Dukes v. Lockhart

• Decision Date: 06 August 1985
• Docket Number: No. 84-2222-EA,84-2222-EA
• Citation: 769 F.2d 504
• Parties: Melvin DUKES, Appellant, v. A.L. LOCKHART, Director Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 504

769 F.2d 504

Melvin DUKES, Appellant, v. A.L. LOCKHART, Director Arkansas Department of Correction, Appellee.

No. 84-2222-EA.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1985.

Decided Aug. 6, 1985.

Evans Benton, Little Rock, Ark., for appellant.

Randel Miller, Little Rock, Ark., for appellee.

Before ROSS, JOHN R. GIBSON, Circuit Judges, and COLLINSON, ^* Senior District Judge.

COLLINSON, Senior District Judge.

Melvin Dukes appeals from the district court's ¹ denial of his petition for a writ of habeas corpus brought under 28 U.S.C. Sec. 2254. In his petition he raised the following grounds for relief: (1) his conviction was based on evidence obtained by an illegal search and seizure; (2) his conviction violated the double jeopardy clause of the United States Constitution; (3) improper elaboration by the prosecutor about the identification procedure; and that (4) his right to a speedy trial was denied. The district court determined that the appellant was not entitled to relief based upon the merit of his claims and dismissed petitioner's writ. Because we find that Dukes' petition contained either both exhausted and unexhausted claims or claims that were never exhausted in state court proceedings, ² we vacate the district court's memorandum and order and remand the case to the district court to be reexamined in light of Rose v. Lundy, 455 U.S. 509, 521-22, 102 S.Ct. 1198, 1204-05, 71 L.Ed.2d 379 (1982).

BACKGROUND.

On May 9, 1980, following a trial by a Jefferson County Circuit Court jury, petitioner was found guilty on two counts of aggravated robbery and two counts of theft of property. The jury also found that Mr. Dukes was a habitual offender and sentenced him to fifteen (15) years for each of the two theft of property convictions, fifty (50) years and a ten thousand dollars ($10,000.00) fine on one aggravated robbery conviction and life in prison and a fifteen thousand dollars ($15,000.00) fine on the other aggravated robbery conviction. All the sentences are to be served consecutively.

His conviction was affirmed by the Arkansas Supreme Court. Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981). The sole point raised on appeal was whether Mr. Dukes had been denied his right to a speedy trial as provided for in the Arkansas Rules of Criminal Procedure. Id. 609 S.W.2d at 924.

Subsequently, Mr. Dukes sought permission to proceed under Arkansas Rule of Criminal Procedure 37, concerning post conviction relief, contending that his right to a speedy trial had been denied. On April 19, 1982, the Arkansas Supreme Court denied his petition in an opinion not designated for publication.

On August 2, 1983, appellant Dukes filed his petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. Of the four (4) aforementioned issues raised by the petitioner, the speedy trial issue is the only issue which may have been exhausted in state court. Appellant does not claim to have raised the other three issues presented to the district court in state court. When the appellee affirmatively raised the defense of deliberate bypass, see Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the district court recognized that the issues had not been presented to the state court but found that there was no need for the court to reach the issue of deliberate bypass, because it was apparent from the record that petitioner was not entitled to relief on these issues.

On appeal, appellant raises only one point of error, that being the district court erred in not affording appellant an evidentiary hearing on his petition for a writ of habeas corpus. Included within his argument of the lack of an evidentiary hearing, he also argues: (1) that a motion to sever the offenses Mr. Dukes was charged with should have been filed; (2) a motion to suppress the clothes that were taken from appellant's home should have been filed; and (3) a motion to reduce the charges against him should have been filed. It is not necessary for this Court to reach these issues in light of our disposition of this case.

DISCUSSION.

It is clear from the facts that, at the very most, petitioner's petition for a writ of habeas corpus contains both exhausted and unexhausted claims. It is even possible that petitioner's petition for writ of habeas corpus contains nothing but unexhausted claims. ³

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that the federal district court must dismiss a state habeas petition that contains both exhausted and unexhausted claims. Tyler v. Wyrick, 730 F.2d 1209 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 138, 83 L.Ed.2d 78 (1984); Graham v. Solem, 728 F.2d 1533 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984); Anderson v. Frey, 715 F.2d 1304 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 739, 79 L.Ed.2d 198 (1984); Stewart v. Parratt, 682 F.2d 757 (8th Cir.1982). The total exhaustion rule of Rose v. Lundy, requires that we defer consideration of Dukes' petition until the Arkansas state courts have had an opportunity to pass upon these matters. Collins v. Lockhart, 707 F.2d 341, 344 (8th Cir.1983). The rule is based on the principles of comity and federalism and is designed to encourage state prisoners to seek full relief from the state courts first, thus giving those courts the initial opportunity to review all claims of constitutional error. Rose, 455 U.S. at 518, 102 S.Ct. at 1203; Snethen v. Nix, 736 F.2d 1241, 1244 (8th Cir.1984).

We believe that a remand is necessary for the purpose of allowing the district court to consider this case in the light of Rose v. Lundy. We further believe that the petitioner should make the choice whether to amend his petition and delete the unexhausted claims (assuming that the district court rules the right to a speedy trial issue has been exhausted in state court) or to proceed in state court on the unexhausted claims. Because of the possible ramifications of such a choice under Rule 9(b) of 28 U.S.C. Sec. 2254 as addressed in the plurality's opinion in Rose v. Lundy, ⁴ petitioner should not treat this choice lightly.

Although our disposition of this case may not evince judicial economy, it does, however, provide the procedural safeguard to insure comity and clearly instructs potential litigants to exhaust each claim in state court before bringing it to federal court. Rose v. Lundy, 455 U.S. at 519-20, 102 S.Ct. at 1203-04; Ashby v. Wyrick, 693 F.2d 789, 795 (8th Cir.1982) (Lay, J. concurring).

Because Dukes' petition for a writ of habeas corpus contains at least a mixture of exhausted and unexhausted claims, and because the record contains no clear manifestation that the presentation of the unexhausted claims to the state court would be futile, we reverse and remand to the district court with directions to reconsider petitioner's writ in light of Rose v. Lundy, tempered by the exhaustion standards of Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1983) (per curiam).

* The HONORABLE WILLIAM R. COLLINSON, Senior United States District Judge for the Eastern and Western Districts of Missouri, sitting by designation.

1 The Honorable G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas, Western Division.

2 Although the parties apparently agree that the issue of petitioner's right to a speedy trial has been presented to the state court and he has thereby exhausted his state...