Farmer v. Baldwin ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE EDWARD FARMER,  No. 06-35635
Petitioner-Appellant,
v.  D.C. No.
CV-02-01565-ALA
GEORGE H. BALDWIN,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted July 1, 2007
Submission withdrawn August 15, 2007
Resubmitted March 30, 2009
Portland, Oregon
Filed April 29, 2009
Before: Alfred T. Goodwin, Stephen Reinhardt and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Goodwin
5033
FARMER v. BALDWIN 5035
COUNSEL
Lisa Hay, Assistant Federal Public Defender, Portland, Ore-
gon, for the petitioner-appellant.
Erin C. Lagesen, Assistant Attorney General, Salem, Oregon,
for the respondent-appellee.
OPINION
GOODWIN, Circuit Judge:
After hearing oral argument in this case, we submitted a
certified question to the Oregon Supreme Court. See Farmer
v. Baldwin, 497 F.3d 1050 (9th Cir. 2007) (order). On March
26, 2009, the Oregon Supreme Court answered the certified
question. Farmer v. Baldwin, __ Ore. __, 2009 Ore. LEXIS
13 (Or. 2009). In light of the Oregon Supreme Court’s
answer, we reverse the judgment dismissing the petition, and
remand for further proceedings.
Because the factual and procedural history of this case is
detailed in our certification order, Farmer, 497 F.3d at
1052-53, we briefly summarize it here. George Edward Far-
mer (“Farmer”) appealed the district court’s dismissal of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254,
arising from his conviction in Oregon state court on one count
of murder. The district court held that Farmer had failed to
exhaust his federal claims because he did not “fairly present”
them to the Oregon Supreme Court during his state post-
conviction relief proceedings, and that federal habeas review
was therefore unavailable under the Antiterrorism and
5036 FARMER v. BALDWIN
Effective Death Penalty Act of 1996. The district court further
determined that Farmer’s claims were untimely under Ore-
gon’s procedural rules and were therefore procedurally
defaulted for purposes of federal habeas review. It also deter-
mined that Farmer failed to show cause and prejudice neces-
sary to cure this procedural default, and dismissed his
petition.
[1] On appeal, Farmer argued that he had complied with
Oregon procedural rules and fairly presented his federal
claims to the Oregon Supreme Court by filing a petition for
review that referred to a copy of the brief he had filed with
the Oregon Court of Appeals in his post-conviction relief pro-
ceedings. He alleged that his appellate brief substantially
complied with the procedures set out in State v. Balfour, 311
Ore. 434, 814 P.2d 1069 (Or. 1991), and that Oregon law did
not bar him from incorporating by reference his appellate
brief into his petition for review. We determined that Far-
mer’s argument raised an important and unresolved issue of
Oregon law, and certified the following question to the Ore-
gon Supreme Court:
Whether, under its rules or practice, the Oregon
Supreme Court would deem a federal question not
properly raised before it, when that question has
been presented by means of an attachment to a Bal-
four 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.
Farmer, 497 F.3d at 1055-56. The Oregon Supreme Court
answered:
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
FARMER v. BALDWIN 5037
the attachment serves as Section B of said brief, and
the petitioner incorporates that same brief by refer-
ence into his petition for review.
Farmer, __ Ore. at __, 2009 Ore. LEXIS 13 at *24. The Ore-
gon Supreme Court further stated that Farmer’s “petition for
review complied with the appellate rules” and his “incorpora-
tion by reference of arguments from his appellate brief is a
permissible method of raising an issue in [the Oregon
Supreme Court].” Id. at *22-23, 25.
[2] In light of the Oregon Supreme Court’s answer to the
certified question, we hold that the district court erred in rul-
ing that Farmer had not fairly presented his federal claims and
was therefore barred from seeking federal habeas review.
Therefore, we reverse the district court’s judgment and
remand with instructions that it consider Farmer’s petition for
a writ of habeas corpus ripe for review on the merits.
REVERSED AND REMANDED.