required when a state declares which rem-
edies are 'available' for exhaustion. Arizona has done so."
Swoopes v. Sublett, 196F3d1008, 1010-11 (9th Cir 1999), cert
den, 	529 US 1124 (1999) (footnote omitted). The Ninth
Circuit held that, because Sandon had announced that
review was not "available," the prisoner in Swoopes was "not
required to file a petition for review before the Arizona
Supreme Court to exhaust his claims for federal habeas pur-
poses***." Id at 1011. As we mentioned earlier, the Arizona
Supreme Court had based its holding in Sandon on its status
as a court of discretionary review and on the fact that a peti-
tioner had no right to receive such review. The Supreme
Court in O'Sullivan explicitly had rejected the argument that
endowing a court with discretionary review made review
unavailable, "without more." O'Sullivan also had held that
discretionary review remained "available" when a petitioner
had a right to seek it, even if he or she had no right to receive
it. Nonetheless, the Ninth Circuit understood O'Sullivan to
permit a state supreme court to declare that discretionary
review was unavailable, simply by announcing as much in an
opinion.
Other federal circuits, faced with similar announce-
ments by state supreme courts, have reached the same con-
clusion as the Ninth Circuit, based on similar readings of
O'Sullivan. See Randolph v. Kemna, 276 F3d 401, 404 (8th
Cir 2002); Adams v. Holland, 330 F3d 398, 402-03 (6th Cir
2003), cert den, 541US956 (2004);Lambert v. Blackwell, 387
F3d 210, 233 (3d Cir 2004), cert den, 544 US 1063 (2005). 13
rn Randolph dealt with an order of the :vlissouri Supreme Court, providing that
"[ t ]ransfer by this Court is an extraordinary remedy that is not part of the standard
review process for purposes of federal habeas corpus review." 276 F3d at 404.
Adams dealt with a rule of the Tennessee Supreme Court, providing that
"'when [a post-conviction] claim has been presented to the Court of Criminal
Appeals or the Supreme Court, and relief has been denied, the litigant shall be
deemed to have exhausted all available state remedies available for that claim.'"
330 F3d at 401 (quoting Tennessee Supreme Court Rule 39).
Lambert dealt with an order of the Pennsylvania Supreme Court, providing
that in post-conviction cases, "a litigant shall not be required to petition for

Cite as 346 Or 67 (2009) 	89
But see Hills v. Washington, 441F3d1374, 1377-79 (11th Cir
2006) (Carnes, J., concurring) (expressing doubts about the
validity of those holdings).
Petitioner asks us to follow the lead of the Arizona
Supreme Court and other state courts and declare that,
"under existing law, review in this Court is an extraordinary
remedy not 'available' for all classes of cases." Petitioner
argues that discretionary review by this court is not part of
the standard appellate process for Balfour petitioners, or for
petitioners asserting primarily fact-based claims, or for post-
conviction petitioners in general, because this court limits its
review to cases that present legal questions of broader
significance.
For two reasons, we decline petitioner's request. The
first reason is that, under our existing rules, discretionary
review appears to be "available" to post-conviction petition-
ers, at least as that word was used in O'Sullivan. O'Sullivan
held that discretionary review is available as long as a liti-
gant has a right to petition for such review, even ifthe litigant
has no guarantee of receiving it. ORS 2.520 provides that
"[a]ny party aggrieved by a decision of the Court of Appeals
may petition the Supreme Court for review***." ORAP 9.05
likewise, permits "[a]ny party seeking to obtain review of a
decision of the Court of Appeals" to file a petition. Those stat-
utes and rules do not exclude Balfour litigants, petitioners
asserting primarily fact-based claims, or post-conviction peti-
tioners. Any party who wishes to seek review in this court
may do so in accordance with the rules of appellate proce-
dure. Accordingly, review in this court apparently is "availa-
ble" in all classes of cases, in the sense that O'Sullivan used
that term.
We acknowledge that, although review appears to be
"available" for post-conviction petitioners under O'Sullivan,
there is some question as to whether it is available in a prac-
tical sense. First, this court has a long list of criteria that it
uses when it determines whether it will allow review of a
rehearing or allowance of appeal following an adverse decision by the Superior
Court in order to be deemed to have exhausted all available state remedies respect-
ing a claim of error." 387 F3d at 233.

90 	Farmer v. Baldwin
case. This court considers whether the case "presents a sig-
nificant issue of law," whether the issue presented "arises
often," whether a decision in the case would affect many peo-
ple, whether the legal issue is one of state law, and so forth. 14
14 ORAP 9.07 provides:
"The Supreme Court considers the items set out below to be relevant to the
decision whether to grant discretionary review. These criteria are published to
inform and assist the bar and the public. They are neither exclusive nor bind-
ing. The court retains the inherent authority to allow or deny any petition for
review. A petition for review may refer to those items that are relevant to the
case and need not address each listed item.
"(1) Whether the case presents a significant issue of law. A significant
issue oflaw may include, for example:
"(a) The interpretation of a constitutional provision,
"(b) The interpretation of a statute,
"(c) The constitutionality of a statute,
"(d) The legality of an important governmental action,
"(e) The use or effect of a rule of trial court procedure,
"(f) The jurisdiction of the Court of Appeals or the trial court, or
"(g) The application or proposed modification of a principle of common
law.
"(2) Whether the issue or a similar issue arises often.
"(3) Whether many people are affected by the decision in the case.
Whether the consequence of the decision is important to the public, even ifthe
issue may not arise often.
"(4) Whether the legal issue is an issue of state law.
"(5) Whether the issue is one of first impression for the Supreme Court.
"(6) Whether the same or a related issue is pending before the Supreme
Court.
"(7) Whether the legal issue is properly preserved, and whether the case is
free from factual disputes or procedural obstacles that might prevent the
Supreme Court from reaching the legal issue.
"(8) Whether the record does, in fact, present the desired issue.
"(9) Whether present case law is inconsistent (among Court of Appeals
cases, between Court of Appeals cases and Supreme Court cases, or among
Supreme Court cases).
"(10) Whether it appears that trial courts or administrative agencies are
inconsistent or confused in ruling on the issue that the case presents.
"(11) Whether the Court of Appeals published a written opinion.
"(12) Whether the Court of Appeals was divided on the case.
"(13) Whether the Court of Appeals decided the case en bane.
"(14) Whether the Court of Appeals decision appears to be wrong. If the
decision appears to be wrong:
"(a) Whether the error results in a serious or irreversible injustice or in a
distortion or misapplication of a legal principle.

Cite as 346 Or 67 (2009) 	91
The function of this court is to resolve significant issues of
law, preferably issues of state law that will arise often, affect
many people, and fit the other criteria listed under ORAP
9.07. It is our observation that most post-conviction cases,
whether they are filed under ORAP 5.90 or not, do not pres-
ent issues that meet those criteria. Most post-conviction
cases are concerned with specific factual disputes that do not
offer this court an opportunity to announce a broadly appli-
cable rule oflaw.
As a result, this court rarely accepts review of PCR
cases. Granted, this court rarely accepts review of most cases.
Our internal data show that, in the year 2008, this court con-
sidered 1,089 petitions for review and allowed review of 75.
In 2007, this court considered 1,286 petitions for review and
allowed review of 84. Typically, this court allows review of
between six and seven percent of the cases that seek review.
For PCR petitions, however, the numbers are much lower. Of
the petitions that this court received in 2008, approximately
234 concerned post-conviction cases. This court accepted
review of none of those. 15 In light of those facts, one reason-
ably might wonder whether discretionary review is "availa-
ble" for PCR petitioners in any meaningful sense of the word.
Nonetheless, as we stated earlier, review appears to be
"available" under the standard announced in O'Sullivan.
"(b) Whether the error can be corrected by another branch of government,
such as by legislation or rulemaking.
"(15) Whether the issues are well presented in the briefa.
"( 16) Whether an amicus curiae has appeared, or is available to advise the
court."
15 Prior to 2008, the court has granted review of a PCR petitioner's petition for
review only rarely. In one case, this court granted review and reversed the trial
court's judgment dismissing the petition for PCR because the petitioner had been
afforded no opportunity to be heard before the dismissal. Ware v. Hall, 342 Or 444,
154 P3d 118 (2007). This court granted review in three other post-conviction pro-
ceedings but, ultimately, affirmed the dismissal of the post-conviction petition.
Peeples v. Lampert, 345 Or 209, 191P3d637 (2008); Bailey v. Lampert, 342 Or 321,
153 P3d 95 (2007); Miller v. Lampert, 340 Or 1, 125 P3d 1260 (2006).
In two cases, this court granted petitions for review filed by the state in post-
conviction proceedings. In Hinton v. Hill, 342 Or 222, 149 P3d 1205 (2006), this
court affirmed the trial court's decision granting PCR, but reversed the determi-
nation by the Court of Appeals that the facts warranted even broader relief. In
Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006), this court reversed a
determination by the trial court and the Court of Appeals that the petitioner was
entitled to post-conviction relief.

92 	Farmer v. Baldwin
We say "appears to be," however, because in the final
analysis, whether review is "available" is a question of fed-
eral law. Oregon's statutes, case law, and rules of procedure
are silent on the subject. That is the second reason that we
decline 	petitioner's 	request. 	Whether 	a 	prisoner 	has
exhausted his state remedies in compliance with 28 USC §
2254(c) is not a matter that this court addresses. It is a ques-
tion offederal habeas corpus law.
We acknowledge that the Ninth Circuit effectively
has held otherwise in Swoopes by allowing the Arizona
Supreme Court to declare that discretionary review is una-
vailable for federal exhaustion purposes. The Ninth Circuit
holds that the import of O'Sullivan is "that exhaustion is not
required when a state declares which remedies are 'available'
for exhaustion." Swoopes, 196 F3d at 1011. According to that
view, "the question of what constitutes the body of'available
state remedies' is one of state law, not one of federal law
* * *."Adams, 330 F3d at 403. O'Sullivan requires state pris-
oners to file 	petitions for post-conviction relief in state
supreme courts of discretionary review, to exhaust their state
remedies. However, as the Ninth Circuit and other circuits
read it, O'Sullivan also permits those state supreme courts to
say "thanks, but no thanks" to the resulting increase in PCR
petitions, by simply declaring that review is unavailable.
Hills, 441 F3d at 1377-78 (using that phrase to describe the
federal circuits' reading of O'Sullivan).
We also have noted, in the past, that the Ninth
Circuit has required state prisoners to file PCR petitions with
this court to obtain federal habeas review. The Ninth Circuit
imposed that requirement in Batchelor v. Cupp, 693 F2d 859
(9th Cir 1982). Prior to Batchelor, a tacit agreement existed
between 	the 	Oregon 	Public 	Defender's 	office 	and 	the
Attorney General's office. Under that agreement, the Public
Defender would not seek discretionary review after the
Oregon Court of Appeals ruled against a petitioner in a col-
lateral criminal appeal. The Attorney General, in turn, would
not argue in federal habeas cases that the petitioner had
failed to exhaust state remedies by failing to present his
claims to the Oregon Supreme Court. Id. at 861.

Cite as 346 Or 67 (2009) 	93
In Batchelor, the Ninth Circuit chose to strike down
that agreement as inconsistent with federal law. The Ninth
Circuit 	described 	the 	Attorney 	General's 	argument 	as
follows:
"The 	Attorney 	General 	asserts 	that 	the 	Oregon
Supreme Court is a policy-making court, not an error-
correcting court, and that it would be inappropriate to
require the Oregon Supreme Court to review a large num-
ber of petitions in criminal matters to uncover mere trial
errors, even those of constitutional magnitude."
Id. at 862. The Ninth Circuit then rejected that argument:
"Oregon places great value upon limiting the Oregon
Supreme Court's workload, but the public defender should
not be a broker for the cases that will or will not be pre-
sented to the Oregon Supreme Court. Public defenders'
responsibility to represent their clients forcefully cannot be
diluted by an option not to seek review of 'unimportant'
cases. Any system that would vest in the public defender an
option to bypass state Supreme Court review deliberately
while retaining the possibility of federal habeas corpus
review is inconsistent with § 2254.
"We are confident that Oregon can employ creative sum-
mary procedures so that state prisoners may present their
federal constitutional claims to the Oregon Supreme Court
before coming to federal court. In the future, the exhaustion
requirement of§ 2254 will not be deemed satisfied until the
petitioner demonstrates that his claim has been presented
to the state's highest court, or that no state remedy is avail-
able and that the nonavailability was not caused by a delib-
erate bypass."
Id. at 863.
This court opined that the result of the decision in
Batchelor was, in the words of the O'Sullivan Court, an
"increased, unwelcome burden":
"The decision in Batchelor has resulted in a flood of
'exhaustion of remedies' petitions for review in this court.
Despite the confidence of the Court of Appeals for the Ninth
Circuit that 'Oregon can employ creative summary proce-
dures,' it just does not work that way. That decision does
nothing but to require useless expenditure of the resources
of the people of Oregon. The labor and materials of the

94 	Farmer v. Baldwin
Public Defender, the Attorney General and this court are
all uselessly expended in this exhaustion of remedies,
which accomplishes nothing more than a delay in bringing
to the United States District Court for the District of
Oregon whatever the convicted felon intended to assert
there following an affirmance of his conviction by the Court
of Appeals of the State of Oregon."
State v. Nail, 304 Or 359, 362-63, 745 P2d 415 (1987).
In Nail, this court expressed sentiments that are
similar to those expressed by the Arizona Supreme Court in
Sandon. Those are sentiments that we still hold. This court
still predominantly uses its discretionary review authority to
address, in the words of ORAP 9.07, "significant issue[s] of
law," not matters that involve mere error correction. Conse-
quently, we still maintain that there is very little value in
assuming, as the federal "unavailable remedy" principle
seems to assume, that, despite the criteria in ORAP 9.07, this
court will review large numbers of PCR petitions for review
that raise questions regarding mere trial errors, almost none
of which presents significant questions of law. And, we
remain doubtful about the utility of requiring state prisoners
to present this court with claims that, in almost all cases, do
not merit review.
That said, we do not think that, as a state court, we
have the power to dictate what a PCR petitioner must do to
satisfy the exhaustion requirement, because that require-
ment is a matter of federal law, to be decided by the federal
courts. Put differently, we do not have the power to declare
that, under federal law, review is "unavailable"--or, for that
matter, "available"-for post-conviction petitioners, Balfour
litigants, litigants with fact-based questions, or litigants of
any other description. We anticipate that petitioner, in light
of this court's refusal to grant his request to reframe the cer-
tified question, may pursue that line of argument when this
case returns to the Ninth Circuit. As we have said, we think
that the Ninth Circuit is the appropriate forum for argument
as to whether a given Oregon procedure is "available" under
O'Sullivan. Accordingly, we have undertaken the foregoing
discussion of our procedures and case law in the hope that it
will be helpful to the Ninth Circuit, if that court chooses to
address the issue.
The certified question is answered.