Rose v. Lundy, No. 80-846

• Court: United States Supreme Court
• Writing for the Court: BLACKMUN; BRENNAN; WHITE; STEVENS
• Citation: 71 L.Ed.2d 379,455 U.S. 509,102 S.Ct. 1198
• Parties: Jim ROSE, Warden, Petitioner v. Noah Harrison LUNDY
• Docket Number: No. 80-846
• Decision Date: 03 March 1982

455 U.S. 509 102 S.Ct. 1198 71 L.Ed.2d 379 Jim ROSE, Warden, Petitioner

v.

Noah Harrison LUNDY.

No. 80-846. Argued Oct. 14, 1981. Decided March 3, 1982. Syllabus

Title 28 U.S.C. §§ 2254(b) and (c) provide that a state prisoner's application for a writ of habeas corpus in a federal district court based on an alleged federal constitutional violation will not be granted unless the applicant has exhausted the remedies available in the state courts. After respondent was convicted of certain charges in a Tennessee state court and his convictions were affirmed, he unsuccessfully sought postconviction relief in a state court. He then filed a petition in Federal District Court for a writ of habeas corpus under § 2254, alleging four specified grounds of relief. The District Court granted the writ, notwithstanding the petition included both claims that had not been exhausted in the state courts and those that had been. The Court of Appeals affirmed.

Held : The judgment is reversed and the case is remanded.

624 F.2d 1100, reversed and remanded.

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John C. Zimmermann, Nashville, Tenn., for petitioner, pro hac vice, by special leave of Court.

D. Shannon Smith, Cincinnati, Ohio, for respondent.

Justice O'CONNOR delivered the opinion of the Court, except as to Part III-C.

In this case we consider whether the exhaustion rule in 28 U.S.C. §§ 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts. Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.

I

Following a jury trial, respondent Noah Lundy was convicted on charges of rape and crime against nature, and sentenced to the Tennessee State Penitentiary.¹ After the Tennessee Court of Criminal Appeals affirmed the convictions and the Tennessee Supreme Court denied review, the respondent filed an unsuccessful petition for post-conviction relief in the Knox County Criminal Court.

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The respondent subsequently filed a petition in Federal District Court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging four grounds for relief: (1) that he had been denied the right to confrontation because the trial court limited the defense counsel's questioning of the victim; (2) that he had been denied the right to a fair trial because the prosecuting attorney stated that the respondent had a violent character; (3) that he had been denied the right to a fair trial because the prosecutor improperly remarked in his closing argument that the State's evidence was uncontradicted; and (4) that the trial judge improperly instructed the jury that every witness is presumed to swear the truth. After reviewing the state court records, however, the District Court concluded that it could not consider claims three and four "in the constitutional framework" because the respondent had not exhausted his state remedies for those grounds. The court nevertheless stated that "in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally." ²

Apparently in an effort to assess the "atmosphere" of the trial, the District Court reviewed the state trial transcript and identified 10 instances of prosecutorial misconduct, only five of which the respondent had raised before the state courts.³

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In addition, although purportedly not ruling on the respondent's fourth ground for relief—that the state trial judge improperly charged that "every witness is presumed to swear the truth"—the court nonetheless held that the jury instruction, coupled with both the restriction of counsel's cross-examination of the victim and the prosecutor's "personal testimony" on the weight of the State's evidence, see n. 3, supra, violated the respondent's right to a fair trial. In conclusion, the District Court stated:

"Also, subject to the question of exhaustion of state remedies, where there is added to the trial atmosphere the comment of the Attorney General that the only story presented to the jury was by the state's witnesses there is such mixture of violations that one cannot be separated from and considered independently of the others.

* * * * *

". . . Under the charge as given, the limitation of cross examination of the victim, and the flagrant prosecutorial misconduct this court is compelled to find that petitioner did not receive a fair trial, his Sixth Amendment rights

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were violated and the jury poisoned by the prosecutorial misconduct." ⁴

In short, the District Court considered several instances of prosecutorial misconduct never challenged in the state trial or appellate courts, or even raised in the respondent's habeas petition.

The Sixth Circuit affirmed the judgment of the District Court, 624 F.2d 1100 (1980), concluding in an unreported order that the court properly found that the respondent's constitutional rights had been "seriously impaired by the improper limitation of his counsel's cross-examination of the prosecutrix and by the prosecutorial misconduct." The court specifically rejected the State's argument that the District Court should have dismissed the petition because it included both exhausted and unexhausted claims.

II

The petitioner urges this Court to apply a "total exhaustion" rule requiring district courts to dismiss every habeas corpus petition that contains both exhausted and unexhausted claims.⁵ The petitioner argues at length that such a

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rule furthers the policy of comity underlying the exhaustion doctrine because it gives the state courts the first opportunity to correct federal constitutional errors and minimizes federal interference and disruption of state judicial proceedings. The petitioner also believes that uniform adherence to a total exhaustion rule reduces the amount of piecemeal habeas litigation.

Under the petitioner's approach, a district court would dismiss a petition containing both exhausted and unexhausted claims, giving the prisoner the choice of returning to state court to litigate his unexhausted claims, or of proceeding with only his exhausted claims in federal court. The petitioner believes that a prisoner would be reluctant to choose the latter route since a district court could, in appropriate circumstances under Habeas Corpus Rule 9(b), dismiss subsequent federal habeas petitions as an abuse of the writ.⁶ In other words, if the prisoner amended the petition to delete the unexhausted claims or immediately refiled in federal court a petition alleging only his exhausted claims, he could lose the opportunity to litigate his presently unexhausted claims in federal court. This argument is addressed in Part III-C of this opinion.

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In order to evaluate the merits of the petitioner's arguments, we turn to the habeas statute, its legislative history, and the policies underlying the exhaustion doctrine.

III A.

The exhaustion doctrine existed long before its codification by Congress in 1948. In Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886), this Court wrote that as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act:

"The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution."

Subsequent cases refined the principle that state remedies must be exhausted except in unusual circumstances. See, e.g., United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17-19, 46 S.Ct. 1, 2-3, 70 L.Ed. 138 (1925) (holding that the lower court should have dismissed the petition because none of the questions had been raised in the state courts. "In the regular and ordinary course of procedure, the power of the highest state court in respect of such questions should first be exhausted"). In Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572 (1944), this Court reiterated that comity was the basis for the exhaustion doctrine: "it is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only 'in rare cases where exceptional circumstances of peculiar urgency are shown to

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exist.' " ⁷ None of these cases, however, specifically applied the exhaustion doctrine to habeas petitions containing both exhausted and unexhausted claims.

In 1948, Congress codified the exhaustion doctrine in 28 U.S.C. § 2254, citing Ex parte Hawk as correctly stating the principle of exhaustion.⁸ Section 2254,⁹ however, does not directly address the problem of mixed petitions. To be sure, the provision states that a remedy is not exhausted if there exists a state procedure to raise "the question presented," but we believe this phrase to be too ambiguous to sustain the conclusion that Congress intended to either permit or prohibit review of mixed petitions. Because the legislative history of § 2254, as well as the pre-1948 cases, contains

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no reference to the problem of mixed petitions,¹⁰ in all likelihood Congress never thought of the problem.¹¹ Consequently, we must...