# Rose v. Lundy > Supreme Court of the United States · March 8, 1982 · 455 U.S. 509 URL: https://www.frixlaw.com/law-library/cases/9428692 ## Case - **Full name:** Rose, Warden v. Lundy - **Court:** Supreme Court of the United States - **Decided:** March 8, 1982 - **Citations:** 455 U.S. 509; 102 S. Ct. 1198; 71 L. Ed. 2d 379; 1982 U.S. LEXIS 79 - **Precedential status:** Published - **Opinion:** Concurring in part by Brennan - **Judges:** O'Connor, Court'S, Burger, Brennan, Marshall, Powell, Rehnquist, Iii-C, Blackmun, White, Stevens - **Cited by:** 5,664 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported overruled in part, on other grounds by Martinez v. Ryan, 132 S. Ct. 1309 (2012) — not on the Supreme Court's list. - Negative treatments: 3 - Distinguished by: 2 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9428692 ## How later opinions describe it (automated extraction) - finding that “ ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,’ ” and that “[a] rigorously enforced total exhaustion rule wil… - holding that when a petition contains both exhausted and unexhausted issues the petition must be dismissed, "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 clai… - holding that a 21 district court must petitions containing unexhausted claims, “leaving the prisoner with the 22 choice of returning to state court to exhaust his claims or of amending or resubmitting the 23 habeas petition to present only exhausted claims to the district court.” - stating 28 the doctrine of comity provides that “one court should defer action on causes properly 1 within its jurisdiction until the courts of another sovereignty with concurrent powers, and 2 already cognizant of the litigation, have had an opportunity to pass upon the matter” ## Opinion text Justice Brennan, with whom Justice Marshall joins, concurring in part and dissenting in part. I join the opinion of the. Court (Parts I, II, III-A, III — B, and IV, ante), but I do not join in the opinion of the plurality (Part III — C, ante). I agree with the Court’s holding that the exhaustion requirement of 28 U. S. C. §§ 2254 (b), (c) obliges a federal district court to dismiss, without consideration on the merits, a habeas corpus petition from a state prisoner when that petition contains claims that have not been exhausted in the state courts, “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.” Ante, at 510. But I disagree with the plurality’s view, in Part III — C, that a ha-beas petitioner must “risk forfeiting consideration of his un-exhausted claims in federal court” if he “decides to proceed only with his exhausted claims and deliberately sets aside his *533 unexhausted claims” in the face of the district court’s refusal to consider his “mixed” petition. Ante, at 520, 521. The issue of Rule 9(b)’s proper application to successive petitions brought as the result of our decision today is not before us — it was not among the questions presented by petitioner, nor was it briefed and argued by the parties. Therefore, the issue should not be addressed until we have a case presenting it. In any event, I disagree with the plurality’s proposed disposition of the issue. In my view, Rule 9(b) cannot be read to permit dismissal of a subsequent petition under the circumstances described in the plurality’s opinion. I The plurality recognizes, as it must, that in enacting Rule 9(b) Congress explicitly adopted the “abuse of the writ” standard announced in Sanders v. United States, 373 U. S. 1 (1963). Ante, at 521. The legislative history of Rule 9(b) illustrates the meaning of that standard. As transmitted by this Court to Congress, Rule 9(b) read as follows: “Successive Petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition is not excusable.” H. R. Rep. No. 94-1471, p. 8 (1976) (emphasis added). The interpretive gloss placed upon proposed Rule 9(b) by this Court’s Advisory Committee on the- Rules Governing § 2254 Cases in the United States District Courts was that: “With reference to a successive application asserting a new ground or one not previously decided on the merits, the court in Sanders noted: [‘]In either case, full consideration of the merits of the new application can be avoided only if there has *534 been an abuse of the writ * * * and this the Government has the burden of pleading. * * * □Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, * * * he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. [’] “373 U. S., at 17-18. . “Subdivision (b) [of Rule 9] has incorporated this principle and requires that the judge find petitioner’s failure to have asserted the new grounds in the prior petition to be inexcusable.” Advisory Committee Note to Rule 9(b), 28 U. S. C., p. 273 (emphasis added). But Congress did not believe that this Court’s transmitted language, and the Advisory Committee Note explaining it, went far enough in protecting a state prisoner’s right to gain habeas relief. In its Report on proposed Rule 9(b), the House Judiciary Committee stated that, in its view, “the ‘not excusable’ language [of the proposed Rule] created a new and undefined standard that gave a judge too broad a discretion to dismiss a second or successive petition.” H. R. Rep. No. 94-1471, supra, at 5 (emphasis added). The Judiciary Committee thus recommended that the words, “is not excusable,” be replaced by the words, “constituted an abuse of the writ.” Id., at 5, 8. This change, the Committee believed, would bring Rule 9(b) “into conformity with existing law.” Id., at 5. It was in the Judiciary Committee’s revised form — employing the “abusive” standard for dismissal — that Rule 9(b) became law. II It is plain that a proper construction of Rule 9(b) must be consistent with its legislative history. This necessarily entails an accurate interpretation of the Sanders standard, on which the Rule is based. It also requires consideration of *535 the explanatory language of the Advisory Committee, and Congress’ subsequent strengthening amendment to the text of the Rule. But the plurality, entirely misreading Sanders , embraces an interpretation of the Rule 9(b) standard that is manifestly incorrect, and patently inconsistent with the Advisory Committee’s exposition and Congress’ expressed expectations. The relevant language from Sanders , quoted by the plurality, ante, at 521, is as follows: “[I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.” 373 U. S., at 18 . From this language the plurality concludes: “Thus a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions.” Ante, at 521. The plurality’s conclusion simply distorts the meaning of the quoted language. Sanders was plainly concerned with “a prisoner deliberately withholding] one of two grounds” for relief “in the hope of being granted two hearings rather than one or for some other such reason.” Sanders also notes that waiver might be inferred where “the prisoner deliberately abandons one of his grounds at the first hearing.” Finally, Sanders states that dismissal is appropriate either when the court is faced with “needless piecemeal litigation” or with *536 “collateral proceedings whose only 'purpose is to vex, harass, or delay.” Thus Sanders made it crystal clear that dismissal for “abuse of the writ” is only appropriate when a prisoner was free to include all of his claims in his first petition, but knowingly and deliberately chose not to do so in order to get more than “one bite at the apple.” The plurality’s interpretation obviously would allow dismissal in a much broader class of cases than Sanders permits. This Court is free, of course, to overrule Sanders . But even that course would not support the plurality’s conclusion. For Congress incorporated the “judge-made” Sanders principle into positive law when it enacted Rule 9(b). That principle, as explained by the Advisory Committee’s Note, at least “requires that the [habeas] judge find petitioner’s failure to have asserted the new grounds in the prior petition to be inexcusable.” Indeed, Congress went beyond the Advisory Committee’s language, believing that the “inexcusable” standard made the dismissal of successive petitions too easy. Congress instead required the habeas court to find a successive petitioner’s behavior “abusive” before the drastic remedy of dismissal could be employed. That is how Congress understood the Sanders principle, and the plurality is simply not free to ignore that understanding, because it is now embedded in the statutory language of Rule 9(b). HH ► — I The plurality’s attempt to apply its interpretation of Sanders only reinforces my conclusion that the plurality has misread that case. The plurality hypothesizes a prisoner who presents a “mixed” habeas petition that is dismissed without any examination of its claims on the merits, and who, after his exhausted claims are rejected, presents a second petition containing the previously unexhausted claims. The plurality then equates the position of such a prisoner with that of the “abusive” habeas petitioner discussed in the Sanders passage. But in my view, the position of the plurality’s hypo *537 thetical prisoner is obviously very different. If the habeas court refuses to entertain a “mixed” petition — as it must under the plurality’s view — then the prisoner’s “abandonment” of his unexhausted claims cannot in any meaningful sense be termed “deliberate,” as that term was used in Sanders . There can be no “abandonment” when the prisoner is not permitted to proceed with his unexhausted claims. If he is to gain “speedy federal relief on his claims” — to which he is entitled, as the Court recognizes with its citation to Braden, ante, at 520 — then the prisoner must proceed only with his exhausted claims. Thus the prisoner in such a case cannot be said to possess a “purpose to vex, harass, or delay,” nor any “hope of being granted two hearings rather than one.” Moreover, the plurality’s suggested treatment of its hypothetical prisoner flatly contradicts the Rule 9(b) standard as explained by the Advisory Committee, and a fortiori contradicts that standard as strengthened and extended by Congress. After the prisoner’s first, “mixed” petition has been mandatorily dismissed without any scrutiny, after his exhausted claims have been rejected, and after he has then presented his previously unexhausted claims in a second petition, there is simply no way in which a habeas court could “find petitioner’s failure to have asserted the new grounds in the prior petition to be inexcusable.” On the contrary, petitioner’s failure to have asserted the “new,” previously unex-hausted claims in the prior petition could only be found to have been required by the habeas court itself, as a condition for its consideration of the exhausted claims. If the plurality’s interpretation of Rule 9(b) cannot satisfy the Advisory Committee’s “inexcusable” standard, then it falls even further short of the higher, “abusive” standard eventually adopted by Congress. IV I conclude that when a prisoner’s original, “mixed” habeas petition is dismissed without any examination of its claims on the merits, and when the prisoner later brings a second peti *538 tion based on the previously unexhausted claims that had earlier been refused a hearing, then the remedy of dismissal for “abuse of the writ” cannot be employed against that second petition, absent unusual factual circumstances truly suggesting abuse. This conclusion is to my mind inescapably compelled not only by Sanders , but also by the Advisory Committee explanation of the Rule, and by Congress’ subsequent incorporation of the higher, “abusive” standard into the Rule. The plurality’s conclusion, in contrast, has no support whatever from any of these sources. Nor, of course, does it have the support of a majority of the Court. * Justice WHITE rejects the plurality’s conclusion in Part III-C, ante, see post, this page, as does Justice Blackmun, see ante, at 529. Justice Stevens does not reach this issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428692. Public record. Not legal advice.