Galtieri v. Wainwright

Decision Date23 October 1978
Docket Number76-1006,Nos. 75-4169,s. 75-4169
Citation582 F.2d 348
PartiesGennero GALTIERI, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant. John MATERA, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Robert L. Shevin, Atty. Gen., Linda Collins Hertz, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Milton E. Grusmark, Miami, Fla., for petitioners-appellees.

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


TJOFLAT, Circuit Judge:

The exhaustion of state remedies is a doctrine, grounded on notions of comity, that requires a state prisoner to present his claim of constitutional error to the state court system prior to petitioning for federal habeas corpus relief. The rule in this circuit is that a federal district court generally must dismiss, without prejudice, a state prisoner's petition for a writ of habeas corpus that contains a mixture of exhausted and unexhausted claims. Strong policy considerations require us to adhere to our rule that petitioners present All their claims to the state court system before turning to the federal courts.

This case was taken en banc because it poses a question not clearly answered by our precedent: what is the proper course for this court when a district court declines to dismiss a mixed petition and reaches the merits of an exhausted claim, and we are asked to review the decision on the merits? In the case before us, the court below granted writs of habeas corpus to petitioners Galtieri and Matera on the strength of an exhausted claim, although their petitions also raised unexhausted claims. The policy considerations bearing on the desirability of a district court's dismissal of a mixed petition are outweighed at the appellate level by new policy considerations; therefore, we shall review the merits of the issue decided by the court below rather than vacate the grant of the writs and require dismissal for want of exhaustion. 1

The writs were granted on the petitioners' claim that the state prosecutor withheld certain vital information from the defense in violation of the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We hold that the petitioners' exhausted claim does not assert an error of constitutional dimension under Brady and its progeny. The district court's judgment granting the writs is therefore reversed.

A. Exhaustion of State Remedies

In May, 1967, the petitioners, Gennero Galtieri and John Matera, were convicted of robbery by a Florida jury in a joint trial. Galtieri and Matera appealed their convictions and sentences through the Florida court system. 2 After their direct appeals failed, the petitioners began unsuccessful collateral attacks on their judgments and sentences. 3 Following their second journey through the state court system, Galtieri and Matera filed petitions for writs of habeas corpus in the federal district court. These petitions were dismissed for failure to exhaust state remedies. 4 Petitions for writs of habeas corpus were then filed by Galtieri and Matera in the District Court of Appeal of Florida 5 and in the Florida Supreme Court and were denied. 6

Thereafter, the petitions under review here were filed in the court below. Despite the petitioners' three trips through the Florida state court system, the district court found that two of the four constitutional claims they raised had not been presented to the Florida courts. 7

The district court held a consolidated evidentiary hearing on the petitions of Galtieri and Matera. At that hearing, evidence was heard on all the claims asserted by the petitioners. On September 16, 1975, the district judge entered an order finding no merit in one of the exhausted claims: that the failure of a Florida appellate court to rule on a specific point raised on appeal deprived the petitioners of their constitutional right of appeal. 8 Record, vol. 1, at 91-92, No. 75-4169. As to the other exhausted claim, however, the district court concluded that the petitioners had proved their claim of a federal constitutional deprivation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Id.

B. The Brady Claim

Prior to their trial, the petitioners made a general request under Brady for any evidence favorable to the defense. The Brady claim treated by the court below involved the prosecutor's alleged withholding from defense counsel of grand jury testimony of a court witness. This witness, Bruce Braverman, had appeared before a New York grand jury on four occasions. 9 On the first two occasions, Braverman invoked the fifth amendment. He testified, however, at his third and fourth appearances, and his testimonies are relevant to the petitioners' claims. In Braverman's third appearance, he apparently recounted nothing incriminatory to the petitioners. In his fourth appearance, however, Braverman testified that in March, 1966, he met with the petitioners in New York and that they mentioned their plans to travel to Florida for the purpose of making a "score." The Harbor Island Spa had been robbed on March 31, 1966.

Braverman was called at the petitioners' trial as a court witness. Record, transcript of state trial, vol. 3, at 763. His direct testimony, in response to questions posed by the court, was innocuous. During the state's cross-examination, Braverman was impeached with his fourth grand jury testimony. Id. at 790-849. The petitioners, who claimed they were unaware of the third grand jury testimony until Braverman took the stand, then made a specific request to the trial judge for the transcript of that testimony. Id. at 826-27. The judge ordered that the trial proceed without the transcript, with the proviso that the defense could inquire into the third grand jury testimony during its cross-examination. Id. at 836. As we point out in Part III Infra, the substance of the third grand jury testimony was adopted by Braverman during the course of his cross-examination by the defense.


In order to explore the roles of the federal habeas courts in the treatment of "mixed" petitions, it is necessary both to define what exhausted and unexhausted claims are and to identify the conflicting policy considerations involved in the decision whether to dismiss a mixed petition. The federal writ of habeas corpus serves as a "swift and imperative remedy in all cases of illegal restraint or confinement." Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973) (quoting Secretary of State for Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.)). The exhaustion doctrine, however, has long operated to delay federal consideration of constitutional claims raised by state prisoners. 10 This doctrine, which is codified at 28 U.S.C. § 2254(b), (c) (1970), 11 requires that a state prisoner's claim first be presented to the state court system. For a claim to be exhausted, the state court system must have been apprised of the facts and the legal theory upon which the petitioner bases his assertion. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953). The basic rationale for this requirement is that

"it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation . . . . Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter."

Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 838-39, 9 L.Ed.2d 837 (1963) (quoting Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). A major concern is that, without the exhaustion doctrine, the state court system would be isolated from federal constitutional issues and would not have an impetus to develop and apply federal constitutional law. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976); Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094-95 (1970).

In some circumstances, however, it is proper for federal courts to treat claims technically unexhausted. As the Supreme Court stated in Fay v. Noia, "The rule of exhaustion 'is not one defining power but one which relates to the appropriate exercise of power.' " 83 S.Ct. at 839 (quoting Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)). The Supreme Court has "consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint." Id. 83 S.Ct. at 842. Because exhaustion is not considered to be a jurisdictional prerequisite, the federal courts have heard claims not previously considered by the state courts.

The exceptions to the exhaustion doctrine illustrate the tension between the swift vindication of the petitioner's constitutional rights and the comity principles undergirding the doctrine. Whether the reason for reaching an unexhausted claim is termed a satisfaction of or an exception to the doctrine, it is clear that the federal court must weigh the conflicting interests served by the federal writ of habeas corpus and by the exhaustion doctrine before addressing the merits of an unexhausted claim. Exceptions to the exhaustion doctrine have been developed judicially to cover situations where mechanical adherence would not further the goals of the exhaustion doctrine or would frustrate an overriding federal concern.


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