Graham v. Solem

Decision Date05 March 1984
Docket NumberNo. 82-1371,82-1371
Citation728 F.2d 1533
PartiesRobert Gray GRAHAM, Appellee, v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Mark V. Meierhenry, Atty. Gen., Grant Gormley, Asst. Atty. Gen., Pierre, S.D., for appellants.

Sarah Richardson, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, en banc.

Herman Solem, Warden of the South Dakota State Penitentiary at Sioux Falls, and Mark Meierhenry, Attorney General of South Dakota, appeal from a final judgment entered in the District Court for the District of South Dakota granting a writ of habeas corpus to petitioner Robert Graham. For the reasons discussed below, the judgment of the district court is reversed.

Two issues were argued and submitted to the court sitting en banc: (1) whether Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), should apply retroactively and (2) whether the district court erred in holding that the complaining witness' in-court identification of Graham was the result of impermissibly suggestive identification procedures, was unreliable, and therefore inadmissible. Because a different majority of the court decided each issue, a different member of the court prepared the majority opinion for each issue. The dissenting opinions immediately follow the majority opinion for each issue.


McMILLIAN, Circuit Judge, with whom ROSS, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, join.

Petitioner Graham and his three co-defendants, Reiman, Onstott and Elliott, were tried and found guilty by a jury in state court of kidnapping and raping a Yankton, South Dakota, woman. All four defendants appealed to the South Dakota Supreme Court, which reversed Onstott and Elliott's kidnapping convictions, but upheld all the other convictions. State v. Reiman, 284 N.W.2d 860, 874 (S.D.1979). Petitioner Graham subsequently filed a petition for a writ of habeas corpus in the federal district court. The petition reiterates basically the same points made to the state supreme court. The district court granted the writ, holding that the use of the victim's identification of Graham at trial was a violation of Graham's federal constitutional right to due process. The state appealed, challenging both the district court's power to address the merits of the issues raised in Graham's petition and the district court's decision on the merits.

The first issue raised in this appeal is whether the United States Supreme Court's recent decision in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379, requires us to dismiss Graham's habeas corpus petition. Rose v. Lundy held that federal district courts may not entertain habeas corpus petitions which contain both exhausted and unexhausted claims. Id. at 522, 102 S.Ct. at 1205. The state contends that Graham has failed to exhaust several of the nineteen claims raised in his habeas petition and, therefore, the entire petition must be dismissed. Graham's position is that he has exhausted all nineteen claims. 1 As an alternate argument, Graham maintains that this court should not apply Rose v. Lundy in his case because the district court issued the writ on the basis of a claim that was exhausted and did so before Rose v. Lundy was decided.

First, we determine whether the habeas petition before us contains any unexhausted claims.

A. Exhaustion Requirement

A federal habeas petitioner satisfies the exhaustion requirement of 28 U.S.C. Sec. 2254(b) (1976) when he either (1) has no other presently available state remedies to pursue or (2) has fairly presented the substance of his federal claims to the state's courts. Moore v. Wyrick, 668 F.2d 1007, 1009 (8th Cir.1982). Under South Dakota law, Graham still has post-conviction remedies available to him. 2 Thus, we must examine Graham's brief before the South Dakota Supreme Court to determine whether he fairly presented that court with an opportunity to pass upon the federal constitutional grounds of his claims. 3 Citation to a provision of the federal constitution or a case addressing the constitutional basis of the claim, or a discernible reference to a federal constitutional right is all that is normally required. Anderson v. Harless, --- U.S. ----, 103 S.Ct. 276, 277-78 & n. 3, 74 L.Ed.2d 3 (1982) (per curiam); Morrow v. Wyrick, 646 F.2d 1229, 1232 (8th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 401, 70 L.Ed.2d 216 (1981); Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980). In making this assessment, we must bear in mind that state courts, as co-equal guardians of constitutional rights, are able to recognize federal constitutional issues even when no explicit reference is made to the federal constitution. See Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.

A review of Graham's state supreme court brief reveals that he has failed to exhaust issues 5, 6, 9, 10, 11, 14 and 15 raised in his petition for a writ of habeas corpus. 4 We are faced, therefore, with a mixed 5 habeas petition and must decide whether to apply Rose v. Lundy retroactively.

B. Retroactivity of Rose v. Lundy

We are aware that almost all of the circuits have applied Rose v. Lundy retroactively. See, e.g., Bowen v. Tennessee, 698 F.2d 241, 242-43 (6th Cir.1983) (en banc); Burns v. Estelle, 695 F.2d 847, 851-52 & n. 2 (5th Cir.1983); Gulliver v. Dalsheim, 687 F.2d 655, 657 & n. 3 (2d Cir.1982); Harding v. North Carolina, 683 F.2d 850, 851-52 (4th Cir.1982); Slotnick v. O'Lone, 683 F.2d 60, 61 (3d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); Jones v. Hess, 681 F.2d 688, 695 & n. 9 (10th Cir.1982); United States ex rel. Clauser v. Shadid, 677 F.2d 591, 593 (7th Cir.1982). Contra Johnson v. Balkcom, 695 F.2d 1320, 1322 (11th Cir.1983); Niziolek v. Ashe, 694 F.2d 282, 285-87 (1st Cir.1982). 6 We also are aware that this circuit has mixed opinions on the subject. Compare Dunn v. Wyrick, 679 F.2d 731, 733 (8th Cir.1982) (Rose v. Lundy will not be applied to habeas corpus petitions where exhausted claims have been fully litigated and decided in the federal district court prior to the Rose v. Lundy decision), and Romano v. Wyrick, 681 F.2d 555, 556 & n. 3 (8th Cir.1982) (mixed petition need not be dismissed in its entirety), with Stewart v. Parratt, 682 F.2d 757, 758 (8th Cir.1982) (remanding case to district court to reconsider in light of Rose v. Lundy).

This court's most recent opinion on the effect of Rose v. Lundy was Richards v. Solem, 693 F.2d 760, 763-64 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In Richards, the court chose to follow Dunn for three reasons: (1) Dunn was directly on point because it involved a district court judgment that denied the writ; (2) it felt Dunn was persuasive in arguing that retroactive application of the exhaustion requirement would waste judicial resources; and (3) non-retroactive application of Rose v. Lundy to the petition before it comported with the comity purpose of the total exhaustion rule because the federal district court and circuit courts in Richards agreed with the state courts that post-conviction relief should be denied. See also Royal v. Wyrick, 694 F.2d 525, 527 n. 2 (8th Cir.1982).

In following Dunn, the Richards panel stated that three post-Rose v. Lundy United States Supreme Court orders did not require a different result. Richards, 693 F.2d at 764. All three orders involved cases in which mixed habeas petitions were decided on the merits by the federal district and circuit courts before Rose v. Lundy was handed down. In two of these orders, Duckworth v. Cowell, 455 U.S. 996, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982), and Rodriquez v. Harris, 455 U.S. 997, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982), the Court granted certiorari, vacated the judgment, and remanded the case to the court of appeals with instructions to direct the district court to dismiss the petition for writ of habeas corpus. In the third case, Bergman v. Burton, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982) (order), the Court vacated the judgment and remanded the case to the court of appeals for further consideration in light of Rose v. Lundy. The Supreme Court's orders in Duckworth and Rodriquez, which direct the lower courts to apply the total exhaustion rule to cases decided before Rose v. Lundy, permit no other conclusion than that the Supreme Court is applying Rose v. Lundy retroactively. 7

The Richards panel, however, distinguished these cases because they all involved lower federal court decisions which granted the writ of habeas corpus, while in Richards, the writ was denied. The reasoning implicit in this distinction is that the failure to retroactively apply the total exhaustion rule to cases that granted the writ would create the kind of federal-state friction assailed in Rose v. Lundy, yet no such friction would be generated when the federal court agrees with the state courts in denying post-conviction relief. Thus, while all the reasons militating against the total exhaustion rule are present in cases in which the federal court has already agreed with the state courts on the merits, none of the purposes justifying the total exhaustion rule would be served by retroactively applying Rose v. Lundy to such cases.

This distinction has the force of logic behind it, but it overlooks the fact that both the district court and the court of appeals in Rodriquez denied the petition for writ of habeas corpus. See Rodriquez v. Harris, No. 79-CIV-4177 (S.D.N.Y. July 9, 1980) (order adopting magistrate's recommendation to deny the writ), aff'd mem., 659 F.2d 1062 (2d Cir.1981). The Supreme Court's order that the total exhaustion rule must be applied even to a lower...

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