apparently misunderstood the exhaustion requirement
and filed three petitions for habeas corpus, all containing
unexhausted claims.
F. Affirmative Defense
The statute of limitations of 28 U.S.C. § 2244(d) is
an affirmative defense to be pleaded by the respondents.
Acosta v. Artuz, 221 F.3d 117, 121-22 (2d Cir. 2000). It
is not inappropriate, however, for the federal court to raise
the timeliness issue sua sponte; “the statute of limitation
implicates the interests of both the federal and state
courts, as well as the interests of society... .” Id. at 123.
VIII. EXHAUSTION OF STATE REMEDIES
Whether a petitioner has exhausted available state
remedies is a threshold question in every case in which a
petitioner challenging a state conviction seeks habeas
corpus relief. Mayberry v. Petsock, 821 F.2d 179, 182-83
(3d Cir.), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98
L.Ed.2d 362 (1987); Hull v. Kyler, 190 F.3d 88, 97 (3d.
Cir. 1999); Gibson v. Scheidemantel, 805 F.2d 135, 138
(3d Cir. 1986). The exhaustion requirement furthers the
policies of comity and federalism by giving state courts
the first opportunity to pass upon federal constitutional
claims. Granberry v. Greer, 481 U.S. 129, 107 S.Ct.
1671, 95 L.Ed.2d 119 (1987); Rose v. Lundy, 455 U.S.
509, 516-18, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Unless the state courts had the opportunity to consider
a petitioner’s constitutional complaint and rectify any
errors in his conviction, or unless a petitioner
demonstrates that there is no state forum available to
consider his complaint, the federal court may not hear the
claim. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct.
509, 30 L.Ed.2d 438 (1971); Toulson v. Beyer, 987 F.2d
984, 986 (3d Cir. 1993); Landano v. Rafferty, 897 F.2d
661, 688 (3d Cir.), cert. denied, 498 U.S. 811, 111 S.Ct.
46, 112 L.Ed.2d 23 (1990); Santana v. Fenton, 685 F.2d
71, 75-77 (3d Cir. 1982), cert. denied, 459 U.S. 1115,
103 S.Ct. 750, 74 L.Ed.2d 968 (1983). It is the
petitioner’s burden to demonstrate satisfaction of the
exhaustion requirement. Lines v. Larkins, 208 F.3d 153
(3d Cir. 2000), cert. denied, U.S. , 121 S. Ct. 785
(2001); Lambert v. Blackwell, 134 F.3d 506, 513 (3d
Cir. 1997); Toulson v. Beyer, 987 F.2d at 987; Landano
v. Rafferty, 897 F.2d at 668. Of course, the exhaustion
requirement applies only to constitutional claims
otherwise cognizable in the federal habeas court;
accordingly, it was error for the district court to dismiss
a “mixed” habeas petition based upon petitioner’s failure
to exhaust a claim arising solely under state law (therein
the alleged ineffectiveness of post-conviction relief
counsel). Tillett v. Freeman, 868 F.2d 106 (3d Cir.
1989).The petitioner must have “fairly presented” his
claims to the state courts. O’Sullivan v. Boerckel, 526 U.S.
838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Vasquez v.
Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 88 L.Ed.2d
598 (1986); Lines v. Larkins, 208 F.3d 153. Moreover,
the petitioner must present his constitutional claim to
each level in the state court appellate process. Evans v.
Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir.
1992), cert. dismissed, 506 U.S. 1089, 113 S.Ct. 1071,
122 L.Ed.2d 498 (1993); Ross v. Petsock, 868 F.2d 639
(3d Cir. 1989). The federal claim must be the
substantial equivalent of the claim presented to the state
courts, Picard v. Connor, 404 U.S. at 278; both the legal
theory and the factual support for the federal claim must
have been advanced in the state proceedings. Picard v.
Connor, 404 U.S. at 277-78; O’Halloran v. Ryan, 835
F.2d 506, 510 (3d Cir. 1987). “[I]f a habeas petitioner
wishes to claim that an evidentiary ruling at the state
court trial denied him the due process of law guaranteed
by the Fourteenth Amendment, he must say so, not only
in federal court, but in state court.” Duncan v. Henry,
513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865
(1995). It is necessary to review the state court record,
Duttry v. Petsock, 878 F.2d 123, 124 (3d Cir. 1989), and
the briefs filed in the state courts, Brown v. Cuyler, 669
F.2d 155, 158 (3d Cir. 1982), to make a determination
as to whether the claim was “presented.” A claim made
for the first time on discretionary review does not
constitute “‘fair presentation’” of the claim. Castille v.
Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380
(1989). Moreover, where a petition for discretionary
review in the state’s highest court “is a normal, simple,
and established part of the [s]tate’s appellate review
process,” state prisoners must seek that review in order to
satisfy the exhaustion requirement. O’Sullivan v.
Boerckel, 526 U.S. 838, 118 S.Ct. 1728, 144 L.Ed.2d 1.
Finally, “[i]t is not enough to scatter the words ‘due
process’ in a brief: counsel must sketch an argument
about why the conviction violates that clause.” Riggins v.
McGinnis, 50 F.3d 492, 494 (7th Cir.), cert. denied, 515
U.S. 1163, 115 S.Ct. 2621, 132 L.Ed.2d 862 (1995);
Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135
L.Ed.2d 457 (1996); Moleterno v. Nelson, 114 F.3d 669
(7th Cir. 1997).“An exception [to the exhaustion doctrine] is made
only if there is no opportunity to obtain redress in state
court or if the corrective process is so clearly deficient as
to render futile any effort to obtain relief.” Duckworth v.
Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1