claims for relief have been uncovered and evaluated.
The fact that petitioner's attorneys were appointed, rather than privately retained, does not alter the attorneys' duties. The purpose of section 848(q) is "to put indigent defendants as nearly as possible in the same position as nonindigent defendants." United States v. Sanders, 459 F.2d 1001, 1002 (9th Cir. 1972) (interpreting the analogous provisions of the Criminal Justice Act).
Respondent's reliance on In re Lindsey, 875 F.2d 1502 (11th Cir. 1989), as support for the denial of federal funds for a McCleskey investigation is misplaced. In Lindsey, the district court had dismissed the prisoner's section 2254 petition because it contained unexhausted claims. Id. at 1504. The district court then held, and the Eleventh Circuit affirmed, that federal monies under § 848(q) and 18 U.S.C. § 3006A (the Criminal Justice Act) may not be used to assist "in [the] pursuit of state court remedies" for unexhausted claims. Id. at 1505 (emphasis in original).
Central to Lindsey's holding was the court's conclusion that state court proceedings were neither "ancillary to" nor a "proceeding under section 2254." Id. at 1506, 1508. Consequently, petitioner's request for the assistance of a federally appointed lawyer and psychiatric expert fell outside the terms of both section 848(q) and section 3006A.
Yet here, by contrast, petitioner has not presented a mixed petition to this court and is proceeding under section 2254. He is thus entitled to appointed counsel, which he has already received, and such ancillary services as are "reasonably necessary" to his representation. This court is persuaded that, after McCleskey, the research and investigation of new claims is reasonably necessary to the representation of this capital prisoner.
Although the doctrine of exhaustion forbids federal courts from adjudicating a petition that contains any unexhausted claims, Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), it in no way prevents Congress from funding research and investigation in federal court that may touch on unexhausted claims.
Exhaustion "is principally designed to protect the state courts' role in the enforcement of federal law and [to] prevent disruption of state judicial proceedings." Lundy, 455 U.S. at 518. Under the exhaustion doctrine, it is for the state courts, in the first instance, to pass upon and correct alleged violations of prisoners' federal constitutional rights. Id. This requirement minimizes the instances in which federal courts, by deciding constitutional issues, will intrude into state processes. McCleskey, 113 L. Ed. 2d at 544.
The investigation of possible claims under section 848(q) thus does no violence to the exhaustion doctrine, which is limited to the adjudication of constitutional claims. That attorneys Gardner and Derham, while the petition is pending in federal court, may research and investigate unexhausted claims -- in precisely the same manner that privately retained attorneys may research and investigate such claims -- does not intrude on state sovereignty. The federal court in no way has trod on the state court's resolution of the federal constitutional issues. Following the investigation, the prisoner either will decide that a claim exists and pursue it in state court, in accordance with the exhaustion requirement, or will decide the claim is not tenable and abandon it.
The rule that district courts should dismiss petitions that contain unexhausted claims does not mean that a district court should dismiss a petition merely because the attorney's thought processes turn to new claims. The latter rule would prove unduly burdensome both for counsel and for the court. Because legal claims do not spring fully grown like Athena from the head of Zeus, an attorney cannot determine, at the outset, whether his thinking and research will result in an exhausted or unexhausted claim. Counsel's duty to represent his client would be severely compromised if his talents and zeal, not to mention his compensation, were limited to exhausted claims. Similarly, it would be extraordinarily taxing for the district court to set the point at which the attorney's efforts were so directed to the pursuit of an unexhausted claim that compensation would be disallowed. The Supreme Court, in fact, has already warned district courts against engaging in the "difficult if not impossible task" of sorting exhausted from unexhausted claims.
Lundy, 455 U.S. at 519.
Once counsel has had the opportunity to conduct preliminary research and investigation sufficient to identify a viable claim, these proceedings may be stayed pursuant to Local Rule 296-8(e) in order to permit exhaustion. At that point, petitioner will then be able to make an informed choice as to whether to pursue the claim in state court or whether to waive it. Such a procedure fully accords with the guideline that "all issues raised by the petitioner be ruled upon by the [state] Supreme Court prior to any ruling by this court." Campbell v. Blodgett, 927 F.2d 444, 445 (9th Cir. 1991).
Comity and federalism address the federal court's consideration of the merits of a claim; we have found no case that extends these principles to the attorney's investigative process. Nothing would be gained by returning the case to state court every time counsel fancies the existence of an unexhausted claim. There is ample time to do that in the event petitioner chooses to assert such a claim. "Federalism" does not require a game of ping-pong between the state and federal courts.
After two years of effort, Coleman has presented a Second Amended Petition containing thirteen exhausted claims. We have previously granted petitioner the time to conduct an investigation in order to finalize his petition as required by McCleskey. Today we hold that Congress has granted him, by statute, the financial resources necessary to make that opportunity meaningful.
IT IS SO ORDERED.