Petition — Baskerville v. Stamper

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In The

Supreme Court of the United States

October Term 1982

ALTON BASKERVILLE,

Petitioner,

Vv.

CHARLES SYLVESTER STAMPER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

GERALD L. BALILES

Attorney General of Virginia

THOMAS D. BAGWELL*

Assistant Attorney General

101 N. Eighth Street

Richmond, Virginia 23219

(804) 786-0035

*Counsel of Record

QUESTION PRESENTED

Is Exhaustion Of State Remedies Required Under Rose

v. Lundy, 50 U.S.L.W. 4272 (U.S. March 3, 1982) Where

The State Has Waived That Defense?

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ARGUMENT FOR GRANTING CERTIORARI ..........656000055

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TABLE OF CITATIONS

Cases

Page

Barksdale v. Blackburn, 670 F.2d 22 (Sth Cir.),

cert. denied, —— U.S. —— (1982) .....ceccecceecvees 4

Collins v. Auger, 577 F.2d 1107 (8th Cir.), cert. denied,

Gee Soy LISD CIDTS) sciences ctvcdwewnsvdvencavees 4

Fay V. Noia, 372 U.S. 391 (1963) .....cceeesesceeeenveees 3

Galtieri v. Wainwright, 582 F.2d 348 (Sth Cir. 1978) ........ 4

Harding v. State of North Carolina, 683 F.2d 850

CBG Se, TSE) ns sé'c es pon tneechs cen sles oe ccvdenees 5

Hewet v. North Carolina, 415 F.2d 1316 (4th Cir. 1969) ..... 3

Hopkins v. Jarvis, 648 F.2d 981 (Sth Cir. 1981) ........006. 5

Jenkins Vv. Fitzberger, 440 F.2d 1188 (4th Cir. 1971) ........ 5

Picard v. Connor, 404 U.S. 270 (1971) .. ccc cece ceeeeeenes 4

Pitchess v. Davis, 421 U.S. 482 (1975) ..... cc ceeeeeeeeees 4

Robinson v. Wade, 686 F.2d 298 (Sth Cir. 1982) ........... 5

Rose v. Lundy, 50 U.S.L.W. 4272

CUR RERDE Dy NORD: CMe wedi eebe pi evewsecceyoccede 4, 6,7

Van Poyck v. Wainwright, 595 F.2d 1083

CIDA CH TOTO) arc tk ac tbbe ee rcpedvorcveccscccowerde 5

Wilkes v. Israel, 627 F.2d 32 (7th Cir.),

cert. denied, 439 U.S. 1086 (1980) ......cc ccc eceeeeees 5

OTHER AUTHORITIES

Page

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In The

‘Supreme Court of the United States

October Term 1982

No.

ALTON BASKERVILLE,

Petitioner,

Vv.

CHARLES SYLVESTER STAMPER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals from which certio-

rari is sought is an unreported order dated October 4, 1982,

and is included herein as Appendix A. The opinion of the

District Court is reported in 531 F.Supp. 1122 (E.D. Va.

1982).

JURISDICTION

The opinion of the Court of Appeals was handed down

on October 4, 1982. The jurisdiction of this Court to issue

the writ of certiorari in this case is invoked under 28

U.S.C. § 1254(1).

2

STATEMENT OF THE CASE

On November 17, 1979, Charles Sylvester Stamper was

convicted inter alia of three charges of capital murder and

sentenced to death in the electric chair. Stamper appealed

these convictions to the Virginia Supreme Court by way

of direct appeal which was affirmed by written opinion at

220 Va. 260, 267 S.E.2d 808 (1979).

Stamper then filed a petition for a writ of habeas corpus

in the Circuit Court of Henrico County which was denied

by an order dated November 4, 1980. The Virginia Su-

preme Court denied the appeal of this petition by an order

dated November 20, 1981 (Record No. 81-0359).

Thereafter Stamper filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 in the United States

District Court for the Eastern District of Virginia on Janu-

ary 19, 1982. The original petition contained only those

allegations which had been presented to the Virginia courts.

The Court appointed separate counsel to investigate possi-

ble claims of ineffective assistance of counsel, and an

amended petition for a writ of habeas corpus was thereafter

filed, raising allegations of ineffective assistance of counsel.

A motion to dismiss the unexhausted claims was filed by

your Petitioner but was denied by the Court. On February

5, 1982, a plenary hearing was held on the issues of in-

effective assistance of counsel, and on February 12, 1982,

the District Court entered judgment denying the petition

for a writ of habeas corpus on all claims.

Stamper appealed the denial of the petition for a writ of

habeas corpus to the United States Court of Appeals for

the Fourth Circuit, and the Fourth Circuit, on March 4,

1982, ordered briefing and oral argument. Briefs were filed

and the case was set for oral argument on October 6, 1982.

Prior to oral argument, however, the Court of Appeals en-

3

tered an order (App. A), remanding the case to the District

Court for dismissal pursuant to Rose v. Lundy, 50

U.S.L.W. 4272 (U.S. March 3, 1982).

A motion for stay of mandate was filed in the Court of

Appeals which was denied by an order dated October 15,

1982 (App. B).

On October 25, 1982, your Petitioner filed a formal

waiver of exhaustion in the District Court (App. C), and

a motion for stay pending this petition for certiorari (App.

D).

ARGUMENT FOR GRANTING CERTIORARI

When the original petition for a writ of habeas corpus

was filed, the Petitioner had exhausted his state court reme-

dies. The District Court sought to avoid piecemeal litigation

by appointing additional counsel to investigate possible

claims of ineffectiveness of counsel. When said claims were

presented in an amended petition, the Court proceeded to

decide the entire case over your Petitioner’s objection for

failure to exhaust state remedies.’

After the plenary hearing, the state determined that the

District Court had fully and fairly decided the issues and

no longer pursued the defense of exhaustion when the Pcti-

tioner below appealed to the Fourth Circuit. Indeed, the

state argued on brief in the Fourth Circuit that it had

waived exhaustion of state court remedies. There was no

cross appeal by the state or assignment of error that the

District Court erred in failing to dismiss for non-exhaustion.

The exhaustion doctrine is based on comity, not juris-

diction. Fay v. Noia, 372 U.S. 391, 420 (1963). It exists

1 Until Rose v. Lundy was decided, the rule in the Fourth Circuit

was that only unexhausted claims would be dismissed. Hewet v.

North Carolina, 415 F.2d 1316, 1320 (4th Cir. 1969).

4

to avoid unnecessary conflicts between the state and fed-

eral court, and to avoid unnecessary litigation. See, gener-

ally, Galtieri v. Wainwright, 582 F.2d 348 (Sth Cir.

1978). Where the state has persisted in advancing its claim

that a petitioner has failed to exhaust his state court reme-

dies, and where a federal court has granted a petitioner

relief without exhaustion of state court remedies, this Court

has required exhaustion of state court remedies. Pitchess v.

Davis, 421 U.S. 482 (1975); and Picard v. Connor, 404

U.S. 270 (1971).

In Rose v. Lundy, this Court reviewed the principles be-

hind the exhaustion requirement. The exhaustion doctrine

exists to allow the state to have the first opportunity to

correct federal constitutional error and minimize federal

interference and disruption of state court judgments. The

exhaustion requirement serves to reduce piecemeal litiga-

tion. In Rose, this Court said:

The exhaustion doctrine is principally designed to

protect the state court’s role in the enforcement of

federal law and prevent disruption of state judicial

proceedings.

50 U.S.L.W. at 4275.

The policy reasons for requiring exhaustion are not ap-

plicable in this case. Your Petitioner believes that the Court

of Appeals erred when it failed to consider the state’s

waiver of exhaustion.’ Exhaustion of state court remedies

may be waived. See Barksdale v. Blackburn, 670 F.2d 22,

24 (Sth Cir.), cert. denied, —— USS. (1982);

Collins v. Auger, 577 F.2d 1107 (8th Cir.), cert. denied,

* Petitioner points to the fact that the District Court conducted a

full pl hearing, and the Court of Appeals ordered bri and

argument. These ex should have been considered by the

of Appeals in its failure to accept the waiver crgument.

5

439 U.S. 1133 (1978); Harding v. State of North Caro-

lina, 683 F.2d 850 (4th Cir. 1982); Jenkins v. Fitzberger,

440 F.2d 1188, 1189 (4th Cir. 1971); and Van Poyck

v. Wainwright, 595 F.2d 1083 (5th Cir. 1979).

The Fourth Circuit erred when it remanded this case to

the District Court when your Petitioner did not request it.

The state’s waiver of exhaustion should have ended this

issue. In Robinson v. Wade, 686 F.2d 298, 303, n. 8 (5th

Cir. 1982), the Court saic:

Waiver of exhaustion, implied by this Court from

the simple failure vigorously to assert the state reme-

dies remain untried, . . . is certainly accepted when

explicitly made. (Citations omitted).

Indeed, in Hopkins v. Jarvis, 648 F.2d 981, 983, n. 2

(5th Cir. 1981), the Court found a waiver of state remedies

where the state had pled lack of exhaustion at the magis-

trate level, and failed to reassert exhaustion at the district

court level:

In this case, appellee did raise lack of exhaustion in

its answer to the habeas petition; once the magistrate

found that appellant had exhausted state remedies,

appellee did not raise exhaustion before the district

court in its review of the magistrate’s report and recom-

mendation. Moreover, appellee has not mentioned ex-

haustion in his brief or argument before this court.

We conclude, therefore, that appellee has waived the

defense of lack of exhaustion.

Similarly, your Petitioner contends that its failure to raise

the defense of exhaustion in the Court of Appeals amounted

to a waiver of that remedy. Cf. Wilkes v. Israel, 627 F.2d

32, 38, n. 10 (7th Cir.), cert. denied, 449 U.S. 1086

(1980).

The reasons underpinning the Rose v. Lundy decision

are not present in this case. Not only has the state been

required to participate in a plenary hearing, but also it has

been required to brief the issues in the Court of Appeals.

The state should have the right to abandon its initial claim

of exhaustion if it so desires. Indeed, in this case the state

filed an explicit waiver of exhaustion in the District Court

after it was remanded by the Court of Appeals.’

Exhaustion of state remedies inures to the benefit of the

state; the state should be able to waive it. In a case where

the state is willing to give up the right to have state remedies

exhausted and does not insist on exhaustion of state reme-

dies, exhaustion should not be required. Because none of

the reasons which have traditionally required exhaustion of

state remedies are present in this case, this Court should

consider the state’s waiver of exhaustion and look to ju-

dicial economy and require the Court of Appeals to decide

this appeal. In the posture of this case, the decision of the

Court of Appeals amounts to a waste of judicial economy.

* This waiver has not yet been acted upon by the District Court.

7

CONCLUSION

The requirement of exhaustion of state court remedies is

a benefit which inures to the state, and the Court of Appeals

erred when it summarily remanded this case to the District

Court for dismissal in light of Rose vy. Lundy. Your Peti-

tioner did not assert exhaustion of state court remedies in

the Fourth Circuit and argued that it had waived state

court remedies in that Court. In the interests of judicial

economy, this Court should grant certiorari and reverse the

judgment of the Court of Appeals.

Respectfully submitted,

GERALD L. BALILES

Attorney General of Virginia

THOMAS D. BAGWELL

Assistant Attorney General

Supreme Court Building

6th Floor

101 North Eighth Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, Thomas D. Bagwell, Assistant Attorney General of

Virginia, Counsel for Petitioner, and a member of the Bar

of the Supreme Court of the United States, do hereby cer-

tify that on the ... day of December, I mailed a copy

of the foregoing Petition for Writ of Certiorari to Gary J.

Spahn, Esquire, MAYs, VALENTINE, DAVENPORT & Moore,

P. O. Box 1122, Richmond, Virginia 23208, Counsel for

Respondent.

THOMAS D. BAGWELL

Assistant Attorney General