Niziolek v. Ashe

• Decision Date: 24 November 1982
• Docket Number: No. 82-1305,82-1305
• Citation: 694 F.2d 282
• Parties: 11 Fed. R. Evid. Serv. 1784 Joseph NIZIOLEK, Jr., Petitioner, Appellant, v. Michael ASHE, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 282

694 F.2d 282

11 Fed. R. Evid. Serv. 1784

Joseph NIZIOLEK, Jr., Petitioner, Appellant, v. Michael ASHE, et al., Respondents, Appellees.

No. 82-1305.

United States Court of Appeals First Circuit.

Argued Sept. 16, 1982.

Decided Nov. 24, 1982.

John M. Thompson, Springfield, Mass., for petitioner, appellant.

William D. Luzier, Jr., Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty., Gen., Chief, Criminal Appellate Division, Boston, Mass., were on brief, for respondents, appellees.

Before COFFIN, Chief Judge, DAVIS ^* and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Petitioner-appellant Niziolek appeals from a judgment of dismissal entered by the United States District Court for the District of Massachusetts denying his petition for a writ of habeas corpus. The petition asserted nine grounds for relief. The district court first dismissed one ground (No. 8), a Brady-Giglio claim, for failure of exhaustion. In a detailed and comprehensive opinion, the court found that petitioner had failed to substantiate his eight other claims. In his brief to this court, petitioner has chosen not to pursue three of the grounds for relief (Nos. 2, 5, and 7) contained in his original petition and presented to the district court. These claims for relief are deemed abandoned. See Red v. Blackburn, 636 F.2d 1027, 1028 (5th Cir.1981) (per curiam).

I

The petition filed before this court contains five exhausted claims and one unexhausted claim--a "mixed" petition. The first issue, therefore, is the applicability of Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

In the course of the district court proceedings, the Commonwealth did not object to the court's consideration of the exhausted claims. After the case was submitted to the district court, but before the opinion issued on March 9, 1982, the Supreme Court, on March 3, 1982, handed down its decision in Rose v. Lundy. This decision, which adopted a "total exhaustion" rule, has changed established First Circuit procedure. Prior to Rose, district courts within the First Circuit considered the merits of the exhausted claims in a mixed habeas petition and dismissed the unexhausted claims. ¹ Katz v. King, 627 F.2d 568, 574 (1st Cir.1980); Miller v. Hall, 536 F.2d 967, 969-70 (1st Cir.1976). In this case it would appear that neither the district court nor the parties were aware of Rose, which, considering the respective dates, is understandable.

Rose holds that the exhaustion rule of 28 U.S.C. Sec. 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus if it contains any claims not exhausted in the state courts. This rule of total exhaustion precludes district court consideration of the exhausted claims contained in a mixed petition; the district court must dismiss such a petition in its entirety. After dismissal, the petitioner is left with a choice: return to the state courts to exhaust all claims or resubmit an amended petition presenting only the exhausted claims. --- U.S. at ----, 102 S.Ct. at 1199.

By choosing to amend the petition so as to exclude the unexhausted claims, a petitioner does not automatically waive the right to pursue these claims at a later time. If the amended petition is denied by the district court, the petitioner may return to the state courts to seek state relief in connection with the unexhausted claims. Once all state remedies are exhausted, the petitioner is free to file a second habeas petition in the federal district court asserting these claims as new grounds for relief.

In Part III-C of her opinion in Rose --a section joined only by a plurality of the Court--Justice O'Connor indicates that a prisoner who chooses to amend, rather than complete exhaustion, risks forfeiting consideration of his or her unexhausted claims in the federal courts. A district court faced with a second habeas petition may dismiss pursuant to 28 U.S.C. Sec. 2254 Rule 9(b), if it finds that "the failure of the petitioner to assert those [new] grounds in a prior petition constituted an abuse of the writ." --- U.S. at ----, 102 S.Ct. at 1204 (quoting 28 U.S.C. Sec. 2254 Rule 9(b)). Justice Brennan, dissenting from Part III-C of the opinion, concluded that, absent unusual circumstances, the remedy of dismissal for abuse of the writ cannot be employed against a second habeas petition. --- U.S. at ----, 102 S.Ct. at 1210 (Brennan, J., concurring in part and dissenting in part). ²

We do not believe that Rose establishes the exhaustion rule contained in 28 U.S.C. Sec. 2254(b), (c) as a jurisdictional requirement. Rose is not phrased in jurisdictional terms; it does not indicate that either the Constitution or Congress has directly confined the federal courts' power over habeas cases. Further, the Court explicitly states that the text of Sec. 2254 does not compel a "total exhaustion" rule and admits that "in all likelihood Congress never thought of the problem [of mixed petitions]." --- U.S. at ----, 102 S.Ct. at 1202. The Court adopts the "total exhaustion" rule because it "promotes comity and does not unreasonably impair the prisoner's right to relief." --- U.S. at ----, 102 S.Ct. at 1205. This is not the language of a jurisdictional mandate. We, therefore, reaffirm the First Circuit position that "[t]he exhaustion requirement is not a limit on the jurisdiction of the federal courts but rather, is a doctrine, arising from principles of federal-state comity restraining the appropriate exercise of that jurisdiction." Dirring v. Massachusetts, 459 F.2d 953, 955 (1st Cir.1972) (per curiam). See also Bowen v. Tennessee, No. 81-5386, slip op. at 2 (6th Cir. July 30, 1982).

The opinion in Rose does not indicate how its "total exhaustion" rule should be applied to cases caught in the time warp, i.e., cases decided by district courts prior to the date of Rose and pending on appeal after its effective date. Nor have the Court's subsequent decisions shed much light on this issue. Since Rose, the Supreme Court has considered three cases presenting mixed habeas petitions. On March 8, 1982, five days after Rose, the Court remanded two cases to federal appellate courts with directions that these courts instruct the appropriate district court to dismiss the mixed habeas petition. Duckworth v. Cowell, --- U.S. ----, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982); Rodriguez v. Harris, --- U.S. ----, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982). In May of 1982, however, the Court remanded a mixed petition case to the circuit court "for further consideration" in light of Rose. Bergman v. Burton, --- U.S. ----, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982). This latest action may indicate that the Supreme Court does not feel that the Rose "total exhaustion" rule should automatically be applied to all cases pending at the time Rose issued. ³ We do not read these three cryptic Supreme Court opinions as compelling a dismissal of all mixed petition cases caught in the time warp.

Not surprisingly, the circuits are in disagreement as to how they should handle such cases. At least four circuits have adopted a policy of vacating the district court opinion and remanding to the district court with instructions to dismiss the mixed petitions. In United States ex rel Clauser v. Shadid, 677 F.2d 591, 594 (7th Cir.1982) (decided May 7, 1982), the Seventh Circuit vacated the district court judgment and remanded with directions to dismiss for lack of jurisdiction. In Slotnick v. O'Lone, 683 F.2d 60 (3d Cir.1982) (decided June 28, 1982), the Third Circuit felt compelled by Rose to vacate the district court's denial of the writ. The court made the following observation: "The district court will undoubtedly see [the petitioner] again, and so will we. As an intermediate appellate court, however, we are not free to consider whether the burdens imposed by the Rose v. Lundy rule will be commensurate with the benefits articulated in its support by the Supreme Court." Id. at 61. Similarly, in Jones v. Hess, 681 F.2d 688, 694-96 (10th Cir. 1982) (decided June 1, 1982), the Tenth Circuit felt it must apply the "total exhaustion" rule despite petitioner's lengthy incarceration since 1971 and the possibility of further delay. In Gulliver v. Dalsheim, 687 F.2d 655 (2d Cir.1982), a panel of the Second Circuit sua sponte remanded a mixed petition to the district court for dismissal, amendment to delete unexhausted claims, or a determination that the petition had already been so amended, asserting that "[t]he Supreme Court has applied Rose retroactively." 687 F.2d at 657 n.2.

Two circuits, however, have chosen to review the exhausted claims on the merits despite Rose. In a recent opinion, the Sixth Circuit held that the "total exhaustion" rule would not be applied to cases where the Rose issue is raised for the first time on appeal. Bowen v. Tennessee, No. 81-5386, slip op. at 2-3 (6th Cir. July 30, 1982). Similarly, the Eighth Circuit has chosen to review the merits of mixed petitions in certain situations. The court described its practice as follows:

We do not apply the total exhaustion rule here to a habeas case in which the exhausted claims had been fully litigated and decided in the federal district court prior to the Lundy decision. In our view it would constitute a great waste of judicial resources to apply Lundy retroactively and vacate the district court's determination on the merits. The end result of such a retroactive application of Lundy could require the federal district court and this court to reconsider these same claims at another time. This we decline to do without an express direction from the Supreme Court.

Dunn v. Wyrick, 679 F.2d 731, 733 (8th Cir.1982).

We agree with the Sixth and Eighth Circuits and hold that Rose does not require a federal appellate court to decline review of a district court decision addressing the merits of the exhausted...