Gaylor v. Harrelson, Civil Action No. 4:96-CV-0205-HLM.

• Citation: 962 F.Supp. 1498
• Decision Date: 03 April 1997
• Docket Number: Civil Action No. 4:96-CV-0205-HLM.
• Parties: James W. GAYLOR, JR., Petitioner, v. E.L. HARRELSON, warden, et al., Respondents.
• Court: U.S. District Court — Northern District of Georgia

Page 1498

962 F.Supp. 1498

James W. GAYLOR, JR., Petitioner, v. E.L. HARRELSON, warden, et al., Respondents.

Civil Action No. 4:96-CV-0205-HLM.

United States District Court, N.D. Georgia.

April 3, 1997.

ORDER

HAROLD L. MURPHY, District Judge.

This habeas corpus petition is before the Court on Respondents' Motion to Dismiss [8] and the Report and Recommendation of Magistrate Judge William W. Byington, Jr. [11].¹

I. Background

On May 15, 1980, a jury sitting in Floyd County, Georgia, convicted Petitioner of murder. Petitioner filed a direct appeal to the Georgia Supreme Court, which affirmed the conviction on June 17, 1981. Petitioner has not filed a habeas petition in State court. Petitioner's federal petition, filed pursuant to 28 U.S.C.A. § 2254 (1994), presents a "mixed" petition, that is, the petition includes claims that have, and have not, been exhausted in State court. The Magistrate Judge, relying on the fact that the petition contains nonexhausted claims, recommends that the Court dismiss the petition without prejudice, pursuant to the 1996 revisions to § 2254(b)(1), to allow Petitioner an opportunity to exhaust his claims in State court.

II. Discussion

In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Pub.L. No. 104-132, 110 Stat. 1214. The AEDPA preserves the traditional exhaustion requirement, which requires a district court to dismiss habeas claims that the petitioner has a right to raise, by any available procedure, in State court. § 2254(b)(1)(A) & (c). The AEDPA also leaves undisturbed the holding in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that a "mixed" petition, containing both exhausted and nonexhausted claims, must be dismissed under the exhaustion requirement. 455 U.S. at 510, 102 S.Ct. at 1199.

The AEDPA, however, contains two significant changes. First, the AEDPA eliminates a district court's ability to infer a State's waiver of the exhaustion requirement from the State's failure to expressly invoke the exhaustion requirement.² § 2254(b)(3). Under the revised statute, a waiver can be found only if the State, through counsel, expressly waives the requirement. Id.; Hernandez v. Johnson, 108 F.3d 554, 564-65 (5th Cir.1997).

Second, the AEDPA confers upon a district court the discretion to deny a habeas petition on the merits, notwithstanding the petitioner's failure to exhaust the remedies available in State court. § 2254(b)(2). When read in conjunction with the exhaustion requirement contained in § 2254(b)(1) and the waiver requirement contained in § 2254(b)(3), § 2254(b)(2) creates a confusing statutory framework within which courts must consider habeas petitions containing nonexhausted claims.

In Hoxsie v. Kerby, the Tenth Circuit noted this confusion and observed that § 2254(b)(2), "standing alone, does not contain the standard for determining when a court should dismiss a petition on the merits instead of insisting on complete exhaustion." 108 F.3d 1239, 1243 (10th Cir.1997). Hoxsie then interpreted § 2254(b)(2) in conjunction with Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), in which the Court held that, "if [the court] is convinced that the petition has no merit, a belated application of the exhaustion rule might simply require useless litigation in the state courts." 481 U.S. at 133, 107 S.Ct. at 1674. Thus, Hoxsie concluded that when habeas claims are without merit, the interests of comity and federalism — as well as the conservation of overburdened judicial resources — are better served if the federal court addresses the merits of the habeas petition regardless of the petitioner's failure to exhaust the claims in State court. Hoxsie, 108 F.3d at 1242-43.

This Court also is guided by the sound policies set forth in Granberry:

If, for example, the case presents an issue on which an unresolved question of fact or of state law might have an important bearing, both comity and judicial efficiency may make it appropriate for the court to insist on complete exhaustion to make sure that it may ultimately review the issue on a fully informed basis. On the other hand, if it is perfectly clear that the applicant does not raise even a colorable federal claim, the interests of the petitioner, the warden, the state attorney general, the state courts, and the federal courts will all be well served [if] ... the district court denies the habeas petition.³

481 U.S. at 134-35, 107 S.Ct. at 1675; Atkins v. Singletary, 965 F.2d 952, 957 (11th Cir. 1992) (applying Granberry). When deciding whether the Court may deny a petition on the merits, pursuant to § 2254(b)(2), the test is whether it is "perfectly clear" that the petitioner has failed to state "even a colorable claim." Granberry, 481 U.S. at 134-35, 107 S.Ct. at 1675.

Although this interpretation requires the district court to review § 2254 petitions to determine whether they contain colorable claims, this review is not newly assigned to the district court. Rule 4 of the Supreme Court's rules governing § 2254 cases requires the district court promptly to examine a newly filed habeas petition and summarily deny the petition "if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." The Court reads § 2254(b)(2) as being consistent with Rule 4, in that § 2254(b)(2) provides statutory authority for the Court to deny frivolous habeas petitions regardless of whether the petitioner has exhausted his claims in State courts. Cf. Granberry, 481 U.S. at 135 n. 7, 107 S.Ct. at 1675 n. 7 ("the District Court's dismissal of a nonmeritorious petition under Rule 4 pretermits consideration of the issue of nonexhaustion"). Similarly, § 2254(b)(2) allows the Court to address nonexhausted habeas claims on the merits even if the State strenuously invokes the exhaustion doctrine pursuant to § 2254(b)(3) — although the sole possibility of denial on the merits hardly can be said to prejudice the State.

Section 2254(b)(2) thus creates the possibility that § 2254 petitions will undergo three stages of review by the courts. First, the federal court must examine the petition to determine if denial pursuant to § 2254(b)(2) is appropriate. If not, the petitioner is sent back to the State court for a second review of his claims. If the State court denies the petition, the petitioner may re-file in federal court, resulting in a third stage of review of the same habeas claims.

Consequently, the Court believes that the first stage of review, performed pursuant to § 2254(b)(2), initially requires only a cursory examination of the petitioner's claims. If this brief examination arouses the slightest suspicion that the claims have merit, dismissal without prejudice is appropriate to allow the State court an opportunity to consider the claims. If no such suspicion is aroused, the Court may proceed to perform the meticulous review necessary to determine if denial on the merits is appropriate.

From an efficiency standpoint, the State may assist the district court in deciding whether a meticulous review of the petitioner's claims is necessary at this first stage. An express waiver by the State of the exhaustion requirement, combined with an express statement that the petitioner lacks even a colorable claim, would strongly suggest that a meticulous review of the petition at the first stage is warranted, because denial on the merits by the district court may be appropriate. The State stands in a particularly advantageous position to make this suggestion, as in most cases the State already will have filed an Answer and familiarized itself with the facts and law underlying the petitioner's claims.

On the other hand, an express invocation of the exhaustion requirement would strongly suggest that only a cursory examination of the petitioner's claims is necessary, as the claims are inappropriate for denial pursuant to § 2254(b)(2). As noted by one commentator:

These innovations enhance a state's ability to use the exhaustion doctrine to its advantage. In cases in which a state's attorney is confident that a claim lacks merit and thus is primarily concerned that the claim should be determined quickly, he can simply waive the usual rule that a prisoner must first take the claim to state court.

Larry W. Yakle, A Primer of the New Habeas Corpus Statute, 44 Buff. L.Rev. 381, 386 (1996). Of course, for the State's suggestion to have any value, the State must exercise its utmost discretion when invoking or waiving the exhaustion requirement; a statement that a habeas petition is frivolous, included as a matter of course, will have no value whatsoever.

In summary, the Court holds that § 2254(b)(2) confers upon the district court the discretion⁴ to deny a habeas petition on the merits,...