Harding v. State of N. C.
| Decision Date | 20 July 1982 |
| Docket Number | No. 81-6878,81-6878 |
| Parties | Donald Lee HARDING, Appellant, v. STATE OF NORTH CAROLINA, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William A. Reppy, Jr., Durham, N. C., Legal Research Program, Duke Law School, Michael Dalton and Thomas Ewing, Third Year Law Students for appellant.
Barry S. McNeill, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N. C., on brief), for appellee.
Before PHILLIPS, ERVIN and CHAPMAN, Circuit Judges.
North Carolina inmate Donald Lee Harding appeals a district court judgment denying relief on his habeas petition filed under 28 U.S.C. § 2254. The district court found that Harding had not exhausted available state remedies on two of the four claims raised in his habeas petition, but nevertheless addressed and decided all of the claims against petitioner on their merits. The State of North Carolina maintains that the court properly decided the merits of each claim because, relying on our decision in Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir. 1971) (per curiam), it had "conditionally waived" the exhaustion requirement of the habeas statute. Concluding that this conditional waiver cannot properly be accepted by a federal habeas court under 28 U.S.C. § 2254, we find that the district court was presented with a "mixed petition" which, under Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), required dismissal for failure to exhaust all claims.
In February of 1976 a jury convicted Harding in the Superior Court of Iredell County, North Carolina, of three counts of first degree murder. On direct appeal the North Carolina Supreme Court affirmed the convictions but vacated Harding's death sentences, substituting sentences of life imprisonment in their stead. State v. Harding, 291 N.C. 223, 230 S.E.2d 397 (1976).
Harding sought post-conviction relief in the Superior Court on three separate occasions. All three petitions, each of which contained multiple claims, were summarily denied. Harding unsuccessfully petitioned the North Carolina Court of Appeals to grant certiorari to review the denial of over twenty of the claims raised in his first post-conviction petition. He did not seek review of any of the claims raised in either of his other two post-conviction petitions.
On April 10, 1979, Harding filed his habeas petition in federal court urging four distinct claims. 1 The petition did not clearly indicate whether he had attempted to exhaust the available state remedies as to each of the four. The state's answer acknowledged that Harding had fully exhausted three of these four claims by including them in his petition to the North Carolina Court of Appeals but noted that Harding had not similarly sought review of the fourth claim alleging a denial of the constitutional right to effective trial counsel. Nevertheless, the state asked the district court to "adjudicate this contention only to the extent it finds it without merit as a matter of law, Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir. 1971), in which case it should dismiss it on substantive grounds as well."
The district court subsequently determined that Harding had petitioned for state post-conviction review of only two rather than three of the claims as the state had alleged. The court then specifically found that Harding had not exhausted his state remedies as to these last two claims nor shown the absence of an available state corrective process. 2 Nevertheless the court, citing Jenkins, decided to consider all four of Harding's claims on the merits. The court proceeded to do so with great care, denying each, and Harding appealed.
After the submission of briefs in this case, and of course well after entry of the district court's judgment, the Supreme Court decided Rose v. Lundy, supra, holding that, contrary to the practice permitted in this and other circuits, a district court must dismiss in toto habeas petitions containing both unexhausted and exhausted claims. Although the district court here specifically found that Harding attempted exhaustion of only two of the four claims in his petition, the state contends that because of the state's "conditional waiver" of the exhaustion requirement, the two unexhausted claims do not make the instant petition a "mixed" one and that we can therefore review the dismissal of Harding's claims on the merits. 3 We disagree.
Preliminarily, the state appears to have erroneously conceded in its answer to Harding's petition that Harding had fully exhausted all but his final claim and then to have "conditionally waived" the exhaustion requirement as to only that final claim. We have already held that an erroneous concession will not be recognized as a waiver under Jenkins. See Strader v. Allsbrook, 656 F.2d at 68. If Harding's unexhausted third claim was therefore not waived in any manner, its non-exhaustion, standing alone, would require dismissal of the petition under Rose. If, however, as the state urges, the district court did accept the "conditional waiver" of the exhaustion requirement as to both Harding's third and fourth claims, we find such a waiver improper so that on this basis also there would be a failure of exhaustion of all the claims requiring dismissal under 28 U.S.C. § 2254(b).
Because the district court found Harding's claims to be without merit, the full scope of the state's "conditional waiver" procedure has not been run out in this case. Its full workings are, however, obvious. It submits an unexhausted habeas claim for federal court resolution but only upon the condition that the resolution be favorable to the state. The right is reserved to require exhaustion of state remedies rather than suffer an unfavorable federal resolution on the merits. We do not think this comports with the intention of § 2254 nor with fundamental comity principles and we disapprove its further use.
Resolution of pro se petitions, as all federal courts are painfully aware under current conditions, can be difficult and time consuming. Full hearings may be required though exhaustion has been only "conditionally" waived. If after considering a claim a district court is disposed to find it meritorious, we are assured by the state that it would seek dismissal under its reserved right to require exhaustion of state remedies. Indeed, we are forthrightly told that the condition would as well be invoked following a reversal by this court of a district court's denial of a claim on the merits.
The effect of this is to render any decision of a district court or of this court upholding a habeas petitioner's unexhausted claim as to which a conditional waiver has been entered a complete...
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