BALDWIN v. REESE

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27 OCTOBER TERM, 2003
Syllabus
BALDWIN v. REESE
certiorari to the united states court of appeals for
the ninth circuit
No. 02–964. Argued December 8, 2003—Decided March 2, 2004
Before seeking federal habeas relief, a state prisoner must exhaust avail-
able state remedies, 28 U. S. C. § 2254(b)(1), giving the State the “ ‘op-
portunity to . . . correct’ alleged violations of its prisoners’ federal
rights,” Duncan v. Henry, 513 U. S. 364, 365, which means he must
“fairly present” his claim in each appropriate state court to alert that
court to the claim’s federal nature. After respondent Reese appealed
his state convictions and sentences and the lower state courts denied
him collateral relief, the Oregon Supreme Court denied him discretion-
ary review. His subsequent federal habeas petition raised, inter alia,
a federal constitutional ineffective-assistance-of-appellate-counsel claim.
The Federal District Court held that Reese had not “fairly presented”
this claim to the state courts because his state appeals court brief had
not indicated that he was complaining about a federal law violation.
The Ninth Circuit reversed, finding the “fair presentation” requirement
satisfied because the State Supreme Court justices had had the opportu-
nity to read the lower court decision before deciding whether to grant
discretionary review. And, had they read that opinion, they would
have, or should have, realized that his claim rested upon federal law.
Held: 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 such
a claim. Pp. 30–34.
(a) Assuming that Reese’s petition by itself did not properly alert the
State Supreme Court to the federal nature of his claim, Reese failed to
meet the “fair presentation” standard. To say that a petitioner “fairly
presents” a federal claim when an appellate judge can discover that
claim only by reading the lower court opinions is to say that those
judges must read those opinions—for otherwise they would forfeit the
State’s opportunity to decide the claim in the first instance. Federal
habeas law does not impose such a requirement. That requirement
would force state appellate judges to alter their ordinary review prac-
tices, since they do not necessarily read lower court opinions in every
case. And it would impose a serious burden upon those judges with
discretionary review powers, whose heavy workloads would be signifi-
cantly increased if they had to read through lower court opinions or
briefs in every instance. Finally, the requirement is unnecessary to

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28 BALDWIN v. REESE
Syllabus
avoid imposing unreasonable procedural burdens upon state prisoners
who may eventually seek federal habeas. A litigant can easily indicate
his claim’s federal law basis in a petition or brief, for example, by citing
to the federal source of law on which he relies or simply labeling the
claim “federal.” Pp. 30–32.
(b) This Court is not wrong to assume that Reese’s petition by itself
failed to alert the State Supreme Court to his claim’s federal nature.
He must concede that his petition does not explicitly say that “ineffec-
tive assistance of appellate counsel” refers to a federal claim, cite any
case that might have alerted the court to his claim’s alleged federal
nature, or even contain a factual description supporting his claim.
Reese asserts that the petition nonetheless “fairly presents” a federal
“ineffective assistance” claim because (1) “ineffective” is a term of art
in Oregon that refers only to federal law claims, and (2) the state-law
standards for adjudicating state and federal “inadequate/ineffective ap-
pellate assistance” claims are identical. This Court rejects his first
argument because he has not demonstrated that state law uses “ineffec-
tive assistance” as referring only to a federal-law, rather than a similar
state-law, claim. However, Reese’s second argument was not addressed
by, or presented to, the Ninth Circuit, and first appeared here in Reese’s
merits brief. Because the issue is complex and lower court consider-
ation would help in its resolution, the Court, without expressing any
view on the issue’s merits, exercises its Rule 15.2 discretion and deems
the argument waived. Pp. 32–34.
282 F. 3d 1184, reversed.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Gins-
burg, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 34.
Hardy Myers, Attorney General of Oregon, argued the
cause for petitioner. With him on the briefs were Peter
Shepherd, Deputy Attorney General, Mary H. Williams,
Solicitor General, and Janet A. Klapstein and Robert B.
Rocklin, Assistant Attorneys General.
Dennis N. Balske, by appointment of the Court, 540 U. S.
806, argued the cause for respondent.*
*Briefs of amici curiae urging reversal were filed for the State of Indi-
ana et al. by Stephen R. Carter, Attorney General of Indiana, and Gary
Damon Secrest, Deputy Attorney General, and by the Attorneys General
for their respective States as follows: William H. Pryor, Jr., of Alabama,

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29 Cite as: 541 U. S. 27 (2004)
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U. S. C.
§ 2254(b)(1), thereby giving the State the “ ‘ “opportunity to
pass upon and correct” alleged violations of its prisoners’
federal rights.’ ” Duncan v. Henry, 513 U. S. 364, 365 (1995)
(per curiam) (quoting Picard v. Connor, 404 U. S. 270, 275
(1971)). To provide the State with the necessary “opportu-
nity,” the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court
with powers of discretionary review), thereby alerting that
court to the federal nature of the claim. Duncan, supra,
at 365– 366; O’Sullivan v. Boerckel, 526 U. S. 838, 845
(1999). This case focuses upon the requirement of “fair
presentation.”
I
Michael Reese, the respondent, appealed his state-court
kidnaping and attempted sodomy convictions and sentences
through Oregon’s state court system. He then brought col-
lateral relief proceedings in the state courts (where he was
represented by appointed counsel). After the lower courts
denied him collateral relief, Reese filed a petition for discre-
tionary review in the Oregon Supreme Court.
The petition made several different legal claims. In rele-
vant part, the petition asserted that Reese had received “in-
effective assistance of both trial court and appellate court
counsel.” App. 47. The petition added that “his imprison-
Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of
Delaware, G. Steven Rowe of Maine, Mike McGrath of Montana, Matt
McNair of Nebraska, Brian Sandoval of Nevada, Wayne Stenehjem of
North Dakota, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma,
D. Michael Fisher of Pennsylvania, Lawrence E. Long of South Dakota,
Greg Abbott of Texas, Mark L. Shurtleff of Utah, William Sorrell of Ver-
mont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of
West Virginia, and Patrick J. Crank of Wyoming; and for the Criminal
Justice Legal Foundation by Kent S. Scheidegger.

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30 BALDWIN v. REESE
Opinion of the Court
ment is in violation of [Oregon state law].” Id., at 48.
It said that his trial counsel’s conduct violated several pro-
visions of the Federal Constitution. Ibid. But it did not
say that his separate appellate “ineffective assistance” claim
violated federal law. The Oregon Supreme Court denied
review.
Reese ultimately sought a federal writ of habeas corpus,
raising, among other claims, a federal constitutional claim
that his appellate counsel did not effectively represent him
during one of his direct state-court appeals. The Federal
District Court held that Reese had not “fairly presented” his
federal “ineffective assistance of appellate counsel” claim to
the higher state courts because his brief in the state appeals
court had not indicated that he was complaining about a vio-
lation of federal law.
A divided panel of the Ninth Circuit reversed the District
Court. 282 F. 3d 1184 (2002). Although the majority ap-
parently believed that Reese’s petition itself did not alert the
Oregon Supreme Court to the federal nature of the appellate
“ineffective assistance” claim, it did not find that fact deter-
minative. Id., at 1193–1194. Rather, it found that Reese
had satisfied the “fair presentation” requirement because the
justices of the Oregon Supreme Court had had “the opportu-
nity to read . . . the lower [Oregon] court decision claimed to
be in error before deciding whether to grant discretionary
review.” Id., at 1194 (emphasis added). Had they read the
opinion of the lower state trial court, the majority added,
the justices would have, or should have, realized that Reese’s
claim rested upon federal law. Ibid.
We granted certiorari to determine whether the Ninth
Circuit has correctly interpreted the “fair presentation”
requirement.
II
We begin by assuming that Reese’s petition by itself did
not properly alert the Oregon Supreme Court to the federal
nature of Reese’s claim. On that assumption, Reese failed

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Opinion of the Court
to meet the “fair presentation” standard, and the Ninth Cir-
cuit was wrong to hold the contrary.
We recognize that the justices of the Oregon Supreme
Court did have an “opportunity” to read the lower court
opinions in Reese’s case. That opportunity means that the
judges could have read them. But to say that a petitioner
“fairly presents” a federal claim when an appellate judge can
discover that claim only by reading lower court opinions in
the case is to say that those judges must read the lower
court opinions—for otherwise they would forfeit the State’s
opportunity to decide that federal claim in the first instance.
In our view, federal habeas corpus law does not impose such
a requirement.
For one thing, the requirement would force state appellate
judges to alter their ordinary review practices. Appellate
judges, of course, will often read lower court opinions, but
they do not necessarily do so in every case. Sometimes an
appellate court can decide a legal question on the basis of
the briefs alone. That is particularly so where the question
at issue is whether to exercise a discretionary power of re-
view, i. e., whether to review the merits of a lower court
decision. In such instances, the nature of the issue may
matter more than does the legal validity of the lower court
decision. And the nature of the issue alone may lead the
court to decide not to hear the case. Indeed, the Oregon
Supreme Court is a court with a discretionary power of re-
view. And Oregon Rule of Appellate Procedure 9.05(7)
(2003) instructs litigants seeking discretionary review to
identify clearly in the petition itself the legal questions pre-
sented, why those questions have special importance, a short
statement of relevant facts, and the reasons for reversal, “in-
cluding appropriate authorities.”
For another thing, the opinion-reading requirement would
impose a serious burden upon judges of state appellate
courts, particularly those with discretionary review powers.
Those courts have heavy workloads, which would be signifi-

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32 BALDWIN v. REESE
Opinion of the Court
cantly increased if their judges had to read through lower
court opinions or briefs in every instance. See National
Center for State Courts, State Court Caseload Statistics
2002, pp. 106–110 (Table 2) (for example, in 2001, Oregon
appellate courts received a total of 5,341 appeals, includ-
ing 908 petitions for discretionary review to its Supreme
Court; California appellate courts received 32,273, including
8,860 discretionary Supreme Court petitions; Louisiana ap-
pellate courts received 13,117, including 3,230 discretion-
ary Supreme Court petitions; Illinois appellate courts re-
ceived 12,411, including 2,325 discretionary Supreme Court
petitions).
Finally, we do not find such a requirement necessary to
avoid imposing unreasonable procedural burdens upon state
prisoners who may eventually seek habeas corpus. A liti-
gant wishing to raise a federal issue can easily indicate the
federal law basis for his claim in a state-court petition or
brief, for example, by citing in conjunction with the claim
the federal source of law on which he relies or a case deciding
such a claim on federal grounds, or by simply labeling the
claim “federal.”
For these reasons, we believe that the requirement im-
posed by the Ninth Circuit would unjustifiably undercut the
considerations of federal-state comity that the exhaustion re-
quirement seeks to promote. We consequently hold that or-
dinarily a state prisoner does not “fairly present” a claim to
a state court if that court must read beyond a petition or a
brief (or a similar document) that does not alert it to the
presence of a federal claim in order to find material, such as
a lower court opinion in the case, that does so.
III
Reese argues in the alternative that it is wrong to assume
that his petition by itself failed to alert the Oregon Supreme
Court to the federal nature of his “ineffective assistance of
appellate counsel” claim. We do not agree.

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Opinion of the Court
Reese must concede that his petition does not explicitly
say that the words “ineffective assistance of appellate coun-
sel” refer to a federal claim. The petition refers to provi-
sions of the Federal Constitution in respect to other claims
but not in respect to this one. The petition provides no cita-
tion of any case that might have alerted the court to the
alleged federal nature of the claim. And the petition does
not even contain a factual description supporting the claim.
Cf. Gray v. Netherland, 518 U. S. 152, 163 (1996); Duncan,
513 U. S., at 366.
Reese asserts that the petition nonetheless “fairly pre-
sents” a federal “ineffective assistance of appellate counsel”
claim for two reasons. First, he says that the word “ineffec-
tive” is a term of art in Oregon that refers only to federal-law
claims and not to similar state-law claims, which, he adds, in
Oregon are solely referred to as “inadequate assistance”
claims. And thus the Oregon Supreme Court should have
known, from his use of the word “ineffective,” that his claim
was federal.
Reese, however, has not demonstrated that Oregon law
uses the words “ineffective assistance” in the manner he sug-
gests, that is, as referring only to a federal-law claim. See,
e. g., Lichau v. Baldwin, 166 Ore. App. 411, 415, 417, 999 P.
2d 1207, 1210, 1211 (2000) (using “ineffective assistance” to
refer to violations of the Oregon Constitution), rev’d in part,
333 Ore. 350, 39 P. 3d 851 (2002). Indeed, Reese’s own peti-
tion uses both phrases—“ineffective assistance” and “inade-
quate assistance”—at different points to refer to what is
apparently a single claim.
Second, Reese says that in Oregon the standards for adju-
dicating state and federal “inadequate/ineffective appellate
assistance” claims are identical. He adds that, where that
identity exists, a petitioner need not indicate a claim’s federal
nature, because, by raising a state-law claim, he would neces-
sarily “fairly present” the corresponding federal claim.

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34 BALDWIN v. REESE
Stevens, J., dissenting
However, the Ninth Circuit did not address this argument,
and our reading of the briefs filed in the Ninth Circuit leads
us to conclude that Reese did not there seek consideration of
the argument in that court. Indeed, the argument first
made its appearance in this Court in Reese’s brief on the
merits. Under this Court’s Rule 15.2, “a nonjurisdictional
argument not raised in a respondent’s brief in opposition to
a petition for a writ of certiorari may be deemed waived.”
Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996) (inter-
nal quotation marks omitted). This argument falls squarely
within the rule. The complex nature of Reese’s claim and
its broad implications suggest that its consideration by the
lower courts would help in its resolution. Hence, without
expressing any view on the merits of the issue, we exercise
our Rule 15.2 discretion and deem the argument waived
in this Court. See, e. g., Roberts v. Galen of Va., Inc.,
525 U. S. 249, 253–254 (1999) (per curiam); South Central
Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999);
cf. Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
For these reasons, the judgment of the Ninth Circuit is
Reversed.
Justice Stevens, dissenting.
It is appropriate to disregard this Court’s Rule 15.2 and
permit respondents to defend a judgment on grounds not
raised in the brief in opposition when the omitted issue
is “predicate to an intelligent resolution of the question
presented.” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (in-
ternal quotation marks omitted). I would do so in this case.
Respondent satisfactorily demonstrates that there is no
significant difference between an ineffective-assistance-of-
appellate-counsel claim predicated on the Oregon Constitu-
tion and one based on federal law. Brief for Respondent
29–35; see also Guinn v. Cupp, 304 Ore. 488, 495–496, 747
P. 2d 984, 988–989 (1988) (in banc). It is therefore clear that

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Stevens, J., dissenting
the state courts did have a fair opportunity to assess re-
spondent’s federal claim. Accordingly, I would affirm the
judgment of the Court of Appeals.