This is the kind of opinion that seems fairly sleazy to me. Judge Kleinfeld holds that the defendant hasn't exhausted her federal habeas claim because she only raised state claims in her state proceedings. Since the defendant clearly raised federal claims before the Alaska Court of Appeals, Judge Kleinfeld has to do some fancy footwork to argue -- fairly lamely -- that maybe counsel deliberately chose not to raise a federal claim in the petition for review before the Alaska Supreme Court. This seems pretty darn implausible to me, especially given the nature of the underlying claim (ineffective assistance). Why would counsel raise federal claims below and then suddenly shift gears and intentionally waive them in the petition for review (especially since the petition for review is unlikely to be granted, and hence the only real result of such a decision would be to waive federal habeas!)? Judge Kleinfeld's rationalization here just doesn't make sense.
But let's assume -- and it's possible -- that even if the attorney had intended to assert a federal claim, it wasn't in fact properly asserted. This portion of Judge Kleinfeld's opinion is indeed plausible; after all, the defendant only cited a single federal case in the petition for review. If Judge Kleinfeld had ended the opinion there, I wouldn't have a big problem with the decision.
But here's the sleazy move -- one that's fairly common by particular judges on the court, but that nonetheless seems wrong. In the last paragraph of the opinion, after reciting the (entirely applicable) general rule that you have to exhaust your federal claim by raising it in all levels of the state system, Judge Kleinfeld says: "Briefing a case is not like writing a poem . . . . Poets may use ambiguity, but lawyers use clarity. . . . It has to be clear from the petition filed at each level of the state court system that the petitioner is claiming [] violation of the federal constitution." (emphasis added); see also the last sentence of the opinion (holding that the petitioner must have "explicitly alerted" the state court to the federal claim).
Okay, you could have such a rule -- that the petition has to "clearly" raise the federal claim. But that's not, in fact, the law; indeed, precedent is quite to the contrary, and repeatedly finds exhaustion when the federal claim is far, far from clearly asserted. Judge Kleinfeld makes an oblique reference to this precedent when he says that raising the federal claim "may not take much," but the sleaze move nonetheless exists; he's already made sure to include in his opinion a sentence that expressly says that the federal claim has to be "clear" in order to be exhausted. The point of doing so is to change the law; indeed, to change it in a manner that's not noticed at the time, but that nonetheless can be quoted and relied upon by both litigants and similarly-inclined judges in the future.
One could have the view that this is merely an innocuous, off-the-cuff sentence. But that's definitely not my take. Especially in a case like this.
