The exhaustion of remedies is a legal principle requiring a state prisoner to try all state remedies before filing a writ of habeas corpus in a federal court. It provides a balance between state and federal court powers. A federal court can't review a state conviction until state courts have had a chance to correct any constitutional errors.

Purpose of Exhaustion Requirement

The purpose of exhaustion is not to create a hurdle on the way to federal court. Its purpose is to put claims in an appropriate forum, where worthy claims may be resolved and unfounded litigation stopped before it goes to federal court.

The exhaustion requirement has several benefits, including:

  • It increases the familiarity of state courts with federal law
  • It minimizes friction between state and federal courts
  • It maximizes the possibility that all of the facts and law necessary for a federal habeas petition will be presented to the state courts

Exhausting State Remedies

A petitioner hasn't exhausted state remedies if he has a right under state law to raise the alleged constitutional error in a state proceeding.

Dismissal of Petition

The petitioner must show that he tried all of the possible state remedies or that exhaustion should be excused. Failure to do this means the petition will be dismissed.

The Fair Presentation Requirement

In order to have exhausted state remedies the substance of the claim must first be presented to the state courts. This requirement is satisfied if the state's highest court has had a fair chance to rule on the claim. The petitioner must alert the state courts about the substance of the claim that state custody violates the US Constitution or a federal law. A claim based upon state law isn't enough.

Letting a state court know the nature of a claim is usually done by raising the claim in a written document, called a brief, to a state appellate court. Exhaustion only requires the petitioner raise the issue before the state court. It isn't necessary for the court to actually address the claim. A claim is exhausted even if the state court denies review or fails to discuss the issue in its opinion.

Exceptions to the Exhaustion Requirement

If state remedies would be ineffective, a habeas corpus petitioner doesn't have to pursue them. Resort to state remedies isn't required if there's no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.

Delay Caused by State

The failure to exhaust remedies may be excused when the petitioner has attempted to use state procedures but there has been a long delay by the state in acting on petitioner's case. Delay is measured in months, not years. There's no hard and fast rule, but generally any delay longer than 18 months is too long.

Mixed Petitions Containing Exhausted and Unexhausted Claims

A habeas petition containing claims that have been exhausted as well as claims that haven't is called a mixed petition. Such a petition must be dismissed to permit the petitioner either to exhaust the unexhausted claims or to delete the unexhausted claims and refile the petition.

Questions for Your Attorney

  • Will a federal court grant me a writ of habeas corpus if I haven't exhausted my state remedies?
  • What are grounds for dismissal of a habeas corpus petition?
  • What happens if a petition contains some claims that have been brought up before a state court and also some that haven't been brought up before a state court?