United States v. 2005-02-08 | 03-35083 | GALVAN VTHE ALASKA DEPARTMENT OF CORRECTIONS | precedential…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CINDY LEE GALVAN,
Petitioner, No. 03-35083
v. D.C. No.
 CV-01-00285-JWSTHE ALASKA DEPARTMENT OF
CORRECTIONS, OPINION
Respondent. 
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
December 1, 2003—Seattle, Washington
Submission Vacated December 15, 2003
Resubmitted April 16, 2004
Filed February 9, 2005
Before: Andrew J. Kleinfeld, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Kleinfeld
1619

-- 1 of 12 --

COUNSEL
Mary C. Geddes, Assistant Federal Defender, Anchorage,
Alaska, for the petitioner.
Kenneth M. Rosenstein, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, Alaska, for the
respondent.
OPINION
KLEINFELD, Circuit Judge:
This habeas corpus appeal turns on exhaustion.
1621 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 2 of 12 --

Facts
We take the facts from the Alaska Court of Appeals memo-
randum opinion and judgment affirming on direct appeal.1
In 1989, Galvan and her boyfriend, Anthony Garcia, killed
a man in Colorado and fled to Alaska. A week after arriving
in Juneau, they robbed and murdered another man. This case
arises out of that Juneau murder.
Galvan’s sentence was harsher than the Alaska “bench-
mark” for second degree murder because the judge considered
her unusually dangerous and because her crime “approached
the blameworthiness” of first degree murder. The dangerous-
ness had to do with Galvan’s history as well as the crime for
which she was being sentenced. According to charges pend-
ing in Colorado, Galvan had brought another woman, helpless
from intoxication, home from a bar, where she beat her with
brass knuckles, pounded her head on the floor, and stole her
money. Then, with the aid of a juvenile, Galvan took off the
victim’s clothes, cut off her hair, poured salt into her wounds,
and threw her naked into the February night.
A few months later, still in Colorado, Galvan and her boy-
friend reacted to what they felt to be disrespect by murdering
a man. Galvan lured the man into a bathroom, her boyfriend
came up behind the victim and beat him to death with a ham-
mer, and Galvan cleaned the bathroom to obliterate the evi-
dence.
The Juneau murder occurred a week after the couple
arrived in Alaska. Galvan and her boyfriend needed money
and decided that a robbery was the way to get it. Galvan rang
the doorbell of a secluded home. When the victim opened the
door, she and her boyfriend forced their way in. The boy-
1Galvan v. State, Mem. Op. & J. No. 2456 (Alaska App., July 8, 1992)
(unpublished).
1622 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 3 of 12 --

friend then stabbed the victim twenty times as he begged for
his life, while Galvan took the victim’s money from his wal-
let.
Though Galvan was charged with first degree murder, her
lawyer got her a plea agreement for second degree murder.
But after she pleaded no contest, she started a campaign—still
continuing fifteen years after the murder—of blaming her
conviction and sentence on her attorneys, a roll call of distin-
guished lawyers, two of whom have since been appointed to
the Superior Court of Alaska. (She has also sought post-
conviction relief on numerous other grounds, not raised in, or
relevant to her federal habeas petition.) The lawyer who nego-
tiated her plea moved to withdraw as counsel after Galvan
sought to have the plea set aside on account of ineffective
assistance of counsel. A second retained lawyer moved to
withdraw because he had accepted Galvan as a client on con-
dition that she not pursue what he saw to be a meritless claim
of ineffective assistance, but then she persisted in urging it.
The court appointed a third lawyer. Galvan then repeatedly
and unsuccessfully moved to set aside her plea. Testimony
was taken in the Alaska Superior Court on Galvan’s claim of
ineffective assistance, findings of fact were made (including
that Galvan was not credible “on virtually every important
debated statement of fact”), and the claim was decided against
her, and affirmed on appeal. Galvan petitioned the Alaska
Supreme Court to review the portion of the Alaska Court of
Appeals decision that affirmed her sentence, but not the por-
tion that allowed the plea to stand despite her claim of inef-
fective assistance of counsel.
Galvan then sought post-conviction relief in the Alaska
courts, claiming that ineffective assistance of counsel had led
her to plead guilty to second degree murder. The Alaska
Superior Court denied her petition. She then appealed.
Although Galvan mentioned in the first sentence of her brief
to the Alaska Court of Appeals that she had a right to counsel
under the federal and state constitutions, all her arguments
1623 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 4 of 12 --

were based on Alaska law, specifically that the various Alaska
Supreme Court and Alaska Court of Appeals cases laying out
the contours of the right to counsel were not satisfied. The
Court of Appeals carefully examined all the evidence and
noted that although her lawyer told Galvan that, to get a
favorable sentence, she should cooperate with the authorities
and distance herself from her boyfriend, Galvan did the oppo-
site. She continued to exchange love letters with her boyfriend
while awaiting sentencing, and talked with her boyfriend
about “taking care” of one of the state’s witnesses. There is
nothing in the Court of Appeals decision regarding federal
constitutional law.
Galvan then petitioned for review to the Alaska Supreme
Court. This petition controls the outcome of her federal case,
because, whether she had raised it or not in the lower courts,
Galvan had to raise her federal claim in her petition to Alas-
ka’s highest court to exhaust her federal constitutional claim.
In a well-written, counseled petition (by the Alaska Public
Defender Agency), Galvan makes these arguments: (1) her
lawyer in the trial court gave her overly optimistic advice
regarding the sentence she could expect; (2) she should have
been allowed to withdraw her plea because the advice
amounted to ineffective assistance of counsel; (3) her lawyer
did not warn her that the sentencing judge might restrict her
parole eligibility; and (4) her lawyer gave her bad advice that
caused her to file her motion to withdraw her plea later than
she should have, making it harder to win. Of the twelve cita-
tions to cases in her petition, all but one are to decisions of
the Alaska Supreme Court and the Alaska Court of Appeals.
For her explanation of what constitutes ineffective assistance
of counsel and what remedies are appropriate, Galvan relies
entirely upon Alaska law. The petition is mostly a careful
examination of the Alaska standards for what an attorney
must tell a client.
The petition’s only mention of federal law comes in the
1624 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 5 of 12 --

course of distinguishing an Alaska case. The Alaska case2
held that a first degree murderer’s erroneous belief that he
would be eligible for parole during the first twenty years of
his sentence did not make his plea involuntary.3 Galvan
sought to withdraw her plea on the ground, among others, that
she did not realize when she entered it that the Superior Court
might restrict her eligibility for parole. Galvan argued that the
Alaska case should be distinguished because it involved a
defendant’s “unilateral subjective impression,” but “there is a
difference between not giving any advice and giving misinfor-
mation,” as she claimed occurred in this case. To illustrate
this factual distinction, Galvan devoted this one sentence in
her brief to discussing a federal case: “In Strader v. Garrison,4
the fourth circuit held that when a defendant is grossly mis-
advised as to parole eligibility, and is prejudiced by reliance
on the incorrect advice, plea withdrawal is the appropriate
remedy.” Galvan’s petition does not mention the Sixth
Amendment to the United States Constitution.
The Alaska Supreme Court denied her petition, and Galvan
filed this federal petition for a writ of habeas corpus. The
well-written petition by the federal defender clearly claims,
citing federal cases, that Galvan’s federal constitutional rights
to the effective assistance of counsel and to due process of
law were violated by her lawyer’s representation and her con-
sequent “involuntary” guilty plea. The district court dismissed
the petition for failure to exhaust state remedies, and Galvan
appeals.
Analysis
[1] Congress has commanded that, where there is an avail-
able and effective state corrective process, and a federal peti-
tioner for a writ of habeas corpus has not exhausted the
2Risher v. State, 523 P.2d 421, (Alaska 1974).
3Id. at 426.
4Strader v. Garrison, 611 F.2d 61, 64-65 (4th Cir. 1979).
1625 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 6 of 12 --

remedies available in the state courts, the petition “shall not
be granted.”5 The Supreme Court has explained this exhaus-
tion requirement as being designed to further “comity” by
giving the “state courts a full and fair opportunity to resolve
federal constitutional claims before those claims are presented
to the federal courts.”6
[2] Galvan argues that she made her partial reliance on fed-
eral constitutional law clear to the intermediate Alaska Court
of Appeals. Had she failed to do so, that would go toward lack
of exhaustion, but her having done so cannot establish
exhaustion. Rather, Galvan must have exhausted her claim in
her petition to the Alaska Supreme Court. The Court in
O’Sullivan v. Boerckel holds that “a state prisoner must pre-
sent his claims to a state supreme court in a petition for dis-
cretionary review in order to satisfy the exhaustion require-
ment.”7 Likewise, Baldwin v. Reese holds that a “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.”8 The Supreme Court in Baldwin reversed a decision
of ours that had held it was enough that the prisoner had
raised the claim in a lower court whose opinion the state
supreme court could read. The Supreme Court held that the
petitioner had to alert the state supreme court to the claim, and
could not rely on the opinion of the intermediate appellate
court to do so.9 Because Galvan did not claim in her petition
to the Alaska Supreme Court that her federal constitutional
right had been violated, it does not matter what she did in the
Alaska Court of Appeals. That she did assert a Sixth Amend-
ment claim in the Alaska Court of Appeals, but did not in her
528 U.S.C. § 2254(b)(1).
6O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
7Id. at 839-40.
8Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1349 (2004) (internal
quotation marks and citations omitted).
9Id. at 1351.
1626 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 7 of 12 --

petition to the Alaska Supreme Court, supports an inference
that she chose not to exhaust her federal claim in state court
for strategic reasons, not that she did exhaust.10
Galvan also argues that the leading Alaska case on ineffec-
tive assistance, Risher v. State, was derived from and is the
same as the federal constitutional requirement. That argument
is unpersuasive for three reasons.
[3] First, Galvan did not cite Risher in her petition to the
Alaska Supreme Court. She cited it only to the Alaska Court
of Appeals. Second, citation to a state case that discusses fed-
eral precedents does not necessarily put the state supreme
court on notice that the petitioner is claiming a violation of a
federal right. We so held in our en banc decision in Peterson
v. Lampert. In Peterson, counsel had cited two state cases
analyzing the federal constitutional right, but we held that “a
fair reading of Peterson’s counseled petition was that the
cases were cited only to support a state-law claim.”11 Among
our reasons were that “such omission may be a strategic
choice by counsel” and that “[a]ll petitions must be read in
context and understood based on the particular words used,
and we therefore cannot lay down a simple, bright line rule.”12
[4] Third, had the Alaska Supreme Court wondered
whether, by citing Risher, Galvan meant to claim a violation
of her federal Sixth Amendment right to the effective assis-
tance counsel, a reading of Risher would have suggested that
10Peterson v. Lampert, 319 F.3d 1153, 1156, 1159 (9th Cir. 2003) (en
banc) (“Especially here, where a counseled petitioner raised both the state
and federal issues in his briefing before the court of appeals, but then
omitted the federal issue before the Oregon Supreme Court, there is reason
to conclude that such omission may be a strategic choice by counsel not
to present the federal issue in the hope of convincing the Oregon Supreme
Court to exercise its discretion to review.”).
11Id.
12Id.
1627 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 8 of 12 --

she was not. Risher came down ten years before Strickland v.
Washington,13 and adopts for Alaska a different standard than
Strickland. Risher cites past Alaska Supreme Court decisions,
a Cornell and Virginia Law Review article, and non-binding
cases from the Third, Sixth, and District of Columbia Circuits,
as well as cases from the Southern District of New York, and
the Supreme Court of West Virginia, to promulgate its stan-
dard. And Risher, as we explain below, formulates a prejudice
standard entirely different from, and more liberal to a peti-
tioner than, the federal standard. Although Risher held that
the defendant’s rights under both the Alaska and United
States Constitutions had not been violated, because Risher
establishes state law quite different from federal law,
Galvan’s citation to Risher emphatically emphasized that her
claim was brought under the Alaska Constitution, not the
United States Constitution.
[5] Galvan’s non-federalization of her ineffective assistance
claim may well have been, just as we noted in Peterson, a
strategic choice, not an accidental omission. Alaska law in
this respect, as in others,14 is more protective of defendants’
rights than the federal constitutional minimum. The Risher
standard of ineffective assistance is that the lawyer must per-
form at least as well as a lawyer with “ordinary training and
skill in the criminal law,”15 while Strickland requires only that
13Strickland v. Washington, 466 U.S. 668 (1984).
14See, e.g., RLR v. State, 487 P.2d 27, 35 (Alaska 1971) (holding that
in Alaska, “children are constitutionally entitled to a jury trial in the adju-
dicative state of a delinquency proceeding”); Ravin v. State, 537 P.2d 494,
511 (Alaska 1975) (holding that “possession of marijuana by adults at
home for personal use is constitutionally protected”); State v. Glass, 583
P.2d 872, 875 (Alaska 1978) (holding that under the Alaska Constitution,
“one who engages in private conversation is similarly entitled to assume
that his words will not be broadcast or recorded absent his consent or a
warrant”); State v. Jones, 706 P.2d 317, 322-24 (Alaska 1985) (refusing
to abandon the more protective Aguilar-Spinelli two-prong probable cause
test, see Spinelli v. United States, 393 U.S. 410 (1969), for the Illinois v.
Gates, 462 U.S. 213 (1983), “totality of the circumstances” test).
15Risher, 523 P.2d at 424.
1628 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 9 of 12 --

the lawyer did not make “errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed [t]he defendant by
the Sixth Amendment,”16 i.e., that counsel’s conduct “on the
facts of the particular case, viewed as of the time of counsel’s
conduct . . . in light of all of the circumstances, were outside
the wide range of professionally competent assistance.”17 The
Risher standard of prejudice is that the defendant need only
establish “a reasonable doubt that the incompetence contrib-
uted to the outcome,”18 while Strickland requires that “the
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”19 Thus there would
not be much chance of establishing a federal constitutional
violation if petitioner could not establish a state constitutional
violation. A capable attorney might well seek to keep an
Alaska court’s attention on the Alaska precedents, and avoid
confusing the issue with the generally less favorable federal
authorities.
This is not to say that without petitioner’s help, the Alaska
Supreme Court could not have been expected to spot the issue
of ineffective assistance of counsel under the federal constitu-
tion. Of course it could, but any judge reading the brief, and
noticing its failure to mention the Sixth Amendment and
Strickland, would infer that petitioner elected to make her
claim under the state constitution rather than the federal con-
stitution. “[T]he petitioner must alert the state court to the fact
that the relevant claim is a federal one without regard to how
similar the state and federal standards for reviewing the claim
may be or how obvious the violation of federal law is.”20
16Strickland, 466 U.S. at 687.
17Id. at 690.
18Risher, 523 P.2d at 425.
19Strickland, 466 U.S. at 694.
20Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as
amended, 247 F.3d 904 (9th Cir. 2001).
1629 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 10 of 12 --

Courts generally do not decide issues not raised by the parties.21
If they granted relief to petitioners on grounds not urged by
petitioners, respondents would be deprived of a fair opportu-
nity to respond, and the courts would be deprived of the bene-
fit of briefing, so generally courts limit themselves to
resolving the issues the parties put before them, as opposed to
the issues they spot outside what the parties elect to raise.
[6] As for petitioner’s single sentence with its single cita-
tion to federal law in her petition to the Alaska Supreme
Court, we read it the same way that the magistrate judge and
the district court did — that the Fourth Circuit case, Strader,
was cited to support Galvan’s argument that her lawyer per-
formed below the Alaska minimum standard. She did not say
that she was deprived of her Sixth Amendment right to the
effective assistance of counsel, and that that contention was
supported with the Fourth Circuit case. The problem with
Galvan’s argument is not particularly the sparseness of federal
law in her petition to the Alaska Supreme Court. Rather, the
problem is the context in which Galvan cited her sole federal
authority. Galvan said, in the context of an argument about
Alaska constitutional law, that an Alaska case on the collat-
eral consequences of a conviction should be distinguished on
the basis of a factual difference, the importance of which was
illustrated by the Fourth Circuit case. Thus Galvan’s case for
exhaustion is weaker than the one we rejected in Lyons, where
we held that a “general reference in [a] state habeas petition
to . . . ‘ineffective assistance of counsel’ . . . lacked the speci-
ficity and explicitness required for the purported federal con-
stitutional dimension of such claims to have been ‘fairly pre-
sented’ to the [state] courts.”22
21See, e.g., Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska
1992) (refusing to decide claims that a party raised below, but did not
address in the party’s brief to the Alaska Supreme Court).
22Lyons, 232 F.3d at 669-70.
1630 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 11 of 12 --

[7] Briefing a case is not like writing a poem, where the
message may be conveyed entirely through allusions and con-
notations. Poets may use ambiguity, but lawyers use clarity.
If a party wants a state court to decide whether she was
deprived of a federal constitutional right, she has to say so. It
has to be clear from the petition filed at each level in the state
court system that the petitioner is claiming the violation of the
federal constitution that the petitioner subsequently claims in
the federal habeas petition. That is, “the prisoner must ‘fairly
present’ his claim in each appropriate state court . . . thereby
alerting that court to the federal nature of the claim.”23 If she
does not say so, then she does not “fairly present” the federal
claim to the state court. It may not take much,24 and as we
held in Peterson, the inquiry is not mechanical, but requires
examination of what the petitioner said and the context in
which she said it. To exhaust a federal constitutional claim in
state court, a petitioner has to have, at the least, explicitly
alerted the court that she was making a federal constitutional
claim. Galvan did not.
AFFIRMED.
23Baldwin, 124 S. Ct. at 1349 (emphasis added).
24C.f. Baldwin, 124 S. Ct. at 1351 (“A litigant wishing to raise a federal
issue can easily indicate the federal basis for his claim in a state court peti-
tion or brief, for example, by citing in conjunction with the claim the fed-
eral source of law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim ‘federal.’ ”).
1631 GALVAN v. ALASKA DEPARTMENT OF CORRECTIONS

-- 12 of 12 --