For those attempting to understand habeas, and I’m not sure I’m one: A single citation to the Fourth Amendment in a state brief didn’t qualify as exhaustion of the claim for § 2254(d). Berniard v. Obenland, 2020 U.S. Dist. LEXIS 205986 (W.D. Wash. Nov. 3, 2020)*:
Second, Judge Creatura concluded that Berniard’s second claim is also unexhausted. Dkt. 29 at 9-10. Berniard objects arguing that he cited one authority in his brief to the Washington Court of Appeals that referenced the Fourth Amendment. Dkt. 30 at 3-4. One citation in one brief to the intermediate court of appeal does not qualify as exhaustion. Berniard failed to raise his alleged Fourth Amendment violation to the Washington Supreme Court and instead argued that the lower court’s ruling on harmless error was incorrect. Berniard’s failure means his Fourth Amendment claim is unexhausted. Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004) (“the 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.”). Therefore, the Court adopts the R&R on Berniard’s second claim for relief.
I ran into a federal court of appeals judge on the street in 2010 and told him “I think I finally understand § 2254(d)’s ‘unreasonable application’ requirement” to which he responded: “I don’t think I do yet.” It’s intentionally vague and designed to deny habeas claims. And we all understand that.