Section 40 Exhaustion of State Remedies

• Library: Remedies 2006

A writ of habeas corpus cannot be granted unless it appears that “the applicant has exhausted the remedies available in the courts of the State” or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838 (1999). The petitioner must have presented the state courts both with “controlling legal principles” on which the petitioner relies and with “the facts bearing upon [the] constitutional claim.” Picard v. Connor, 404 U.S. 270 (1971). All claims in the petition must have been exhausted or else the petition should be dismissed. Rose v. Lundy, 455 U.S. 509 (1982); Dukes v. Lockhart, 769 F.2d 504
(8^th Cir. 1985); White v. Wyrick, 651 F.2d 597, 598 (8^th Cir. 1981).

The Eighth Circuit discussed exhaustion in Odem v. Hopkins,
192 F.3d 772 (8^th Cir. 1999). “Before a federal court can entertain a claim in a habeas petition, that same claim has to have been raised in the prior state court proceedings or it must be dismissed for failure to exhaust available state court remedies.” Id. at 774; see Keithley v. Hopkins, 43 F.3d 1216, 1218 (8^th Cir. 1995). The exhaustion requirement is satisfied if the prisoner gave the state courts a “fair opportunity” to apply controlling legal principles to the facts that are relevant to the prisoner’s constitutional claim. See Picard, 404 U.S. at 276–77. Thus, in addition to the recitation of all the facts necessary for the state court’s evaluation of the federal claim, the petitioner has to “fairly present” the “substance” of the federal claim. See Odem, 192 F.3d at 774–75; Anderson v. Harless, 459 U.S. 4, 6 (1982). A claim has not been fairly presented if the state court must read beyond a petition or brief that does not alert it to the presence of a federal claim in order to find material that shows a federal claim. Baldwin v. Resse, 541 U.S. 27, 32 (2004).

State remedies are not exhausted if the petitioner has a right under state law to raise the question by any available procedure. 28 U.S.C. § 2254(c). An application for transfer to the Supreme Court is not required.

A failure to raise the constitutional issue in time for the state court to take remedial action is also a waiver of a right to seek habeas relief. Francis v. Henderson, 425 U.S. 536 (1976). Exhaustion of state remedies only includes remedies that were open at the time the habeas corpus...