90 F.3d 276 (8th Cir. 1996), 95-2801, Victor v. Hopkins

Docket Nº:95-2801.
Citation:90 F.3d 276
Party Name:Clarence VICTOR, Appellee, v. Frank X. HOPKINS, Appellant.
Case Date:July 19, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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90 F.3d 276 (8th Cir. 1996)

Clarence VICTOR, Appellee,


Frank X. HOPKINS, Appellant.

No. 95-2801.

United States Court of Appeals, Eighth Circuit

July 19, 1996

Submitted Dec. 14, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

1, 1996.[*]

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J. Kirk Brown, argued, Lincoln, NE, for appellant.

Rick D. Lange, argued, Lyle J. Koenig, Lincoln, NE, for appellee.

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE, [**] District Judge.

BOWMAN, Circuit Judge.

Pursuant to 28 U.S.C. § 1292(b) (1994), the District Court has certified the following question for our consideration:

Can and should a federal district court in a federal habeas corpus action involving the death penalty hold the federal case in abeyance, retaining jurisdiction and maintaining the stay against execution, to allow the petitioner to exhaust his state remedies in a situation where it is unclear under state law that state procedures are available to the petitioner to raise his claims in state court?

We answer this question in the negative, holding that the proper course of action for a district court in these circumstances is to dismiss the petition for a writ of habeas corpus, put the petitioner to his state remedies, and lift the federal stay of execution.


The evidence presented at Victor's trial in state court overwhelmingly proved that on December 26, 1987, Victor murdered 82-year-old Alice Singleton in her home in Omaha, Nebraska, by slashing her throat several times. Victor had been Singleton's gardener. A jury found Victor guilty of first degree murder and use of a weapon to commit a felony. A three-judge sentencing panel imposed the death penalty. On direct appeal, the Nebraska Supreme Court affirmed Victor's conviction and the imposition of the death penalty. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990), cert. denied, 498 U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1195 (1991). Victor's effort at obtaining relief through state post-conviction proceedings was similarly unsuccessful. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993), aff'd, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

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On September 2, 1994, Victor, representing himself, filed a petition for a writ of habeas corpus, a motion for appointment of counsel, a motion for a stay of execution, and a motion to proceed in forma pauperis. The District Court, having jurisdiction to "entertain an application for a writ of habeas corpus" pursuant to 28 U.S.C. § 2254 (1994), granted Victor's motions for appointment of counsel and for a stay of execution and granted in part his motion to proceed in forma pauperis. Victor's appointed counsel filed an amended petition for a writ of habeas corpus on January 17, 1995. In that petition, Victor makes numerous claims for relief. Later, Victor realized that some of the claims in his amended petition never have been presented to the Nebraska state courts either on direct appeal or in post-conviction proceedings. Victor then requested the District Court to hold his petition in abeyance and maintain the stay of execution while he attempted to raise these claims in a second state petition for post-conviction relief. The District Court granted Victor's motion over the state's objection.

In its order granting Victor's motion to hold his petition in abeyance and maintain the stay of execution, the District Court certified that the question set out above is "a controlling question of law as to which there is substantial ground for difference of opinion" and "that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Victor v. Hopkins, 890 F.Supp. 844, 853 (D.Neb.1995) (quoting 28 U.S.C. § 1292(b) (1994)). The state then petitioned this Court for permission to appeal the interlocutory order of the District Court. We granted the petition, and we thus have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(b).


The state argues that the District Court abused its discretion when it granted Victor's motion because both this Court and the Supreme Court have held that federal courts must dismiss habeas petitions that include both exhausted and unexhausted claims unless either the petitioner chooses to proceed on his exhausted claims only or the state waives the requirement of exhaustion. In this case, the state argues that it has waived exhaustion and, to a certain extent, urges that the case proceed to a decision on the merits. 1 Victor argues that, under other precedents of this Court, the District Court has the discretion to retain jurisdiction over a habeas petition pending a petitioner's exhaustion of state-court remedies and that the state's qualified waiver of the exhaustion requirement is insufficient to allow the District Court to reach the merits of his petition at this time.


As an initial matter, we must consider whether the state has waived the exhaustion requirement. If the state's waiver was effective, the question certified by the District Court would be moot. Exhaustion would not be necessary, and the District Court could choose to continue its proceedings on Victor's habeas petition rather than holding it in abeyance. We conclude, however, that the state's waiver of the exhaustion requirement was not effective.

The parties agree that Victor's petition includes some new, unexhausted claims. In certain circumstances, a federal district court can consider the merits of an unexhausted claim when the exhaustion requirement has been waived by the state. See Hampton v. Miller, 927 F.2d 429, 431 (8th Cir.1991). The decision to accept a waiver of the exhaustion requirement is committed to the discretion of the district court. Id. We have held that when the availability of a state procedure is in doubt, federal courts "should be hesitant to accept State waivers of the exhaustion defense." Duvall v. Purkett, 15 F.3d 745, 747 (8th Cir.), cert. denied, 512 U.S. 1241, 114 S.Ct. 2753, 129 L.Ed.2d 870 (1994).

In its brief, the state argues that it has waived the exhaustion requirement. The District Court rejected that argument, holding that the state did not waive the exhaustion

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requirement because the state retained the right to argue that Victor's new claims for relief were procedurally defaulted in state court. Victor v. Hopkins, 890 F.Supp. 844, 848 n. 5, 849 n. 6 (D.Neb.1995). We agree with the District Court's analysis of this issue. On the one hand the state argues that the availability of a state-court procedure to address Victor's new claims is uncertain; on the other hand, the state argues that Victor's new claims have been procedurally defaulted in state court because he failed to raise them in his first petition for post-conviction review. It seems to us that the questions of whether Victor has an available state-court procedure to raise his new claims and whether Victor has procedurally defaulted those claims are one and the same. The state's brief reveals the flaw in the...

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