Bowen v. State of Tenn.

• Decision Date: 14 January 1983
• Docket Number: No. 81-5386,81-5386
• Citation: 698 F.2d 241
• Parties: Quinton BOWEN, Petitioner-Appellant, v. STATE OF TENNESSEE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 241

698 F.2d 241

Quinton BOWEN, Petitioner-Appellant, v. STATE OF TENNESSEE, Respondent-Appellee.

No. 81-5386.

United States Court of Appeals, Sixth Circuit.

Submitted on Briefs Oct. 18, 1982.

Decided Jan. 14, 1983.

Alan Bryant Chambers (court-appointed), Wayne Chastain, Memphis Area Legal Services, Memphis, Tenn., for petitioner-appellant.

William M. Leech, Jr., Atty. Gen. of Tenn., Jennifer Helton Small, Ann Lacy Johns, Asst. Attys. Gen., Nashville, Tenn., for respondent-appellee.

Before EDWARDS, Chief Circuit Judge, LIVELY, ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY, and WELLFORD, Circuit Judges, and CECIL ^*, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Quinton Bowen (Bowen) here appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 by the United States District Court for the Western District of Tennessee. The district court, upon motion of the respondent State of Tennessee (State), dismissed one of Bowen's claims for relief as unexhausted in the state courts and therefore beyond review in the Federal habeas proceedings. However, notwithstanding the presence of such an unexhausted allegation in the original petition, the district court adjudicated the merits of the exhausted issues and denied Bowen's petition for the writ.

On appeal, the original panel of this Court affirmed the district court's decision, including the final disposition on the merits of the exhausted claims in the petition, and denied the writ. Bowen v. Tennessee, No. 81-5386 (6th Cir. July 30, 1982). The panel concluded that, despite the intervening pronouncement of the Supreme Court in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) mandating dismissal of such mixed petitions, the failure of the State to enter objections to a final disposition on the merits of the exhausted issues in the trial court constituted a "waiver" of the "defense that mixed petitions must be dismissed." Bowen v. Tennessee, supra, slip op. at 4. The case is presently before this Court sitting en banc.

Preliminarily, the panel below and the instant dissents question the applicability of the total exhaustion rule to cases pending within the circuit at the time of the Supreme Court's decision in Rose. This Court notes that the Supreme Court has on three occasions subsequent to Rose applied the rule promulgated therein to pending appeals. Bergman v. Burton, --- U.S. ----, 102 S.Ct. 2026, 2027, 72 L.Ed.2d 477 (1982); Rodriquez v. Harris, 455 U.S. 997, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982); Duckworth v. Cowell, 455 U.S. 996, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982). ¹ Further, those courts of appeal which have been confronted with the applicability of Rose to pending cases have uniformly found such application to be proper. Gulliver v. Dalsheim, 687 F.2d 655 (2d Cir.1982); Guthrie v. Warden, 683 F.2d 820 (4th Cir.1982); Slotnick v. O'Lone, 683 F.2d 60 (3rd Cir.1982); Stewart v. Parratt, 682 F.2d 757 (8th Cir.1982); Smith v. Atkins, 678 F.2d 883 (10th Cir.1982); United States ex rel. Clauser v. Shadid, 677 F.2d 591 (7th Cir.1982). Accordingly, this Court concludes that the mandate of the Supreme Court in Rose is fully applicable to the case at bar.

The basic issue presented by the matter sub judice is the essential character of the total exhaustion rule articulated in Rose. The original panel of this Court interpreted the rule as creating, on behalf of the state attorney general, the right to interpose a timely "affirmative defense" of failure to exhaust state remedies to any federal consideration of a mixed petition. It followed that the failure of the respondent to enter a timely assertion of this affirmative defense constituted a waiver and permitted a federal court to pass upon the merits of any properly exhausted claims in the mixed petition.

The Third Circuit in United States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3rd Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978), considered a waiver analysis similar to that formulated by the original panel of this Court within the context of the policy of comity, underlying the exhaustion requirement of Sec. 2254. The Trantino court stated:

The basis for rejection of the concept of waiver in this case * * * is found in the policy underlying the exhaustion requirement. Exhaustion is a rule of comity. "Comity," in this context, is that measure of deference and consideration that the federal judiciary must afford to the co-equal judicial systems of the various states. Exhaustion, then, serves an interest not of state prosecutors but of state courts. It follows, therefore, that the state court interest which underlies the exhaustion requirement of Sec. 2254(b) cannot be conceded or waived by state prosecutors--for the state court interest in having "an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" is simply not an interest that state prosecutors have been empowered to yield. "Waiver," like "concession," is not a talisman, the incantation of which will cause the exhaustion requirement to disappear. That requirement remains.

Id. at 96 (footnote omitted). Accord, Sweet v. Cupp, 640 F.2d 233 (9th Cir.1981); United States ex rel. Sostre v. Festa, 513 F.2d 1313 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975); Needel v. Scafati, 412 F.2d 761 (1st Cir.), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 113 (1969).

Moreover, those courts which had formerly recognized the possibility of a waiver of the exhaustion requirement did so only upon the presence of an explicit waiver, and not, as in the instant matter, upon merely an inadvertent or implied waiver. Davis v. Campbell, 608 F.2d 317 (8th Cir.1979); Houston v. Estelle, 569 F.2d 372 (5th Cir.1978); Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir.1971). See also United States ex rel. Lockett v. Illinois Parole and Pardon Board, 600 F.2d 116, 118 (7th Cir.1979) ("We conclude that there is no bar to our raising the issue of exhaustion on our own, although it has not been raised by the State either in the district court or in the briefs on appeal.")

Wherefore, in light on the emphasis in Rose upon comity as protecting "the state courts' role in the enforcement of federal law and prevent[ing] disruption of state judicial proceedings", 102 S.Ct. at 1203 (emphasis added), this Court concludes that the total exhaustion rule promulgated in Rose may not be waived or conceded in the district court by a state attorney general and may be noticed by this Court sua sponte on appeal.

Having determined that the total exhaustion requirement may not be waived, and that the case at bar therefore presents an improper consideration of the merits of the exhausted claims contained in a mixed petition, this Court must articulate the procedure applicable to a remand of this, and all analogous, actions. In Duckworth v. Cowell, 455 U.S. 996, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982), and Rodriquez v. Harris, 455 U.S. 997, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982), the Supreme Court was similarly presented on review with cases involving mixed habeas petitions where the merits of the exhausted claims had been adjudicated at the district and circuit levels. See, e.g., Cowell v. Duckworth, 512 F.Supp. 371 (N.D.Ind.1981). The Court in each case granted certiorari, vacated the judgments and remanded each case to the respective court of appeals "with directions that it instruct the [district court] to dismiss the petition for a writ of habeas corpus." Duckworth, supra, ² Rodriquez, supra. ³ It is notable that in Duckworth, Justice Blackmun and Justice Stevens, both of whom dissented in Rose at least in part for reasons related to the initial administrative burden upon courts in enforcing a total exhaustion rule, would have denied certiorari, thereby permitting the decision of the court of appeals on the merits of the exhausted claim to stand. Such a result would have authorized the circuits to read Rose within the context of the decision entered by the original panel of this Court. However, the unambiguous language of Duckworth and Rodriquez leaves no doubt that an appellate court is without discretion to review cases of mixed petitions and must remand such actions to the district court with instructions to dismiss. ⁴

Accordingly, the petition of appellant Bowen is ORDERED remanded to the district court with instructions to dismiss the instant petition in its entirety.

GEORGE CLIFTON EDWARDS, Jr., Chief Judge, concurring in and joining the majority opinion.

If the merits of ordering dismissal of a mixed habeas petition on remand from a court of appeals were open for consideration by this Court, I would agree with the reasonableness of the two dissents. I concur, however, with the case analysis in the majority opinion which shows that the Supreme Court majority has required dismissal of such petitions.

MERRITT, Circuit Judge, dissenting.

Three considerations lead me to the conclusion that our Court has erred in its decision to apply Rose v. Lundy retroactively to cases pending on appeal in which the question presented was not raised in the court below: (1) Summary orders of the Supreme Court that contain no substantive discussion and set out no rule or principle of law--in this case, two two-sentence orders--do not have the precedential value of regular opinions and should not be considered binding in this case. (2) Well-settled authority on retroactivity clearly suggests that the rule of Rose v. Lundy should not be retroactively applied to cases pending on direct review when it was announced. (3) The question of the effect of mixing exhausted and unexhausted claims does not go to subject matter jurisdiction; it was not raised in the court below and was, therefore, waived as an issue on appeal.

I. SUMMARY ORDERS

Although our court believes itself bound by the two two-line orders in Duckworth and Rodriquez...