Espey v. Wainwright

• Decision Date: 18 June 1984
• Docket Number: No. 83-5069,83-5069
• Citation: Espey v. Wainwright, 734 F.2d 748 (11th Cir. 1984)
• Parties: Herbert ESPEY, Petitioner-appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 748

734 F.2d 748

39 Fed.R.Serv.2d 326

Herbert ESPEY, Petitioner-appellant, v.Louie L. WAINWRIGHT, Respondent-Appellee.

No. 83-5069.

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 18, 1984.

Joy Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

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

Before HILL, JOHNSON and HENDERSON, Circuit Judges.

PER CURIAM:

PetitionerHerbert Espey is a Florida prisoner who filed a pro se 28 U.S.C.A. Sec. 2254 petition for habeas corpus relief with the United States District Court for the Southern District of Florida.His petition alleged the following six grounds for relief: (1) denial of the effective assistance of counsel; (2) insanity at the time of the crime and of his trial; (3) improper prosecutorial comments; (4) improper jury charge; (5) his mandatory life sentence is unconstitutional; and (6) erroneous introduction of similar fact evidence at trial.In response, the State filed an answer alleging that Espey had exhausted his state remedies on all of his claims except ground two and, therefore, his petition constituted a mixed petition which should be dismissed for lack of exhaustion.A magistrate subsequently reviewed Espey's claims and determined that he had failed to exhaust his state remedies concerning ground two, his claim of insanity.Consequently, she recommended that the petition be dismissed without prejudice to allow Espey the opportunity to exhaust that claim.

Following the magistrate's recommendation, Espey twice filed identical replies to the State's answer with an alternative motion to strike ground two from the petition.Additionally, Espey filed objections to the magistrate's recommendation, also containing an alternative motion to strike ground two of the petition.

Two months later, the district court accepted the magistrate's recommendation and dismissed the petition without prejudice.The court did not address Espey's motions to strike the unexhausted claim.Espey filed a timely notice of appeal.The district court denied Espey's application for a certificate of probable cause to appeal and his motion for leave to appeal in forma pauperis.This Court granted Espey's application for a certificate of probable cause for this appeal and granted him leave to proceed in forma pauperis.

The sole issue raised by this appeal is whether the district court abused its discretion in dismissing Espey's petition for lack of exhaustion without allowing him to amend the petition to delete the unexhausted claim.Concluding that it did, we reverse and remand this case to the district court for further consideration of Espey's exhausted habeas claims.

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379(1982), the Supreme Court held that before seeking habeas relief in the federal courts, a petitioner must totally exhaust his state remedies with respect to his federal claims and, therefore, that the district courts must dismiss all "mixed" petitions which contain both exhausted and unexhausted claims.The precise Lundy holding, however, was that "[a]district court must dismiss such 'mixed petitions', leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court."Id. at 510, 102 S.Ct. at 1199(emphasis added).Because Espey had exhausted all of his claims except for ground two, the insanity claim, his petition clearly constituted a "mixed" petition which was subject to dismissal.Under a liberal construction, however, of Espey's pro se motions to strike this claim, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652(197...