Felder v. Estelle, 82-2025

• Decision Date: 14 December 1982
• Docket Number: No. 82-2025,82-2025
• Citation: 693 F.2d 549
• Parties: Sammie FELDER, Jr., Petitioner-Appellee, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 549

693 F.2d 549

Sammie FELDER, Jr., Petitioner-Appellee, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.

No. 82-2025.

United States Court of Appeals Fifth Circuit.

Dec. 14, 1982.

Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Peter Buscemi, Washington, D.C., Todd D. Stern, New York City, for petitioner-appellee.

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

Before THORNBERRY, JOHNSON and HIGGINBOTHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

I. Introduction:

This is an appeal by the State of Texas from an order dismissing a prisoner's application for a writ of habeas corpus without prejudice in order to permit him to exhaust his state remedies. The State claims that the court below erred in refusing to accept the State's explicit waiver of the exhaustion of state remedies requirement. For the reasons outlined below, we reverse and remand.

II. Facts and Disposition Below:

Sammie Felder was convicted of capital murder in 1976 and was sentenced to death. In 1980, following rejection of his appeals in the state courts, Felder sought federal habeas corpus relief, alleging numerous constitutional grounds as to which he had already exhausted available state remedies. In September, 1981, Felder amended his petition to include three additional, unexhausted grounds for relief. Since his petition was now "mixed," containing both exhausted and unexhausted claims for relief, Felder moved for dismissal of the petition without prejudice in order to pursue his new grounds for relief in the state courts. In an effort to expedite resolution of the case, the state expressly waived the exhaustion requirement in the district court.

The magistrate to whom the matter was referred recommended dismissal, relying on the policies underlying Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978) (en banc). In his memorandum and recommendation, the magistrate stated: "It is plain that exhaustion exists merely for the benefit of the state judiciary. Whether such a waiver under these circumstances by the respondent would impede, in general, the state judicial process is not clear. It would in the court's estimation be inconsistent with the Galtieri rule." The district court adopted the magistrate's findings and recommendation and dismissed the habeas petition without prejudice.

The sole question presented for our determination is whether the state may explicitly waive the exhaustion requirement in federal habeas corpus proceedings under 28 U.S.C. Sec. 2254 (1976). ¹

III. Analysis:

Because the legislative history of Sec. 2254, S.Rep. No. 1559, 80th Cong., 2d sess., 10 (1948), contains no reference to state waiver of the exhaustion requirement, it is most likely that Congress never even considered this problem. We must therefore analyze the policies underlying the statute to decide this issue. Rose v. Lundy, --- U.S. ----, ---- - ----, 102 S.Ct. 1198, 1202-03, 71 L.Ed.2d 379 (1982).

The doctrine of exhaustion is rooted in considerations of federal-state comity. "[T]he exhaustion requirement is an accommodation of the federal system to give the state the initial opportunity to decide (and correct if need be) alleged violations of federal constitutional rights.... The exhaustion rule does not relate to the jurisdiction of the federal court but rather addresses the appropriate exercise of that jurisdiction in light of our unique American system of dual sovereignty." Bufalino v. Reno, 613 F.2d 568, 570 (5th Cir.1980). See Rose v. Lundy, 102 S.Ct. at 1203; Fay v. Noia, 372 U.S. 391, 419, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963); Darr v. Burford, 339 U.S. 200, 204-05, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950); Galtieri v. Wainwright, 582 F.2d at 353-54; Houston v. Estelle, 569 F.2d 372, 375 (5th Cir.1978) ("[i]n deciding whether the merits ... are properly before us, we must be mindful that the question is not one of federal power, but of equitable discretion"). See generally 17 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction Sec. 4264 (1978); Developments, Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1093-94 (1970).

The nature of the exhaustion requirement is clearly relevant to the issue of whether it can be waived. "If exhaustion goes to the jurisdiction of the federal court, then the state could not waive it any more than a party can waive any other jurisdictional requirement." Wright, Miller & Cooper, supra, at 652. Exhaustion, however, is not a question of subject-matter jurisdiction, and a court of appeals need not raise it sua sponte. Hopkins v. Jarvis, 648 F.2d 981, 983 n. 2 (5th Cir.1981). Nonetheless, several circuit courts, while acknowledging the principles of comity underlying the rule, have used language so broad as to preclude waiver, effectively elevating the rule to one of jurisdiction. Thus, the Third Circuit, with one judge dissenting, held that state prosecutors cannot concede or waive the exhaustion requirement. United States ex Rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978). The First Circuit, 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), Second Circuit, United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1314 n. 1 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975), and the Ninth Circuit, Sweet v. Cupp, 640 F.2d 233, 237 n. 5 (9th Cir.1981), have similarly held that the state cannot waive the exhaustion requirement. ²

Those courts which have concluded that the state may not waive the exhaustion requirement base their holdings on the comity owed the state courts, as distinguished from that owed the state attorneys general:

Exhaustion ... 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.

Trantino, 563 F.2d at 96 (emphasis in original) (footnote omitted).

Other courts have reached opposite conclusions. Thus, in Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir.1971), the Attorney General of the State of Maryland expressly requested the district court to reach the merits of an unexhausted habeas petition. The Fourth Circuit held that "[s]ince the exhaustion requirement of 28 U.S.C. Sec. 2254 'is not a jurisdictional concept but simply a flexible matter of comity,' we think the federal courts may in the interest of justice and expedition accept waiver of exhaustion by the state." 440 F.2d at 1189 (citations omitted). See also Kelly v. State of North Carolina, 276 F.Supp. 200, 205 (E.D.N.C.1967) ("since the rule is one of comity, observed in order to avoid unseemly collisions by allowing state courts the first opportunity to review alleged state abuses of federal constitutional rights, then the requirement is a proper one for waiver, should the state, in its discretion, choose to waive it.").

Several cases decided by this court indicate a willingness to give effect to an express waiver by the state. In Tolg v. Grimes, 355 F.2d 92 (5th Cir.1966), the state, recognizing the great uncertainty of the available state remedies, made an explicit waiver of the exhaustion requirement. This court accepted the waiver, holding: "It being clear that the principles of exhaustion of state remedies is a matter of comity, not a matter of jurisdiction, we think it is entirely permissible for the State to waive the failure to exhaust State remedies if it recognizes, as it apparently does in its presentation to this Court, that substantial justice will be furthered by such waiver." 355 F.2d at 97.

Warren v. Connor, 365 F.2d 590 (5th Cir.1966), involved a fact situation substantially similar to that in Tolg, supra. In Warren, the State Attorney General admitted the lack of an available state remedy. The court held that "[t]he circumstances which compelled us to this conclusion [assume jurisdiction to pass on the merits of the habeas petition in Tolg ] are likewise present here, including the State's waiver of the failure to exhaust state remedies, or more appropriately, the State's candid recognition of the uncertainty of the availability of state remedies." 365 F.2d at 591.

Of course, both Tolg and Warren are distinguishable from the present case in that the availability of adequate state remedies is not an issue here. Here the State, in a desire to expedite resolution of this case, has waived the exhaustion requirement despite the availability of adequate remedies in state courts.

In Houston v. Estelle, 569 F.2d 372 (5th Cir.1978), the State explicitly stated at the trial that it had no objection to the defendant's failure to exhaust state remedies. The district court reached the merits in that case. On appeal, counsel for the State conceded that the State was satisfied with the procedural posture of the case. This court held: "Since the exhaustion requirement is non-jurisdictional, it may be waived by the State, and we may give consideration to the expenditure of federal judicial resources below.... [T]he State has never even made the argument which prevails, if at all, only as a matter of comity and has instead acquiesced in the expenditure of substantial resources in litigating the merits. In these circumstances, we hold that Houston's claim is properly before us. To hold otherwise ... would be to elevate a rule of equitable discretion into one of jurisdiction." 569 F.2d at 375-76 (citations...