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Posted: 04/17/08

Why should I federalize my issues?

All potential federal issues must be properly preserved in the state court. A defendant must fairly present the federal law claim in each appropriate state court. (Baldwin v. Reese (2004) 541 U.S. 27; 124 S.Ct. 1347; 158 L.Ed.2d 64.) Thus, for your client to have any hope of taking issues into federal court, they must be fully “federalized” and exhausted in the state courts first.

The failure to exhaust federal issues and procedural default continues to raise problems for federal defenders pursuing federal constitutional issues following the conclusion of state court proceedings. State appellate lawyers must be mindful of these considerations, lest the rights of their clients be unwittingly compromised.

How do I federalize an issue?

In essence, you must explicitly present your issue as a federal claim by referencing a federal constitutional provision and/or federal case law in your discussion. Putting the federal constitutional provision in the header-title alone is not enough to exhaust a federal claim. Likewise, citing only state cases that discuss or apply federal law is not enough. The specific basis for the federal claim must be presented in the text of the brief. For example, in Dye v. Hofbauer (2005) 546 U.S. 1, the Supreme Court found that the issue was properly federalized when the argument cited to both the federal constitution and federal cases to support the federal claim. (Id. at p. 4.) Putting the federal reference in the header-title is advisable as well.

Will a rule 8.508 “exhaustion petition” preserve my federal issues?

We’re not sure yet whether the federal courts will agree that a 8.508 petiton is sufficient for exhaustion purposes. Certainly the intended purpose of a petition filed pursuant to California Rules of Court, rule 8.508 is to “exhaust” federal issues, however the language of federal cases discussing exhaustion universally agree that, “[b]efore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim.” (Baldwin, supra.) And in Casey v. Moore (2004) 386 F.3d 896, the Ninth Circuit concluded that “to be fairly presented to the state courts a claim must have been been raised throughout the state appeals process, not just at the tail end in a prayer for discretionary review.” Accordingly, many experienced appellate counsel are cautiously renewing all federal claims in an explicit and timely petition for review rather than a 8.508 petition.

What about 4th Amendment search & seizure issues?

Exhaustion petitions should not be filed in search and seizure cases. Fourth Amendment issues are not cognizable in federal habeas corpus, except in extremely limited circumstances. See Stone v. Powell (1976) 428 U.S. 465, 494 [96 S.Ct. 3037; 49 L.Ed.2d 1067]: “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”

Rule 8.508 permits the filing of an abbreviated petition “for the sole purpose of exhausting state remedies before presenting a claim for federal habeas relief.” Filing a petition under this rule requires counsel to state in the petition that the case presents no grounds for review. Since Stone permits no federal habeas review of Fourth Amendment claims, the petition is appellant’s last shot at relief, and a standard petition for review should be filed instead.

How creative do I have to be?

Federalizing an issue is not difficult to do. Admittedly there are some hard-to-characterize errors, but you can use some general federal constitutional principles to get the job done. The tables, links and articles links we have are a great starting point. Happy hunting!