Remand for Capital Habeas Petitioner

Fairchild v. Workman, -- F.3d --, 2009 WL 2710320 (10th Cir. 8/31/09) - remand of Okla death penalty case for district court to determine whether to grant stay to permit Mr. Fairchild to return to state court to exhaust his unexhausted ineffective assistance of counsel claim. While Mr. Fairchild previously raised an IAC claim in state postconviction proceeding re: counsel's failure to present evidence of organic brain damage, it was much less specific and powerful than his federal IAC claim. Because he did not fairly present the substance of his federal claim to the state court, he did not satisfy the exhaustion requirement.

The state failed to prove that the Okla rule requiring that IAC claims generally be raised on direct appeal was adequately and evenhandedly applied. It therefore did not carry its burden of establishing that the state procedural bar was an adequate and independent ground precluding habeas relief.