Exhaustion in the 11th Circuit

Last week in Ogle v. Johnson, No. 06-11074, the 11th Circuit reversed and remanded the district court's denial of habeas relief, holding that a pro-se petitioner's claims of ineffective assistance of counsel were exhausted when the claims were generally alleged in a state habeas petition and later expanded through briefs and testimony. There were eight claims of ineffective assistance of counsel raised; seven were remanded while the eighth was defaulted.

As with many exhaustion cases, Ogle is heavily fact and record based. However, I did note this line from the court, relating to the one ineffectiveness claim that was defaulted: "At oral argument in this appeal, Ogle's appointed counsel admitted that Ogle waived this issue, and we appreciate her candor." Usually those are the types of lines given to counsel when they are about to lose, not when they win on seven of eight issues! For an example, see the oral argument in Whorton v. Bockting, here.