dissenting.
I must respectfully dissent. I would affirm the district court on the ground that Reese procedurally defaulted his claim for ineffective assistance of appellate counsel by failing fairly to present it to the Oregon Supreme Court.
“Judges are not like pigs, hunting for truffles buried in briefs.”1 At least federal appellate judges are not, according to our precedent.2 Yet the majority would hold state supreme court justices to a different standard — requiring them to root through the record for rare truffles of legal support that may complete an incompletely raised claim in one of the thousands of petitions they must decide whether to grant every year. And if they choose not to engage in this porcine behavior, they have, according the majority, chosen not to “take the op*1195portunity” presented to them by a petitioner to review that petitioner’s claim. The majority so holds despite clear and binding precedent regarding what constitutes fair presentation and despite clear Oregon procedural rales.
In order fairly to present a federal claim to state courts, a petitioner must “include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.”3 Thus, fair presentation requires the assertion of the facts and the law supporting each claim.
The majority concludes, and I agree, that fair presentation must occur at every level of the state post-conviction review process. Thus, we agree that Reese was required to present both the factual and legal support for his claim of ineffective assistance of appellate counsel in his petition for review before the Oregon Supreme Court. We disagree, however, on whether he did so.
Reese did not cite any federal basis for his claim of ineffective assistance of counsel before the Oregon Supreme Court. Thus, in my opinion, he failed fairly to present the claim to that court. The majority holds, however, that the fact that the first postconviction court cited federal cases in its rejection of the claim miraculously saves that claim from procedural default. The Oregon Supreme Court could have sifted through the record in Reese’s case, the majority reasons, to find the legal support missing from the claim in his petition. Thus, Reese fairly presented his claim to the Oregon Supreme Court in the majority’s opinion. To me, that is not fair presentation.
There are good reasons for requiring the citation of facts and law supporting a claim in order to deem it fairly presented and exhausted.4 For one thing, too many petitions for review are presented to state courts5 to expect judges and law clerks to search through the record to find support for a claim that is not presented. Departing from the requirements of fair presentation thus renders hollow our professed interest in providing state supreme courts with an opportunity to review federal claims. Practically, they will have no such opportunity if they are required to search the record each time an incompletely supported claim appears before them.
Oregon procedural rales governing the presentation of petitions for review to the Oregon Supreme Court also require presentation of the legal support for every claim in a petition. Oregon Rule of Appellate Procedure 9.05(3) requires that the petition contain;
(a) A prayer for review.
(b) Concise statements of the legal question or questions presented on review and of the rule of law that petitioner proposes be established, if review is allowed.
(c) A concise statement of each reason asserted for reversal or modification of the decision of the Court of Appeals, including appropriate authorities.
(d) A short statement of facts relevant to the appeal, but facts correctly stated in the opinion of the Court of Appeals should not be restated.
(e) A brief argument related to each reason asserted for review, if desired.
(f) A statement of specific reasons why the issues presented have importance beyond the particular case and require decision by the Supreme Court.
(g) A copy of the decision of the Court of Appeals, including the court’s opinion *1196-1204and any concurring and dissenting opinions.6
Thus, Oregon procedural rules also require the presentation of legal support for a claim in every petition for review.
Worthy of note is the fact that the rules also require that the court of appeals’ decision accompany a petition but do not require the lower court’s decision to accompany the petition. This makes sense— after all, the Oregon Supreme Court will be reviewing the decision of the court immediately below if it decides to grant the petition for review. This rule undermines the assumption of the majority in this case, however, that the Oregon Supreme Court will naturally look to the trial court’s decision when deciding whether to grant a petition for review. The rule does not even require that the trial court opinion accompany the petition.
By dissenting, I do not mean to diminish the disturbing history of this case. The parade of lawyers assigned to Reese and the mistakes made in his representation are an embarrassment.' However, the unfortunate history of this case does not merit the creation of an odd and unreasonable exception to the rules of fair presentation. There are good reasons for those rules. The old adage “hard cases make bad law” seems to apply here. I dissent.
. Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir.1997) (internal quotation marks and citation omitted).
. See, e.g., id.
. Gray v. Netherlands 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).
. See, e.g., Gray, 518 U.S. at 162, 116 S.Ct. 2074; Shumway, 223 F.3d at 987.
.In 1998, 8,627 petitions for review were filed for state supreme court review in California; 1,366 in Arizona; 1,146 in Washington; and 962 in Oregon. See State Court Caseload Statistics, 1998, National Center for State Courts (1999).
. Or. R.App. P. 9.05(3).