Thompson v. Wainwright

• Citation: 714 F.2d 1495
• Decision Date: 06 September 1983
• Docket Number: No. 82-6052,82-6052
• Parties: William Lee THOMPSON, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1495

714 F.2d 1495

William Lee THOMPSON, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Respondent-Appellant.

No. 82-6052.

United States Court of Appeals, Eleventh Circuit.

Sept. 6, 1983.

Calvin L. Fox, Asst. Atty. Gen., State of Fla., Dept. of Legal Affairs, Miami, Fla., for respondent-appellant.

Kravitz & Von Zamft, Michael Von Zamft, Hialeah, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and MORGAN, Senior Circuit Judge.

GODBOLD, Chief Judge:

In this habeas corpus case brought by a Florida state prisoner under sentence of death we decide three issues. We hold that a district court having before it a habeas petition containing only exhausted claims may continue the case at the petitioner's request pending his presenting to the state courts other claims that are not included in the petition and have not been exhausted. We hold that the state of Florida through its attorney general may waive the requirement of 28 U.S.C. Sec. 2254 that a petitioner seeking federal habeas corpus must first exhaust state remedies. And we hold that the district court, in its discretion, may accept or reject the state's waiver.

Based on his guilty plea, petitioner Thompson was convicted in Florida court of first degree murder, kidnapping and sexual battery. As recommended by the sentencing jury, the trial judge imposed the death sentence. The Florida Supreme Court affirmed Thompson's conviction and sentence on direct appeal, placing special emphasis on the extreme brutality of the crime. Thompson v. State, 389 So.2d 197, 200 (Fla.1980). The sentencing court summarily denied Thompson's subsequent motion for collateral relief under Fla.R.Crim.P. 3.850 (West Supp.1983), and the Florida Supreme Court affirmed. Thompson v. State, 410 So.2d 500 (Fla.1982). Throughout all these state proceedings Thompson was represented by his trial counsel. ¹

Only days before his scheduled execution Thompson secured new counsel. The new attorney filed a petition for habeas corpus in federal district court, and that court granted a stay of execution. The petition raised numerous constitutional allegations previously addressed to the state courts. Contemporaneously Thompson's attorney filed a motion for continuance, (a postponement of any further proceedings), setting out that there were two grounds for post-conviction relief that were not alleged in the habeas petition (entry of an involuntary and unintelligent guilty plea and ineffective assistance of counsel); that these grounds had not been raised earlier because petitioner had been represented throughout previous proceedings by trial counsel; and that these issues needed to be raised in the first instance in state post-conviction proceedings.

The respondent, secretary of the Florida Department of Corrections (hereinafter "the state"), represented by the Florida attorney general, opposed the motion for continuance on the ground of deliberate bypass, see Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), and abuse of the writ, see Rules 9(a) and (b) of Rules Governing Sec. 2254 Cases in U.S. District Courts; Sanders v. U.S., 373 U.S. 1, 15-23, 83 S.Ct. 1068, 1077-1023, 10 L.Ed.2d 148 (1963).

The court conducted a hearing. The attorney general notified the court that the state waived exhaustion of the two unexhausted claims. ²

The court granted the continuance on the ground that this was the action most consistent with the underlying policies of the exhaustion requirement as applied to a death penalty challenge. The court noted that Thompson had been unable to raise the two new claims until he changed counsel and that he appeared to be making a good faith effort to litigate all of his constitutional claims in one federal case. The court did not give effect to, or even refer to, the state's waiver.

The court certified the case for interlocutory appeal under 28 U.S.C. Sec. 1292(b) and at the request of the state stayed its order pending appeal. We granted leave to appeal.

Before this court the state continues to assert on bypass and abuse of the writ grounds that the court should not have postponed further action on the federal petition. Its main point is, however, that the court erred in not giving effect to the state's waiver of exhaustion. ³ Citing its interest in prompt final determination of the validity of convictions and sentences rendered in its courts, the state says that as a matter of policy it wishes to have available to it the discretion to explicitly waive exhaustion in habeas cases. Moreover, the state contends that once such a waiver is asserted the federal district court is bound to accept it. These two prongs of the waiver of exhaustion issue go to the heart of the two-tier state-federal system of review of the constitutionality of state criminal convictions and sentences. They implicate the principles of comity and of federalism that underly the two-tier review. And they involve the search for finality in criminal cases.

I. The power of the court to delay the federal proceedings.

The state's contention that the district court had no power to grant a continuance of the habeas petition pending before it, or abused its discretion in doing so, is patently without merit. The court has the power to control its docket. So long as it abides by the limits of discretion, it can leave a habeas petition dormant on its docket while the petitioner presents to the state court unexhausted claims.

The express aim of the district court, set out in its carefully phrased order, was to enable all constitutional claims to be settled in one federal habeas proceeding. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), does not forbid the continuance. The petitioner did not file a mixed petition seeking rulings on unexhausted claims. To the contrary, he asked that ruling on his exhausted claims be withheld until unexhausted claims could be presented to the state court and then all claims, properly exhausted, considered in the federal court at one time. This furthers the interests underlying Rose rather than impedes them.

The district court could have denied a delay, decided the issues that were alleged in the petition, and left Thompson to the risks of a second federal petition on the two new claims. But no rule or policy required it to do so.

The state's objections to the continuance order are dubious. It argues that under Fay v. Noia, Thompson deliberately bypassed state courts by "filing" his unexhausted claims in federal court instead of state court. The short answer is that Thompson did not file his unexhausted claims in federal court but rather seeks to get them ruled on in state court. The state raised an abuse of the writ argument, but declined to pursue it after noting that petitioner was making a good faith effort to avoid piecemeal litigation and to attain the desirable end of one single, plenary federal proceeding.

In its brief the state contends that the motion should have been denied because petitioner failed to raise the issues in his first motion for collateral relief in state courts and because eventually, when presented to the federal court, the two new claims would be barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). At oral argument the state acknowledged that petitioner violated no state procedural rule by failing to raise the two new claims in his first motion for collateral relief and thus that Sykes would not be triggered.

The district court did not err in granting the continuance.

II. The power of the state to waive.

(A) Authority of the attorney general under state law.

Under the Florida constitution, Article 4, Sec. 4, the attorney general is a member of the cabinet and is "the chief state legal officer" of the executive department. By statute, Fla.St.Ann. Sec. 16.01(2) (West Supp.1982), he must perform "such other duties appropriate to his office as may from time to time be required of him by law or by resolution of the Legislature." His responsibilities with respect to litigation are covered in subsections (4) and (5) of Sec. 16.01. The attorney general:

(4) Shall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal of this state.

(5) Shall appear in and attend to such suits or prosecutions in any other of the courts of this state or in any courts of any other state or of the United States.

It is obvious that the "such suits" in (5) are those described in (4), "all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested." The statutory mandate to the attorney general is not merely to appear but to "attend to, in behalf of the state, all suits or prosecutions," etc.

By Florida judicial decisions, the grant of specific state powers to the attorney general does not deprive him of the powers belonging to him under the common law, which include prosecuting "all actions necessary for the protection and defense of the property and revenue of the state...." State ex rel. Landis v. S.H. Kress & Co., 115 Fla. 189, 155 So. 823, 827 (1934). Also, "it is his duty, in the absence of express legislative restrictions to the contrary, to exercise all such power and authority as public interests may require from time to time." Id. Moreover, in Florida the office of attorney general is in many respects judicial in character, and he is clothed with considerable discretion. Id. 155 So. at 828.

The attorney general's authority runs beyond responsibility to the government qua government. He is responsible to the people. "The Attorney-General is the attorney and legal guardian of the people, or of the crown, according to the form of government." State ex rel....