McGee v. Estelle

Decision Date16 January 1984
Docket NumberNo. 81-1498,81-1498
Citation722 F.2d 1206
PartiesPrado McGEE, Jr., Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James W. Rice, Houston, Tex., for petitioner-appellant.

Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.


ALVIN B. RUBIN, Circuit Judge:

The federal habeas corpus statute provides that an "application in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. Sec. 2254(b). We reheard this case en banc to consider whether the state may waive this statutory requirement and, if so, whether the state's attorney general has the power to act on behalf of the state. In addition, we consider whether a state's contention that the applicant failed to present his objection at the initial state trial implicitly raises the defense of non-exhaustion, whether the applicant's failure to exhaust state remedies may be raised as a defense by the state for the first time on appeal, and whether, if the state does not raise the issue, this court may do so sua sponte.


After a trial by jury, Prado McGee, Jr. was convicted by the State of Texas in 1977 of theft of property valued between $200 and $10,000, a third degree felony, enhanced by two prior felony convictions, for theft in 1960 and for burglary in 1969. This was in accordance with the requirements of the Texas Penal Code, which provides that, if a convicted person is shown to have previously been finally convicted of two felony offenses, his sentence must be increased or "enhanced" and he shall be punished by confinement in the Texas Department of Corrections for life. Tex.Penal Code Ann. Sec. 12.42(d) (Vernon 1974). McGee's conviction was affirmed by the Texas Court of Criminal Appeals in an unreported per curiam opinion.

Texas Criminal trials are bifurcated. Tex.Penal Code Ann. Sec. 37.07 (Vernon 1974). After a verdict of guilty is received, the jury is informed of the facts affecting the punishment that should be imposed and it then assesses that punishment unless the defendant has elected to have the judge do so. McGee sought habeas corpus in state court on the ground that his 1960 conviction was void because he was denied the assistance of counsel at the sentencing phase of that trial and, as a result, was not advised of his right to appeal the conviction. His application was dismissed without prejudice because he had not attested to his pleadings as Texas law required. He did not attempt to correct this procedural defect. Because McGee failed to attest his state habeas petition, no Texas court has reviewed the merits of his constitutional claim.

McGee then filed an application for habeas in federal district court. The State of Texas, appearing through its Attorney General, filed a motion to dismiss and answer. In accordance with rule 5 of the Rules Governing Section 2254 Cases (Section 2254 Rules), which require the answer to "state whether the petitioner has exhausted his state remedies including any post-conviction remedies available to him," the state asserted that it "believe[d] that the petitioner has sufficiently exhausted his available state remedies" and sought dismissal of the complaint pursuant to rule 9(a) of the Section 2254 Rules on the ground that the challenged conviction had occurred more than nineteen years before the first attack on it was made in Texas state court and that, therefore, the state had been prejudiced in its ability to respond to the petition by the delay in its filing. Acting on a magistrate's recommendation, the federal district court found that the pertinent time frame by which the state's claim of undue delay must be measured began when the 1960 conviction was used for enhancement purposes. 1 The court adopted the magistrate's finding that the 1977 conviction had not become final until November 15, 1978, and that measuring from then, the petition had not been unduly delayed. But the court decided that the petition lacked merit because, even if the 1960 conviction were invalid, the prosecutor had proved at least two other valid and final convictions. The court also rejected for want of a showing of prejudice McGee's claim that his counsel in the 1977 trial had been ineffective in failing to object to the introduction of the 1960 conviction.

McGee appealed. In responding to his brief, the state challenged the district court's failure to dismiss the petition under rule 9(a) of the Section 2254 Rules. It then asserted that, by failing to voice a contemporaneous objection to introduction of the 1960 conviction when it was offered in evidence, the petitioner had lost his right to assert this claim under the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); that the 1960 theft conviction was not invalid and was properly used to enhance McGee's punishment; and that McGee had received effective assistance of counsel. It did not question his exhaustion of state remedies. Labelling them "threshold issues," the panel that considered McGee's appeal raised sua sponte the questions whether McGee had exhausted state remedies and, if not, whether the state had waived his failure to do so. See 704 F.2d 764, 768 (5th Cir.1983). Finding that he had not exhausted state remedies and that the state had not intended to waive the failure, the panel remanded the case to the district court for dismissal without prejudice. District Judge Eldon McMahon, sitting with the panel by designation, dissented.


After adoption of the fourteenth amendment, prohibiting the states from denying any person life, liberty, or property without due process of law, Congress gave the federal courts jurisdiction to issue writs of habeas corpus for a prisoner "in custody in violation of the Constitution, or of any treaty or law of the United States." Act of February 5, 1867, chap. 28, 14 Stat. 385 (1867). Act of March 3, 1885, c. 353, 23 Stat. 437; R.S. Sec. 753. It was not necessary to await the termination of state proceedings; the power thus conferred could be exercised during the progress of those proceedings.

Whether a federal court was bound to exercise the power thus conferred was first considered by the Supreme Court in Ex parte Royall. 2 The Court noted that the question of the constitutionality of the law under which Royall had been indicted "must necessarily arise" in the state proceedings and the state court was competent to pass on that question. Under such circumstances, it held, the statute does not "imperatively require" the federal court "to wrest the petitioner from the custody of the state officers...." 3 The federal court "has the power to do so" but "it is not bound in every case to exercise such power immediately upon application being made for the writ." 4 A federal court has "discretion as to the time and mode in which it will exert the powers conferred upon it." 5 Absent "special circumstances requiring immediate action," the federal court may deny an application for habeas corpus until "the state court shall have finally acted upon the case." 6

Federal court discretion to deny habeas corpus until state remedies have been exhausted evolved into a requirement that first recourse be to state courts. 7 In 1948, the habeas corpus statute was revised to provide "an application ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 8 This was intended merely to codify the doctrine as it had been developed by the Supreme Court. 9 As Royall 's language shows, and as courts and commentators generally agree, the requirement of exhaustion is not jurisdictional but is merely a matter of comity. 10 If exhaustion were truly jurisdictional, we could not dispense with it as we do when state courts have had the opportunity to address the merits of petitioner's constitutional claims but have not done so. Francisco v. Gathright, 419 U.S. 59, 63, 95 S.Ct. 257, 259, 42 L.Ed.2d 226, 229 (1974) (per curiam); Houston v. Estelle, 569 F.2d 372, 375 (5th Cir.1978); West v. Louisiana, 478 F.2d 1026, 1034 (5th Cir.1973) (long and unjustified delay in the particular case), aff'd in pertinent part, 510 F.2d 363 (5th Cir.1975) (en banc). We could not accept acknowledgments by attorneys general that state remedies are ineffective or state procedures futile without examining and ruling on the substantive correctness of each acknowledgment. We could not entertain a petition if there has been an intervening change in state law since petitioner exhausted his state remedies. See Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 196, 19 L.Ed.2d 41, 43-44 (1967) (per curiam). There could not be an "unusual circumstances" exception to exhaustion. See United States ex rel Trantino v. Hatrack, 563 F.2d 86, 95-96 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978).

The doctrine of comity arises from the nature of our federal system, the joinder of sovereign states into a single union. 11 Mutual respect among sovereigns for the legislative, executive, or judicial acts of each other constitutes the heart of the doctrine. Considerations of finality, avoiding piecemeal litigation, and preventing disruption of custody also support comity. 12 It would pervert these principles to require a state, in the name of comity, unwillingly to endure the expense and delay of a remand to state court if the federal constitutional question must ultimately be resolved in a federal forum. See Thompson v. Wainwright, 714 F.2d 1495, 1504 (11th...

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