Emanuel v. Osborne
| Decision Date | 27 April 1982 |
| Docket Number | No. 81-920-HC.,81-920-HC. |
| Citation | 538 F. Supp. 279 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Harold EMANUEL, Petitioner, v. J. E. OSBORNE, et al., Respondents. |
Harold Emanuel, pro se.
Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N. C., for respondents.
Petitioner, Harold Emanuel, pled guilty to three armed robberies in the Superior Court for Edgecombe County. Pursuant to his plea bargain, he was given a thirty-year sentence which he is currently serving. He now brings this action for a writ of habeas corpus. 28 U.S.C. §§ 2241 et seq. (1976). The matter is before the Court on respondents' motion to dismiss.
Petitioner advances three claims in support of his petition. First, his lawyer assured him that he would receive credit for the five years and two months previously served. Second, his conviction resulted from a violation of his right against self-incrimination. Third, he was denied effective assistance of counsel.
Before examining the merits, the procedural status of this case must be reviewed. Petitioner filed a Motion for Appropriate Relief on 3 September 1980, see N.C.Gen. Stat. §§ 15A-1411 et seq. (1978), alleging his contention concerning credit for time served. The motion was denied on 18 September 1980. His petition for a writ of certiorari was denied. Emanuel v. State, (1981). Since petitioner has exhausted his state court remedies on but one of his three claims,1 the appropriate disposition of this case hinges on procedural considerations.
One salient factor which inhibits an otherwise straight-forward disposition of this action stems from respondents' apparent waiver of the exhaustion requirement. Respondents allege that the second and third claims "should be dismissed for nonexhaustion of state remedies except to the extent this Honorable Court finds them without merit as a matter of law, in which case respondents will waive further exhaustion." Answer at 2. Without determining the validity of this conditional waiver,2 the Court recognizes that its assertion presents an immediate barrier to rendering a substantive decision on this petition. Since exhaustion is a threshold issue in habeas corpus actions, the initial inquiry focuses on the procedural posture of this case. In light of this realization and given the United States Supreme Court's recent embellishment of the exhaustion doctrine, further analysis of the waiver option is proper.
The concept of waiver, as an approach to the exhaustion requirement in habeas actions, has never been addressed by the Supreme Court despite a division among the circuits.3 The Fourth Circuit currently permits the state's waiver of the exhaustion principle. Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971) (per curiam). The issue which remains, however, involves the perimeters of this option. For instance, it is uncertain whether particular circumstances make a waiver appropriate or if the state may waive exhaustion in all cases. Furthermore, given facts which make a waiver appropriate, courts have not uniformly ascertained who may invoke it. See Crawford v. Cox, 307 F.Supp. 732, 736 (E.D. Va.1969) ().
The Court faces the waiver issue guided only by the brief treatment afforded in Jenkins, yet ever mindful of Judge Friendly's admonition that "courts may deviate from exhaustion in those rare instances where justice so requires." United States ex rel. Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir. 1972). Although waiver exists as an option, it seems inappropriate for it to be available at the whim of the state attorney general.4See generally, Needel v. Scafati, 412 F.2d 761, 766 (1st Cir.), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 113 (1969); Crawford, 307 F.Supp. at 736. As the state's approach in the instant case amply demonstrates, waiver is often invoked in a random manner. Requesting the court to examine the merits of a petition, with the explicit intention of waiving exhaustion if it is meritless, strikes at the heart of the evil sought to be avoided by the exhaustion requirement. Instead of yielding its opportunity to adjudicate the claim (which is the essence of comity that underlies exhaustion, see part II, infra), the state seeks to turn collateral attack into a tripartite review, and, in the process, have the federal court make dual inquiries. A waste of judicial time and resources would occur "as ... courts examined the merits to determine whether a claim met the requisite level of validity to justify dispensing with the exhaustion requirement." Duckworth v. Serrano, ___ U.S. ___, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam). Such waste must be avoided.
Given this glimpse into the uncertainty of waiver after Jenkins, the task which lies before the Court requires a bifurcated approach. First, a determination must be made regarding the prevailing status of exhaustion itself. Once the characteristics of exhaustion are delineated clearly, then the boundaries of the waiver option may be drawn. With this process completed, the appropriate disposition of this petition—given the state's convoluted approach—may be made.
Exhaustion, as required in the federal habeas statute, represents the congressional codification of a judicially created principle. H.R.Rep.No.380, 80th Cong., 1st Sess. app., at 180 (1947). A state prisoner's petition for habeas relief should "be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts ..., have been exhausted." Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572 (1944). Comity militates against a federal court treating a habeas petition prior to its disposition in the state system. Unnecessary conflict must be avoided "between courts equally bound to guard and protect rights secured by the Constitution." Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). Without doubt, exhaustion is an integral element in the scheme of federal review of state criminal proceedings.
Despite the importance attached to exhaustion, most lower courts construe it as failing to attain the level of a jurisdictional requirement. 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4264 (1978 & 1982 Supp.) (). Nevertheless, the statute commands exhaustion.5 This unqualified statement, coupled with the Supreme Court's recent emphasis of the doctrine, indicates that exhaustion is more than a mere suggestion to the federal courts. To sustain comity in substance rather than form alone, "the substance of a federal habeas corpus claim must first be presented to the state courts." Picard v. Conner, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). Thus, even if exhaustion fails as a jurisdictional mandate, it stands as a factor which militates against federal courts entertaining habeas claims which are elsewhere cognizable. "It goes to the heart of the federal-state distribution of power and affords a state court system the chance to keep its own house in order before a federal court steps in to rule on a federal constitutional claim." United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1319 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975) (Feinberg, J., concurring). When stripped to its essence, the true nature of exhaustion becomes clear. The state courts must retain a full opportunity to adjudicate the federal constitutional issues before resort is made to the federal forum. Francisco v. Gathright, 419 U.S. 59, 63, 95 S.Ct. 257, 259, 42 L.Ed.2d 226 (1974).
The recent decisions dealing with exhaustion underscore its critical place in the scheme of federal review of state court decisions. The Court declined to create an exception for clear constitutional violations, noting that "obvious constitutional errors, no less than obscure transgressions, are subject to the statutory requirements ...." Duckworth v. Serrano, ___ U.S. ___, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1982) (per curiam). In a more recent decision espousing the same policy, district courts were required to dismiss habeas petitions which contained any unexhausted claims. Rose v. Lundy, ___ U.S. ___, ___, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Unquestionably, the fundamental importance of exhaustion remains firmly entrenched in the habeas procedure. See Pitchess v. Davis, 421 U.S. 482, 487, 95 S.Ct. 1748, 1752, 44 L.Ed.2d 317 (1975) (per curiam).6
The inherent value of exhaustion in the preservation and protection of prisoners' constitutional rights bears greatly in favor of a limited waiver rule. By rigorously enforcing the exhaustion rule, state courts receive Rose, ___ U.S. at ___, 102 S.Ct. at 1203. To permit waiver in most cases, and certainly to encourage pleadings which include conditional waivers,7 eviscerates comity between state and federal courts. By denying the state courts an opportunity to become "familiar with and hospitable toward" these kinds of claims, waiver frustrates the essence of exhaustion.
Furthermore, claims which have been fully exhausted may generate "a complete factual record to aid the federal courts in their review." Id. Since the federal court reviewing a habeas petition presumes as correct factual findings made by a state court, see 28 U.S.C. § 2254(d), obvious advantages accrue for all parties. The state courts have an opportunity to address the constitutional claims. The parties benefit from presenting the claims to the court most familiar with the facts and proceedings. Finally, the reviewing court enjoys the more...
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