# Rose v. Lundy

> Supreme Court of the United States · March 8, 1982 · 455 U.S. 509

URL: https://www.frixlaw.com/law-library/cases/9428693

## 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 White
- **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/9428693

## 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 White,
concurring in part and dissenting in part.
I agree with most of Justice Brennan’s opinion; but like Justice Blackmun, I. would not require a “mixed” petition to be dismissed in its entirety, with leave'to resubmit the exhausted claims. The trial judge cannot rule on the unex-hausted issues and should dismiss them. . But. he should rule on the exhausted claims unless they are intertwined with those he must dismiss or unless the habeas petitioner prefers to have his entire petition dismissed. In any event, if the judge' rules on those issues that are ripe and dismisses those that are not, .1 would not tax the petitioner with abuse of the writ if he returns with the latter claims after seeking state relief.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428693. Public record. Not legal advice.