noting, in a pre-AED-PA case, that exhaustion is not required where “the state procedures do not afford swift vindication” or “state procedural snarls or obstacles preclude an effective state remedy”
How later courts described this case
- noting, in a pre-AED-PA case, that exhaustion is not required where “the state procedures do not afford swift vindication” or “state procedural snarls or obstacles preclude an effective state remedy”
- without exhaustion "state court system would be isolated from federal constitutional issues and would not have an impetus to develop and apply federal constitutional law"
- exhaustion requirement serves policies of "comity, avoidance of piecemeal litigation, economy of judicial energy, and the fullest consideration of a petitioner's claims" and furthers "goal [of having] a petitioner travel through each system [state and federal] only once, at most, in his quest for vindication of alleged constitutional errors"
- requiring exhaustion of all claims raised in habeas petitions in Fifth Circuit
Written by the judges who cited it.
The opinion
HILL, Circuit Judge,
SPECIALLY CONCURRING.
*365 I concur in the result announced for the majority together with the opinion authored by Judge Tjoflat. Inasmuch as the entire case was taken en bane, I find no fault in the majority’s having decided, en banc, the ultimate issue and holding that the exhausted ground in the petition for the writ of habeas corpus was without merit and, therefore, reversing the grant of the writ by the district judge.
Judge Roney has authored what he entitles a dissenting opinion. Except for Judge Roney’s conclusion that the ultimate issue should have been referred back to the panel and not decided by the en banc court, it does not appear to me that, operationally, there are any real differences between the opinions of Judges Tjoflat and Roney. Indeed, a dissent from a reversal is usually a vote for affirmance. Judge Roney does not indicate in any way that he would vote to affirm the district court in this case.
Dispute between the two opinions seems to center around choice of words and legal consequences which might flow from the language used by Judge Tjoflat for the majority. In that majority opinion the court announces what is said to be a rule hereafter applicable to the handling of mixed (exhausted grounds and nonexhausted grounds) petitions for the writ of habeas corpus. In jurisprudence, rules are said to be “precepts attaching a definite detailed legal consequence to a definite, detailed state of facts. If one likes, they are definite threats of definite, detailed official actions in case of a definite, detailed state of facts.” Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 Tulane L.Rev. 475, 482 (1933). If, therefore the majority were today announcing a rule in the legal sense, the failure of our district brethren to follow that rule and dismiss, without prejudice, every petition for habeas corpus which contained a ground or grounds not yet presented for state relief would result in reversal upon appeal to this Court.
It is clear to me, however, that the majority does not promulgate a rule as we know it in law. It cannot be such a rule because the majority opinion proceeds immediately from its articulation to state the consequences of a violation; the consequences are not reversal but review on the merits of the district judge’s resolution of the issue presented by the exhausted ground which he accepted and resolved in what would be defiance of the rule. I interpret the opinion for our Court as announcing a rule in the more colloquial use of that word; “as a general rule” mixed petitions should be dismissed without prejudice.
If Judge Tjoflat’s words are so interpreted, Judge Roney’s opinion says the same thing. In that opinion the generally expected dismissal of mixed petitions is so firmly anticipated that it would be announced that this court would never reverse a district judge for having dismissed one. So in the views of both my distinguished brothers, it is to be anticipated that, where a petition for habeas corpus relief is grounded in part upon a contention not theretofore presented to the state courts for relief, the entire petition will be dismissed without prejudice to its refiling after exhaustion of state remedies.
Yet, both authors contemplate that occasions will arise when a district judge will find in a mixed petition an exhausted ground which ought to be addressed without the delay that would be occasioned by deferring the matter until other grounds had been taken through the state system. That is as it should be. We are dealing here with the writ of habeas corpus which, as Judge Goldberg so eloquently sets out, is still entitled to be called The Great Writ. The orderly procedure sought by the majority opinion and by the opinion of Judge Roney is demanded because applications for The Great Writ have become so inappropriately routine and commonplace in criminal litigation today that some might understandably refer to it as the “Great(ly Abused) Writ.” The needs of society for some semblance of finality in the administration of criminal justice are thwarted by the piecemeal presentation of endless applications for the writ of habeas corpus, first on one supposed ground and then on another, with federal courts addressing bits and *366 pieces of the petitioner’s application theretofore presented to the state system while the state courts address other particles as a preview to their filing in the federal courts. Orderly procedure would be served by the mandate of a genuine rule forbidding that practice and requiring that no application for the writ be presented to the federal court until state relief on all grounds had been sought. As I see it, however, the reason that both the majority and Judge Roney recoil from such an absolute mandate is found in the nature of the relief sought in the writ. A proper petition is predicated upon the contention that a citizen of this free country is being held in prison, deprived of his liberty, when, under the law, there is no right in his custodian to hold him. We know that, in the haystack of petitions filed as a matter of course on so many occasions, from time to time to appears that a needle is found. When a district judge (or, indeed, a judge of the Court of Appeals) 1 senses the presence of a genuine assertion upon proof of which it will be demonstrated that a petitioner is deprived of liberty contrary to the laws of this country, such a judge must be free to reach through any underbrush of unexhausted grounds, faulty procedures, etc., and treat that contention.
The majority and Judge Roney anticipate, correctly I believe, that the administration of justice can rely upon district judges to accept and determine that sort of an exhausted ground in a mixed petition only when fundamental rights to freedom would be in jeopardy absent a prompt resolution. This confidence is expressed in the majority opinion by assuring the district judges that this court will review, on the merits, the resolution of the district judge of such an issue and will not reverse his having failed to dismiss the mixed petition.
My only discomfort with the majority opinion is that, in its choice of words, it has announced what appears to be a legal rule applicable to the district judges of this Circuit and yet anticipates that the district judge will not abide a rule of this court and provides for appellate review of its violation. Interpreted as above, I do not believe that the district judges will be in violation of a rule of this court or in defiance of the supervisory powers of this Court upon those occasions when they sense the presence of a needle in the haystack and elect to probe further for it. Therefore, with these observations, I can and do concur in the opinion authored by Judge Tjoflat for the court.
. 28 U.S.C. § 2241 .