Jenkins v. Fitzberger, 15254.

• Citation: 440 F.2d 1188
• Decision Date: 16 April 1971
• Docket Number: No. 15254.,15254.
• Parties: Linver JENKINS, Appellant, v. Preston L. FITZBERGER, Warden, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

440 F.2d 1188 (1971)

Linver JENKINS, Appellant, v. Preston L. FITZBERGER, Warden, Appellee.

No. 15254.

United States Court of Appeals, Fourth Circuit.

April 16, 1971.

Linver Jenkins, pro se.

Francis B. Burch, Atty. Gen., for appellee.

Before BRYAN, WINTER, and CRAVEN, Circuit Judges.

PER CURIAM:

Jenkins filed a petition for habeas corpus alleging a number of grounds for relief. One of the grounds, that there was insufficient evidence to support the conviction, was raised on direct appeal to the Maryland Court of Special Appeals. The district court dismissed this claim on the merits. A review of the trial transcript convinces us that the district court was clearly correct in determining that the record is not "so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment," Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), and we affirm the dismissal of this claim.

None of the other claims raised by Jenkins in his petition were raised on direct appeal. Nor did Jenkins raise any of them in an action under the Maryland Post Conviction Procedure Act. The district court dismissed these claims for failure to meet the exhaustion of available state remedies requirement of 28 U.S.C. § 2254.¹ Although it appears that Jenkins did not present these claims to the state appellate courts and that procedures were available for him to do so, we feel the district court should have dealt with Jenkins' claims on the merits.

While noting that Jenkins had not exhausted his state court remedies, the answer filed by the Maryland Attorney General expressly requested that the district court reach the merits:

"4. Notwithstanding the fact that Petitioner has never raised his contentions by way of post-conviction proceedings, and thus has failed to exhaust his state remedies, and that he has not utilized the avenue of appeal which is available to him under that mode of collateral attack, this Court should dismiss the instant proceedings with prejudice, since each of the contentions raised by the Petitioner * * * are obviously patently frivolous and no useful purpose can be served by requiring the Petitioner to first exhaust his state remedies, particularly in light of the fact here that Petitioner\'s present sentences have expired and continuing litigation as to the instant proceedings would be purposeless."

Since the exhaustion requirement of 28 U.S.C. § 2254 "is not a jurisdictional concept but simply a flexible matter of comity," Williams v. Coiner, 392 F.2d 210, 213 n. 2 (4th Cir. 1968), we think the federal courts may in the interest of justice and expedition accept waiver of exhaustion by the state. Kelly v. North Carolina, 276 F.Supp. 200, 205 (E.D.N.C. 1967). Cf. Brown v. Fogel, 387 F.2d 692 (4th Cir. 1967); United States ex rel. Boyance v. Myers, 372 F.2d 111 (3rd Cir. 1967); Warren v. Connor, 365 F.2d 590 (5th Cir. 1966); Tolg v. Grimes, 355 F.2d 92 (5th Cir. 1966).² Concluding that there is no substantive merit to any of Jenkins' claims, the state, through its lawyer, the Attorney General, has clearly made that choice here and for good reason. A dismissal on the merits may prevent the possibility that the state would be required to answer a new petition in the state courts and a...