Petition — Wainwright v. Thompson

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83-149)

‘NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

LOUIE L. WAINWRIGHT, Secretary

Florida Department of Corrections,

Petitioner,

vs.

WILLIAM LEE THOMPSON,

Respondent.

On Petition for a Writ of Certiorari

to—the—_Districe—Court—_of Appeal

U.S. r * — Crew

BRIEF OF PETITIONER ON JURISDICTION

JIM SMITH

Attorney General

Tallahassee, Florida

CALVIN L. FOX, Esquire

Assistant Attorney General

401 N. W. 2nd Avenue (Suite 820)

Miami, Florida 33128

(305) 377-5441

* A 7 Sitar

A i

* 1) WHETHER A FEDERAL COURT MUST 4

55 ACCEPT THE STATE'S EXPLICIT WAIVER ey

| OF THE EXHAUSTION OF STATE REMEDIES a

; REQUIREMENT?

. 2) WHETHER A FEDERAL COURT CAN PRO-

a PERLY ORDER A CONTINUANCE IN ORDER

** TO PERMIT THE DEFENDANT TO RAISE

5 UNEXHAUSTED CLAIMS IN STATE COURT?

K. 3) WHETHER THE DEFENDANT'S UNEX-

x HAUSTED CLAIMS SHOULD BE REJECTED

a AS WAIVED BY DEFENSE COUNSEL'S

* DELIBERATE TACTICAL CHOICE?

QUESTIONS PRESENTED. ....-cesececs

3 TABLE OF OF CITATIONS. ....csecess iii

= r Cowes 0 bos edges cebee 1

* OPINIONS BRIG . ccc ccccsocsccecece 2

FURTSRIGEIONS «6 cotowccecscesteses 3

= CONSTITUTIONAL AND STATUTORY

. cde cecncssccctasee 4-5

STATEMENT OF THE cas g ..

SUMMARY OF ARGUMENT......csseee0s

rh h

* < >

* * „

1 * ” ’

r ; 2 8 0 .

Moo : wae ges

oe > 1 : *

Eo TABLE OF CITATIONS

3 ts x

2 ag

* UNITED TES CASES

= Barefoot v. Estelle,

9.8. , 103 "s. Ct. 3383

(1983)... ) ow bbebesbdus cedweccaes 25

3 Duckworth v. Cowell

* 455 U.S. 996 (1982)......... 21

55 McKaskle v. Vela

3 U.S. 34 Crim.L.Rep.

4 144 . 24

Rodr

853 6.8. 57 997 N 21

Rose v. Lundy, ‘oa

455 U.S, 509 (1562)... ... . 1 19 1

Rose v. Lundy 2

u. 8. , 102 S.Ct. 1198 afi

Sanders v. ‘United States,

373 U.S. 1, 83 $.Ct. 1068, re

1 L. Ed. 2d 148 h..., 26.

Southern » Pacific Terminal Co. Dee

* N 1 2 N 4 tie 3 5

8 ö. s. 3 a

We:

‘ ye 2

3 1 *

UNITED STATES CASES

Strickland v. Washington,

„ Case No.

82-15

ates ht v. Thompson,

Sup. Ct. Case No. A335... 10

SOV eeseeeeeeeseeseesee 12

es,

UNITED STATES CONSTITUTION

Amendments VIV. 3,

. Amendments K aue'ss 3;

UNITED STATES CODE AND STATUTES

Title 28, U.S.C. $1257(3)........ 3

a Title 28, U.S.C. $2254(b)........ 3,

Title 28, U.S.C. §2254(c)........ 3,

OTHER AUTHORITY

Anderson v. “Se ¥

469 F.2d: 41056 (sch Cir. 5

: 197 R 0 23

l ‘ teas (8.D, ria.

eee, ö

9 ae

OTHER AUTHORITY

Batchlor v.

693 F.2d 1 (9th Cir.

r een

Blackwell v. Wolff,

454 F.2d 48 (8th Cir.

Lt) SS Fee Fee er re

Bowen v. Tennessee,

698 F.2d 241 (6th Cir.

Clarke v. Henderson,

465 F.2d 888 (5th Cir.

Dicarelli v. Gray,

543 F.2d 468 (3d Cir. 1976).

Engle v. Isaac,

U. 8. , 102 S.Ct. 1558

T1982)... SS APY a oe Se

Dixon v. Beto,

472 F.2d 598 (5th Cir.

197 eeeeveeeeeen eee eeeeeeeeee

Felder v. Estelle,

693 F.2d 549° (5th Cir.

(1982 rr

Galtieri v. wright,

582 F.2d 388 (ath Cir.

5——-ũõͤã!— „„

cae

4 inn ee ae ye a F ll

Pe =

45 * *

= OLS, a 2

WT ke Sa Oat

3 OTHER AUTHORITY PAGE 8

. CONTINUED = — 7 1

4 1

5 8 ‘

1 Jenkins v. Fitzberger, ;

Re 440 F.2d 1188 (4th Cir. A

* Li 19 1

ne 1

a Jordan v. Procunier, 3

x F.Supp. (E. b. Va. 1983, ee

£9 J Crin. LvRep. 9093) vo sie cee 28 of

Knight v. State,

426 So.2d 533 (Fla. 1983) 3

2 ' 199 r 26 5

Knight v. State,

394 So.2d 997 (Fla. 1981)... 28

Knight v. Wainwright,

U. 3 D. C. Case No. 81-391-

4 Civ-JE, opinion filed March

te CCC 26

. 29

. Messelt v. Alabama,

15 595 F.2d 247 (5th Cir.

ae elne 20

3 Naranjo v. Ricketts,

ae 96 F.2d 83 (10th Cir.

1982 .. 21

Needel v. Scafati

412 F.2d 760 (ict Cir.

M979) Puin 4

a °

vii

OTHER AUTHORITY

CONTINUED =—SO

Surace v. State,

378 So.2d 895 (Fla. 3d DCA

WOOO) dake eds 6cksncscecases eve 6

Surace v. State,

351 80. 2d 702 (Fla. 1977)... 6

v. State,

389 So.2d 197 (Fla. 1980)... 6

son v. State,

351 So.2d 701 (Fla. 1977)... 6

v. State

410 80. 2d 500 (Fla. 1982)... 7

son v. Wainwright,

714 F.2d 1495 (11th Cir.

r obs vos teeves =. 8

Tolg v. Grimes

355 F.2d 92 (Sth Cir. 1966). 18

United States ex rel. Sostre

v. Festa,

513 F.2d 1313 (2d Cir. 1975). 21

“United States ex rel Trantino v.

Hatrick

562 v. 2d 86 (3d Cir. 1977)..

West v. Louisiana,

478 F.2d 1026 4 Cir.

1973) 4 4 44 ½ „ 4 4 4 4 4 0 „ *

Rule 3.950, uu cen...

et PN

[oe ee 8

Ss * 1

The Petitioner, Louie L. Wainwright,

Secretary, Florida Department of Correc-

tions was the Respondent in the United

States District Court and the Appellant

upon the interlocutory appeal under Rule

5 of the Federal Rules of Appellate Pro-

cedure to the United States Eleventh

Circuit Court of Appeals. The Respon-

dent, William Lee Thompson was the Peti-

tioner in the United States District

Court and the Appellee in the Eleventh

Circuit. In this brief the parties will

be referred to as the State and the

Defendant respectively.

The following reference is made in

this brief:

(A) For the portions of the record

below sufficient to show Jurisdiction in

chia: Court, which aoe 1 895

pages aus.

OPINIONS BELOW 3

The opinion of the United States

_ District Court for the Southern District

2 of Florida filed on June 7, 1982 is

contained in the State's Appendix at Ai-

A9. This opinion is unreported.

ei.

The opinion of the United states

Court of Appeals for the Eleventh Cireuit

is reported at Thompson v. Wainwright, — oe

714 F.2d 1495 (11th Cir, 1983) and ie

contained in the State's Appendix at A-

467.

The second opinion of the United

The jurisdiction of this Court is

invoked under the provisions of Title 28,

United States Code, $1257 (3) and 52254

(b and e) and Amendments VI and XIV of

the United States Constitution.

: 111

1 CONSTITUTIONAL STATUTORY

* Amendment VI of the Constitution of 2

4 the United States provides that: 1

5 "In all criminal prosecutions, the

accused shall enjoy the 8 to a

speedy and public trial, by an

impartial jury of the State and

district — Fi the crime shall

have been committed, which district

shall have been previously ascer-

a ae 7 *

— mht * SNe *

S ee

7 tained by law, and to be informed

. of the nature and cause of the 2

5 accusation; to be confronted with ‘ 3

2 the witnesses ageinet | * to have *

compulsory process tain ‘

. Abe his favor, and to € l

the assistance of cownsel for his 19

% defense." a

: oer

85 Amendment XIV of the Constitutiln i E.

the United States provides inter alia, “a

that:

or immunities of citizens of the

United States; nor shall any state

deprive any person of life, liber-

ty, or property, without due pro-

cess of law; nor deny to any person

within ite jurisdiction the equal

protection of the law.”

Title 28 U.S.C. $2254(b) and (c)

provides that:

(b) An application for a writ of

— pecuaaah OF tae’ Julguane

cus pursuant to t

of a State court shall not te

granted unless it appears that the

applicant has exhausted the reme-

dies available in the courts of the

State, or that there is either an

absence of available State correc-

tive process or the existence of

circumstances rendering such pro-

cess ineffective to protect

rights of the prisoner.

deemed to have exhausted the

dies available in the courts of che

gaint Sate

x N W

„ : 3

— * ,

8 ayy

N N

hs mer

U 7

ove

% hy

After a plea of guilty, the Defen-

dant, William Lee Thompson was convicted

and sentenced to death for the brutal

slaying of the victim, Sally Ivester.

The Defendant's sentence and conviction

were affirmed by the Florida Supreme

Court on November 6, 1980. See, Thompson

v. State, 389 80. 2d 197 (Fla. 1980); see,

also, Thompson v. State, 351 80. 2d 701

(Fla. 1977).

The Defendant subsequently testi-

fied at the trial of his co-defendant

Rocco James Surace, and took the entire

‘blane for the rates upon himself. —

c e 1980); see, also, ‘eras .

5 3 sie inna Fakes 5

On August 5, 1981 the Defendant *

filed a Motion for Collateral Relief :

under Rule 3.950, Fla.R.Crim.P., asking

that his sentence be reduced because the

co-defendant Surace was convicted of

second degree murder after a jury trial.

The Florida trial court summarily denied

the Defendant's application on August 6,

1981. On February 11, 1982, the Florida

Supreme Court, affirmed the summary denial

of the Defendant's Rule 3.850 Motion. |

See, Thompson x. State, 410 So.2d 500

(Fla. 1982).

The Defendant was subsequently sche-

dul ed to be put to death by execution on

March 2, 1982, at 7:00 a.m. The Defendant

filed a petition for writ of habeas cor-

pus in the United States District Court

for the Southern District of Florida six

days before his scheduled execution. .

¥ =

a, R £3 3

Thompson v. Wainwright, 714 F.2d 1495

(11th Cir. 1983). @10-A67.) In his

petition for writ of habeas corpus, the

Defendant had raised certain claims, for

which the Defendant had exhausted his

State remedies. Al3. However, the Defer-

dant also sought a stay of execution and

filed a motion for a continuance in order

to return to state court to raise claims

for which he had not exhausted his State

remedies. A13-A14. The State opposed the

Defendant's motion for a continuance upon

the grounds that the Defendant had, by a |

tactical choice deliberately forfeited

his right to litigate the present claims

by ignoring the State forum. A2;A14-A15.

Additionally, the undersigned as repre-

sentative of the Attorney General and the

State of Florida asserted an express

waiver of any requirement of exhaustion

of State remedies and urged the District

Court below to proceed. 413.

™~

The United ere District Court for

the Southern District of Florida held

that the exhaustion requirement could not

be waived; granted the Defendant's motion

for a continuance and motion for a stay

and ordered that the parties should

return to State Court in order to permit

the Defendant to exhaust his state court

remedies. Al6.

Upon review, on September 6, 1983,

the Eleventh Circuit held; (1) that the

Attorney General of Florida could proper-

ly and fully waive an exhaustion require-

ment on behalf of the State of Florida;

(2) that the federal trial court could

however in its discretion accept or

reject such a waiver based upon the

nature of the case and such factors as

the condition of the federal and state

trial court dockets and (3) that the

federal trial court could grant a con-

tinuance upon what was substantially a

mixed petition, despite the mandate of 2

Rose v. Lundy, 455 U.S. 309 (1982), a 1

order to accomplish the foregoing. Al8-

A66. On October 12, 1983, the Court ae

denied the State's petition for rehearing

and petition for rehearing en banc. 468

On October 19, 1983, the Court also

denied the State's motion for a stay

pending review in this Honorable Court. ,

A70. a

On November 8, 1983, Justice Powell

declined the State's request for a stay a

of the Eleventh Circuit mandate. Seé

* Wainwright v. Thompson, U. s. sup. ct. Case 1

No. A335. on hovenber 28, the court ea

declined the State's request to stay the % ie

Eleventh eee mandate, Id. |

Pursuant to the present decision of

the Eleventh Circuit, on December 8, 1983

the District Court requested and received

written statements from the parties con-

cerning the following matters:

"1. The nature and extent of the

fact finding required for proper

resolution of the petitioner's m-

exhausted ‘claims;

"2. The amount of delay already

incurred in this case and reason- .

ably foreseeable if the continuance

is granted. This consideration in-

volves inquiry into how long it has

been since the petitioner's convic-

tion and sentence were sed, how

long state exhaustion wi require

and the c ative status of the

dockets of federal and state trial

court's and; =~ = .

9 igvolved; specific chs. * le 1

invo cally, |

4 8 n

K. stake in the case or

threshhold issues of e 0

state law."

* .

See, A77-A89. On February 10, 1984, in

an extensive written order the “a, Se

N Court accepted — erer

N gota 8

"ei 1

exhaustion of state remedies and denied

the Defendant's Motion for a Continuance.

Id, The Court thereupon set the matter

for an evidentiary hearing and specifi-

cally rejected the State's argument that

important state/federal issues were in-

plicated by the instant petition in this

Court and the State’s argument that any

proceeding would be ill-advised prior to

a decision in Strickland v. Washington,

v. s. Sup. ct. Case No. 82-1554, Oral Argu-

nent January 10, 1984, because of the

conflict between the Eleventh Circuit and

the Florida Supreme Court therein. Id.,

at n.2;n.3. At the time of this writing

said order of the District Court 16

doth parties.

. a

\ * 15 j ii ö

. . W 2 11

1 5 * ‘ 7 4 oN >

„ Pa oe

1 * ie “>

''s7 > I 1 ~ ve * * 1

1 V 8 1

This Court has jurisdiction because,

the present cause presentes an actual a

substantial case or controversy between

adverse interests. The underlying con-

troversy will recur and is continuing.

Furthermore, the controversy is of criti-

cal importance to the comity doctrine and 73

the proper administration: of state 2

criminal justice systems and the Federal

Circuit Courts are deeply divided as to

the proper rule. Yet because of the

short term nature of the present inter-

locutory order and the limited appeal

from this interlocutory order, the pre- 1

_ | sent controversy te, “capable of repeti- a

ton yet evading evi. 3

a ' *

i be

* ‘

eee ee wee N 7 rs ~ 2 „ BS J 1 4 7 . Ne a

in direct conflict with decisions of the

Fourth, Fifth and Eighth Circuits holding

that a federal court must accept a waiver

of exhaustion by the State. Furthermore,

the present decision permitting a waiver

of exhaustion is also in express conflict

with decisions of the First, Second,

Third, Sixth, Ninth and Tenth Circuits

which have held that the exhaustion

requirement under Rose v. Lundy, may not

be waived. The present decision is also

a misconstruction of Rege. z. Lundy and is

directly in conflict with decisions of

the Fifth and Sixth Circuite, requiring

that a. "mixed petition” must be

dismissed..

1 : ee

— . a es jo * ne * 8

rn CS a ta on Sr oe

penalty cases and one third of those

4 cases arise in the present jurisdic-

5 tion, The Cirouit Cort has miscon- 2

strued and misapplied the comity doc-

trine and the power of any federal court

to order a state court to conduct a state

& court proceeding in the face of the

State's express statement that it did not

wish to proceed with a, state proceeding.

| D.

The Circuit Court has grievously — 4

1 erred in applying Rose v. Lundy, and . a i

refusing to correct or recognize the

4 f present abuse of the great writ. Defense

im counsel made a deliberate tactical choice” |

‘ at the eleventh hour not to seek state |

remedies readily available. ‘The Defen- *

dant by euch e choice has waived any es-

plaint of error. Such a tie isa

er cause of abuse of the great weit tn

SOPs % as;

. the. death. ‘penalty cases: * should * 8 8 er ;

gent ee eee ee :

1 coe

‘ +"

VI. #

ARGUMENT * 1

A. .

Although the trial court below has 1

issued an order accepting the State's a 5

waiver of the exhaustion requirement and

denying the Defendant's Motion for a Con-

tinuance, the present cause still

presents an actual substantial case or

controversy between adverse interests. N

Both parties have filed Motions for 1

Rehe ar ing seeking to ‘set aside or stay |

the trial 3 action in this case. *

‘Forthernore, the present controversy

is an ‘Lesue of critiogl importance to the

tmediate proper administration of ‘the

state criminal justice raten nd. the

application 2 che comtty doctrine. *

are deeply divided as to the proper rule.

However, because of the short term nature

of the present interlocutory order; the

prompt disposition of state remedies by

2 . the State Court system and the limited :

appeal from this interlocutory order, the

& present controversy is, capable of repe-

tition yet evading review.” See, Southern

Pacific Terminal Co. X. I.C.C., 219 U.S.

5 498 (1911). It is apparent in the pre- >

d sent case and in the decisions noted in ; 3

. Knight v. Wainwright, and Arango v. : 4

ad Wainwright, infra that the present matter

5 will continue to block the proper admin- a

* istration of the State's criminal justice —

1 systems. This Court therefore has

7 jurisdiction and should exercise.

jurisdiction in this most important

ay * issue.

In Felder v. Estelle, 693 F.2d 549,

at 554 (Sth Cir. 1982) in requiring the

federal district court to accept a waiver

of the exhaustion requirement by the

State, the Court concluded:

"We see no reason why a federal

court, in the name of comity, 5

should refuse to abide by i

ee State's a tr a This conclusion is

2 supported by our proper relations

between sovere ign states, rather

than between judicial systems."

Similarly, in Tolg v. Grimes, 355 F.2d

: 92, at 97 (5th Cir. 1966) in accepting a

8 state waiver of exhaustion and rejecting a

yg | any notion that the cause’ should be cons" i

tinued for further exhaustion of state ea

claims the court part as

28 £ it is « :

Court, that substantial justice

will be furthered by s waiver." 3

Bolstering the foregoing analysis, in

Jenkins L. Fitzberger, 440 F.2d 1188 at a :

1189 (4th Cir. 1971) the Court required os

the Maryland District Court to accept the

State s waiver, N that:

= stantive merit to any of Jenkins’

* claims, the state, its

* lawyer, the Attorney General, has

2 clearly made that ice here and

Be, for good reagon. A dismissal on *

5 the merits prevent the possi-~ . ae

* bility chat state would re- oe

. the ste to answer 4 new ‘Petition Pe

state courts and: a sut 3

"Concluding that there is not sub-

478 F. 2d 1026 (5th Cir. 1973)(Part IV

citing Jenkins) affirmed in part, 510

F.2d 363 (5th Cir. 1975) (en banc);

Messelt v. Alabama, 595 F.2d 247 (5th

Cir. 1979); Cf; also, Blackwell v. Wolff,

454 F.2d 48 (8th Cir. 1972). Despite

this the Eleventh Circuit declined to

adhere to these decisions and is direct

conflict therewith.

Furthermore, the First, Second,

Third, Sixth, Ninth and Tenth Circuits

have expressly held contrary to the pre-

sent decision, that exhaustion of State

remedies may not be waived by any party

under any circumstance. See, Dicarelli

‘Zs Seay. 543 F.2d 466, 471 1 Cir. 1976)

(en banc); in:

ve Hatrick, 3. ber e oe

winees

x” Cir. 1977)5, ae _ 1

*. Fests. 513 7. 20 1313, 1314 at note ee eae

— *. 12 : 4 ae be N

1 ahs

tis =

“4

n .

8 Th

T eS ee

Bowen v. Teunessee, 698 F.2d 241 (6th

- | wea ~~ 7. >. 1 * o S oe 7 nL ae =

(2d Cir. 1975); Needel v. Scafati, 412

F. 2d 761 at 765-766 (tet Cir. 1979);

Cir. 1983)(en banc); Batchlor v. Cupp,

693 F.2d 859 (9th Cir. 1982). Naranjo v.

Ricketts, 696 F.2d 83 (10th Cir. 1982).

The present decision therefore presents a

real conflict upon a substantial question

which can only be resolved by this Court.

Furthermore, a federal court cannot

te 7

D .

properly order a continuance and grant a

stay of execution to permit a defendant -

to raise unexhausted claims in state :

court. In Bowen v. Tennessee, 698 F.2d a

241 (6th Cir. 1983) the Sixth Circuit 4

sitting en banc and relying upon

Duckworth v. Cowell, 455 U.S. 996 (1982)

and Rodriguez v. Harris, 455 U.S. 997

(1982) held chat 4 federal Court hae bo

@ibcretton but rather =.

mixed „

"[Tjhe unambiguous language of

Duckworth and Rodri z leaves no

doubt that an appellate court is

without discretion to review cases

of mixed petitions and must remand

such actions to the district court 5

with instructions to dismiss.” 3

Rodriguez and Duckworth each ordered the a

Second Circuit Court and the Seventh

23 Circuit Court, respectively, to remand

and dismiss mixed petitions upon the au-

thority of Rose v. Lundy, supra. Accord, =

Galtieri v. Wainwright, 582 F.2d 348, ac :

355-360 (5th Cir. 1978)(en banc). The

present Circuit Court is bound by Rose 2

and Galtieri and the direction in “a

Rodriguez and Duckworth. However, the =

continuance mechanism approved by the

1 court below flies into the face of both

¥ the rule and policy of Rose v. Lundy. In :

om sum, the State is ordered to proceed :

where it has expressly declined to r

proceed and where counsel has made a

deliberate tactical choice not to file in

State Court. Comity and the notion of

respect for state judgments thereunder

have become an illusion in such a circun-

stances.

Additionally as noted, the present

opinion permitting a continuance in the

face of the State's express wishes to the

contrary is a direct order to the State

to proceed with a state collateral

3 proceeding in state court. Hoskins x.

3 Wainwright, 485 F.2d 1186 (Sth Cir.

1 1978); Dixon v. Beto, 472 F.2d 598 (Sth:

3 Cir. 1973); Anderson v. Beto, 469 F. 2d

3 1076 (Sth Cir, 1972), and Clarke v.

expressly prohibit a federal. Court from

ordering a state collateral Proceeding.

Henderson, 465 F.2d 888 (5th Cir. 19%),

1 *

Ea os

Gas aie reece Sok e 9399

ee:

igi

i~) Ties

— x

conflict with both the substantive law

and manifest federal policy to the

contrary.

The importance of the present con-

troversy cannot be overstated. In

McKaskle X. Vela, _U.S.__, 34 Crim.L.

Rep. 4144 (1984) in dissenting from the

denial of certiorari Justice O'Connor

joined by Justice Rehnquist and the Chief

Justice, specially noted the critical

nature of the proper application of the.

exhaustion and comity doctrine:

"This petition presents the

tant question whether the.

tion rule in 28 U.S.C.

* * *

"Whatever the correctness of the

Court of Appeals''ineffective as-

sistance” determination, see Supp.

App. E2-E8, this petition raises an

issue of considerable importance to

the administration of federal

habeas corpus. The Fifth Circuit's

consideration of factual allega-

tions not specifically raised in

the stae court undermines the

policies behind the requirement

that state remedies be exhausted

before federal habeas corpus relief

becomes available."

The present “exhaustion” issue is even

more critical because it is directly

related to the prompt disposition of the

death penalty cases and one-third of

those cases arise in the jurisdiction of

the Eleventh Circuit. See, A47 at n6. As

previously noted, State seeks to waive

exhaustion to avoid unnecessary delay and

chronic avoidance of justice, a critical

problem in death penalty and other

serious criminal cases. See, Barefoot 2

Estelle, 0.8. 103 S.Ct. 3383 (1983)

soy

$F 1 **

PR i tik

see, also, Rose v. Lundy, U. 8. 102

8. Ct. 1198 at 1205 (1982) quoting,

Sanders v. United States, 373 U.S. 1 at

18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

Compare, Knight v. Wainwright, U.S.So.D.

Ct. Case No. 81-391-CIV-JE, opinon filed

March 5, 1981 (A71-A76 )[Muhammad (a.k.a.

Knight) v. State, 426 So.2d 533 (Fla.

1983) (on exhaustion of state remedies)

cert. denied, U. 8s. 104 S.Ct. 199

(1983), rehearing denied, U. 8s. 104

s. ct. 339 (1983) 1. However, the "right"

of the State to waive exhaustion to

insure speedy justice is a hollow right

indeed, where it rests purely upon the

discretion of the federal trial court and

such whimsical and arbitrary factors as

the condition of the federal and state

dockets. The state and federal system is

not a “two tiered” system as the present

opinions suggests, meaning that the state

court system is somehow on a lower

„tler. Comity, is a doctrine which

repudiates such a concept and is designed 00

solely for deference to the State Courts.

Concomittantly, if the State and its

courts chose not to invoke comity, the

federal Courats should be bound by that

decision. There is no theory of comity

by which a federal Court should tell a

state Court system, "“We-know-better.”

Such analysis is repugnant to the very

theory of respect upon which comity is

based. The present opinion is therefore

a substantial departure from the accepted

or usual course of judicial proceedings

5 and the foregoing decisions and must be ia

; reviewed by this Court. pe

4 .

a D :

£ 0 ig

me Finally, the State submits that the 7

Defendant's unexhausted claims should de

rejected as an abuse of the writ and

waived by counsel's deliberate tactical

choice. See, Jordan v. Procunier, F.

Supp. (E. D. va. 1983, 34 Crim.L.Rep.

2033). The present circumstance exists

not from any error by the State or

federal courts, but because defense coun-

sel, an experienced defense lawyer, and a

former Assistant Public Defender in

Miami, Florida, made a deliberate

eleventh hour choice not to seek remedies

readily available in the State Court

system. See, Knight v. State, 394 So.2d

997 (Fla. 1981). Counsel instead obtain-

ed a stay in federal court without notice

to the State and guaranteed delay and

frus trat ſon of the State judgment by

deliberately and knowingly raising

unexhausted claims. Such a tactic is a

major cause of delay and abuse of the

writ in the death penalty cases. See,

Knight Y. Wainwright, supra; compare

also, Arango v. Wainwright, 563 F.Supp.

1181 (S.D. Fla. 1983) (court denies motion :

to continue in order to exhaust state

remedies), reversed, for exhaustion,

Arango X. Wainwright, 716 F.2d 1353 (11th

Cir. 1983)(adopting the present approach).

The Court below rejected the State's

complaints with regard to the tactics of

counsel, asserting that there was no rule

or policy prohibiting such piecemeal and

delaying tactics and that defense counsel

was only trying to obtain one federal

proceeding ultimately. A16-A21. Contrary

to the Circuit Court view, a defendant

may not litigate in any court a constitu-

tional claim that counsel deliberately

forfeited before the state Court. E

Engle v. Ieaac, . s. 102 S.Ct, 156%

at 1570 and bote 28 (982). Additionally, ==”

« ad t 5

„ 1 a a * : a”

y * hes iS ae Sv 4 . 10

2 o ae

* : - 4 ee mF

‘ - * ad ye

® . * 7 ie

K — er

: : f * pt * * ' . * 4 2

SON. he $f ) W e *

ae S. 2 9 a aN and — 4 * 2

» 4 r * ö

3 MCRL.

. ay

30 2

in Rose X. Lundy, 102 S.Ct. at 1205,

E quoting Sanders v. United States, 373

U.S. 1, at 18, 83 S.Ct. 1068, 10 L.Ed.2d

* 148 (1963) the Court endorsed the rule

that:

180 a prisoner deliberately with-

holds one of two grounds for

federal collateral relief at the

time of fil his first applica-

tion, in the hope of being granted

two hearings rather than one or for

Fs some other such reasons, he may be

* deemed to have waived his right to

a hearing on the second application

n withheld ground. The 1

same may true if, as

Doo, the prisoner deliberately

abandons one of his unds at the

first hearing. Noth in the tra-

ditions of habeas corpus requires 3

i the federal courts to tolerate 2

5 needless piecemeal litigation, or 5

7 to entertain collateral proceedings :

2 hose only purpose is to vex, ie

harass, or delay."

1 The present cause demonstrates a deliber-

_ ate decision to not assert constitutional

rights, or constitutional objections in.

state Court, which decision-was neces- :

sarily entrusted to the Defendant's ok a

5 7 me - 2 — 2

n Has * 8 i is

, ee ey ae 2 S sagt +i. ae $Y 25 * se

„ 3 + Se By va ee.

g 7

„ *

attorney. The trial court therefore erred

such a theory where counsel then must |

assert the unexhausted claims. Cf., Rose

v. Lundy, 102 S.Ct. at 1204-1205 (Section

"IIIC"). The present tactic designed for

delay is an abuse of the writ warranting

the dismissal of such claims. See, Rose

J Lundy, supra, at III (C). The Court

below has manifestly erred in declining

to adhere to Rose v. Lundy and the cause

should therefore be heard by this Court.

| 32

VII.

CONCLUSION

WHEREFORE, based upon the foregoing,

this Court should accept jurisdiction.

; RESPECTFULLY SUBMITTED, on this

day of February, 1984, at Tallahassee,

Leon County, Florida.

JIM SMITH

5 Attorney General

= CALVIN L. FOX, Esquire

* Assistant . — General

* 401 R. W. 2nd Avenue

3: (Suite 820)

‘ Miami, Florida 33128

(305) 377-5441

APPENDIX TO

BRIEF OF PETITIONER ON JURISDICTION

INDEX ,

U.S. District Court Order

Filed June 7, 1982, Granting

Continuance and Permitting

an Appeal Under Rule Dill tae «60 ws bee Al-A9

Opinion Filed September 6,

1983 of Eleventh Circuit

Reversing U.S. District

COURS. » ad 6 06s 0 0h be ays 6 ceb.s eee eve Al0-A67

Order Filed October 11,

1983 Denying Rehearing

and Rehearing En Banne A68-A69

Order Filed October 19,

1983 Denying P6666 26 A7 0

Order in ht v. Wa t

Filed Mar An eee

State's Waiver and Granting

Continuance for Exhaustion....... A71-A76

Order Filed February 10,

1984, Denying Continuance

and Accepting State Waiver....... A77-A89

App.1 1

UNITED STATES DISTRICT COURT a

SOUTHERN DISTRICT OF FLORIDA 3

CASE NO. 82-365-CIV-JCP

WILLIAM LEE THOMPSON, )

Petitioner,

vs.

LOUIE L. WAINWRIGHT,

' Respondent.

— —— — — —

AMENDED ORDER GRANTING PETITIONER'S

PERHTTTING AN APPEAL UNDER RULE 5 3

——

„ eT ee

apt

< 1 N „

* Ey 5

On February 24, 1982 petitioner filed

his petition for Writ of Habeas Corpus.

The petitioner includes only exhausted

claims but petitioner has applied for a

continuance of hearing on che merits of 7

the petition until he bas filed end . 3 a

_ Prosecuted in the "Florida courts bis ed

ge 2 3 ie

a ov :

fk. ap 2 as

: *

App.2 a

unexhausted claims. These unexhausted

claims challenge the entry of the guilty _

plea as being involuntary and assert |

ineffective assistance of counsel. The *

respondent opposes this application.

- Three options have been considered to

resolve this situation. First, since the

application for continuance was filed 9

concurrently with the petition, the Court ce

could construe this as being a mixed peti- a

tion. Then the petition would have to be 3

é dismissed in accordance with Rose v. Lundy, 4

102 S.Ct. 1198 (1982).

2 ö a

ay 2

The second option is also a corollary 1

a of the holding in Rose. If the application a

8 for continuance is denied prceedings would

continue until « decision was reached on

the exhausted claims. “Alternatively, .

the petition was dismissed as containing "5 8

App · 3

exhausted and unexhausted claims, the

petitioner, under Rose, has the choice of

returning to State Court to exhaust his

claims or of amending the petition to

present only exhausted claims. Should |

petitioner proceed in this court with his :

exhausted claims, it is conceivable that |

he will return with a second petition

when he subsequently exhausts his now un-

exhausted claims. Since that would re-

sult in an attack on first his sentence

and later an attack on his conviction, that

option appears unsatisfactory. But the

rejection of that option at this time .

should not be contrued as a finding that 4

the petitioner could filed a subsequent

petition without risking dismissal under

Rule 9 of the rules governing Section 2254

App.4

The third option is to grant the

application for a continuance of the hear-

ing on the merits. This seems most con-

sistent with the underlying policies of

the exhaustion requirement when applied to

a death penalty challenge. It will acconm-

plish the same result as the first option.

The exhaustion requirement is a judicial

doctrine, now codified, to further the

notions of comity that arise in a dual

system of government. "...(f)ederal

District Courts ought to dismiss mixed

petitions so that petitioners will exhaust ö

all their constitutional claims prior to

Federal Court interventicn. Considerations ‘a

of comity, avoidance of piecemeal litiga-

ts tion, economy of judiciel energy and the

= fullest consideration of a petitioner's

* claims are best served if all of a peti-

tioner's claims are present to the STate 2

App.5

Court system at one time... The goal is

to have a petitioner travel through each

system only once, at most, in quest for

vindication of alleged constitutional

errors." Galtieri X. Wainwright, 582

F.2d 348 (5th Cir. en banc 1978) at p.356.

“Consequently, one federal proceeding em-

bracing all claims can be attained only

by requiring a petition to submit all of

his claims to the State Courts before he

seeks federal habeas corpus relief."

Galtieri at p.357.

While continuing the federal petition

allows Mr. Thompson to proceed through

the state system a second time, it is pre-

ferable to have partial fulfillment of the

goal than none at all. Under the circum-

: stances recountered in the application for 7

A continuance, it appears that petitioner 4

a could not have raised these grounds to

App.6

challenge his conviction until there was

a change of counsel. Unless the petition-

er is granted relief by the Florida Courts,

the outcome of the procedure will more than

likely be the same as if the petition was

dismissed in accordance with the first

option. Either way the petitioner may ex-

haust his claims in State Court. There-

after all of the petitioner's claims can

be dealt with at one time.

It is recognized that the third option

is more beneficial to the challenge to a

death sentence than when the underlying

conviction is at issue. It is of advantage

to the death row inmate to indefinitely

continue a federal habeas petition while

time is spent litigating unexhausted clains.

The continuance in itself is s partial

victory by maintaining the status quo

5” ae

- bie 7

App.7

The concerns of Justices Blackman, White

and Stevens in Rose v. Lundy, are not as

relevant when the challenge is to the death

penalty as opposed to a sentence of con-

finement. When liberty is in question, the

habeas petitioner has an incentive for the

Federal Court to hear its most meritorious

constitutional claim as quickly as possible.

The total exhaustion requirement can thwart

both the petitioner's and society's in-

terest in swiftly redressing unconstitution-

al confinements. But where the death

penalty is involved any delay can only

work to the petitioner's advantage. While

it is more difficult to measure the impact

on societal interest, there is no doubt

chat such delays result in inciting a hue

and cry from the public.

The Court is reluctant to institute any

wnnecessary delay in this process and is

App.8

sympathetic with the public's negative

perceptions of such delay. But on the

face of the record before the Court,

which at this time contains the petition,

application for continuance and the re-

sponse to the application, it is perceived

that the petitioner is making a good

faith effort to litigate the entirety of

its substantial constitutional claims in

one federaL proceeding. More than likely,

the time utilized at this juncture to de-

termine whether there as been an abuse of

the writ would not be prudently spent.

However as reflected in the foregoing

analysis, the present issue involves a

substantial and controlling issue of law N

as to which there is substantial ground ö

for difference of opinion. An immediate 2

appeal from the present order may materisl- 2

ly advance the ultimate termination of the

Pee |

3 ; 1 1

ts 2

8 yee >

1 8 2 i‘ 7 * 2 * . 9

— 7 — 5 * 5 1 4

gan” ’ 8 ; 1 , * a ae ** MP od) *

* 7

App.9

ORDERED and ADJUDGED, that the Petition-

er's application for a continuance pending

the prosection of this unexhausted claims

in the Florida Courts is granted. It is

further,

ORDERED and ADJUDGED, that within the

meaning of Rule 5 of the Federal Rules of

Appellate Procedure and 28 U.S.C. f 122 (b)

the Respondent is granted permission to

seek immediate review of the present order.

DONE and ORDERED in Miami, Dade County,

Florida this 7th day of June, 1982.

cc Proposed Copy: Michael VanZampt 3

cc: Michael VanZampt

Calvin L. Fox

App.10

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-6052

WILLIAM LEE THOMPSON,

Petitioner-Appellee,

vs.

LOUIE L. WAINWRIGHT,

Respondent-Appellant.

—

Appeal from the United States District

Court for the Southern District of

Florida

(September 6, 1983)

a Before GODBOLD, Chief Judge, KRAVITCH,

* Circuit 2 and MOR Senior

| Circuit Judge.

oP,

GODBOLD, Chief Judge:

App. 11

In this habeas corpus case brought by a

Florida state prisoner under sentence of

death we decide three issues. We hold that

a district court having before it a habeas

petitioner containing only exhausted claims

may continue the case at the petitioner's

request pending his presenting to the state

courts other claims that are not included

in the petition and have not been exhausted.

We hold that the state of Florida through

its attorney general may waive the require-

ment of 28 U.S.C. Sec. 2254 that a petition-

er seeking federal habeas corpus must first

exhsut state remedies. And we hold that

the district court, in its discretion, may

accept or reject the state's waiver.

Based on his guilty plea, petitioner

Thompson was convicted in Florida court of

first degree murder, kidnapping and sexual

battery. As recommended by the sentencing

a! ah 8 .

+ ont . ute it sh i%e ve = r 1

8 ö N * en

- * * Ning 4 N . 4 1 > :

2 we.

App.12

jury, the trial judge imposed the death

sentence. The Florida Supreme Court affirm-

ed Thompson's conviction and sentence on

direct appeal, placing special emphasis on

the extreme brutality of the crime.

Thompson v. State, 389 So.2d 197, 200 (Fla. ‘

1980). The sentencing court summarily

denied Thompson's subsequent motion for

collateral relief under Fla. R. Crim. P.

3.850 (West Supp. 1983), and the Florida

Supreme Court affirmed. Thompson v. State,

410 So.2d 500 (Fla. 1982). Throughout all

these state proceedings Thompson was re-

presented by his trial counsel 1

Only days before his scheduled execution

Thompson secured new counsel. The new

attorney filed a petition for habeas corpus

1 This is the chronology of Thompson's cases: 3

March 1976 offense committed; jn

—

App.13

in federal district court, and that court

granted a stay of execution. The petition

raised numerous constitutional allegations

previously addressed to the state courts.

Contemporaneously Thompson's attorney

filed a motion for continuance,. (a post-

ponement of any further proceedings), set-

ting out that there were two grounds for

post-conviction relief that. were not alleged

TFootnote I continued)

Sept. 1978:

Nov. 1980:

July 1981:

Aug. 1981:

Jan. 12, 1982:

Feb. 5, 1982:

Feb. 11, 1982:

Feb. 24, 1982:

conviction and sentence;

affirmed by Florida

Supreme Court;

motion to vacate filed,

state trial court;

motion denied without

hearing;

commutation hearing

before governor of

Florida;

death warrant signed for

execution on March 2,

1982;

denial of motion to

vacate affirmed, Florida

Supreme Court

petition for

corpus and motion to

continue hearing, filed

federal district court;

IBY ee

App.14

in the habeas petition (entry of an in-

voluntary and unintelligent guilty plea

and ineffective assistance of counsel);

that these grounds had not been raised

earlier because petitioner had been repre-

sented throughout previous proceedings by

trial counsel; and that these issued needed

to be raised in the first instances in state

post-conviction proceedings.

The respondent, secretary of the Florida

Department of Corrections (hereinafter

“the state"), represented by the Florida

attorney general, opposed to motion for

(Footnote I continued)

Feb. 25, 1982: stay of execution grant-

‘ed federal district

: court;

April 1982 federal district court

order granting contin-

Oct. 1982 — to appeal

: granted by this court,

appeal expedited.

ies *

i — 2 bow CAA 6 > Oe I ae a 7.

—

App.15

continuance on the ground of deliberate

bypass, see Fay v. Noia, 372 U.S. 391, 439

(1963), and abuse of the writ, see Rules

9(a) and (b) of Rules Governing Sec. 2254

Cases in U.S. District Courts; Sanders v.

U.S., 373 U.S. 1, 15-23 (1963).

The court conducted a hearing. The

attorney general notified the court that

the state waived exhaustion of the two un-

exhausted claim.”

2 Petitioner contends that the attorne

general did not timely tell the court that

the state waived exhaustion. If this has

any legal significance, it is laid to rest

by an order later eyed: the tg

court granting a stay pen „appeal. In

this order — court N state

has waived exhaustion, and referes to an

affidavit by the attorney general that

laced notice to the court of waiver as

ving been given before the order grouting

@ continuance was entered. This is a suffi-

cient finding, express or implied, that the

court was timely notified that the attorney

general waived exhaustion.

App. 16

The court granted the continuance on

the ground that this was the action most

consistent. with the underlying policies

of th exhaustion requirement as applied

to a death penalty challenge. The court

noted that Thompson had been unable to

reaise the two new claims until he changed

counsel and that he appeared to be making a

good faith effort to litigate all of his

constitutional claim in one federal case.

The court did not give effect to, or even

refer to, the state's waiver.

The court certified the case for inter-

locutory appeal under 28 U.S.C. Sec. 1292(b)

and at the request of the state stayed its

order pending appeal. We granted leave to

2 appeal.

Before t:his court the state continues ee

1 5

assert on bypass and shane of the writ

App.17

grounds that the court should not have post-

poned further action on the federal petition.

Its main point is however, that the court

erred in not giving effect to the state's

waiver of exhaustion.” Citing its interest

in prompt final determination of the vali-

dity of convictions and sentences rendered

in its courts, the state says that as a

matter of policy it wishes to have avail-

able to it the discretion of explicitly

waive exhaustion in habeas cases. More-

over, the state contends that once such a

3 The two unexhausted state claims are not

included in the federal petition. However,

petitioner has triggered federal jurisdic-

tion and has expressed his desire to have

all constitutional issues settled in the

one federal proceeding. Should the court

accept the state's waiver, it can marshal

the issues and require petitioner to amend

to bring in the non-exhausted claims, there-

by affording both state and petitioner the

single plenary adjudication that both seek.

1 N D

8 W. > ise * > oa ne 4

eS Se ee Sf ee eee Se Nes On Se ee oe ae

App.18

waiver is asserted the federal district

court is bound to accept it. These two

prongs of the waiver of exhaustion issue

go to the heart of the two-tier state-

federal system of review of the constitu-

tionality of state criminal convictions and

sentences. They implicate the principles

of comity and of federalism that underly

the two-tier review. And they involve the

search for finality in criminal cases.

I. The power of the court to delay the

federal proceedings. The state's

contention that the district court had no

power to grant a continuance of the habeas

petition pending before it, or abused its

discretion in doing so, is patently without

merit. The court has the power to control

its docket. So long as it abides by the

limits of discretion, it can leave a habeas

petition dormant on its docket while the

App.19

petitioner presents to the state court un-

exhausted claims.

The express aim of the district court,

set out in its carefully phrased order,

was to enable all constitutional claims to

be settled in one federal habeas proceeding.

Rose v. Lundy, 455 U.S. 509 (1982), does

not forbid the continuance. The petitioner

did not file a mixed petition seeking rul-

ing on his exhausted claims. To the con-

trary, he asked that ruling on his ex-

hausted claims be withheld until unexhaust-

ed claims could be presented to the state

court and then all claims, properly ex-

hausted, considered in the federal court

at one time. This furthers the interests

underlying Rose rather than impedes then.

The district court could have denied a

delay, decided the issues that were alleged

App.20

in the petition, and left Thompson to the

risks of a second federal petition on the

two new claims. But no rule or policy

required it to do so.

The state's objections to the continuance

order are dubious. It argues that under

Fay v. Nois Thompson deliberately bypassed

state courts by filing“ his unexhausted

claims in federal court instead of state

court. The short answer is that Thompson

did not file his unexhausted claims in

federal court but rather seeks to get them

ruled on in state court. The state raised

an abuse of the writ argument, but declined

to pursue it after noting that petitioner

was making a good faith effort to avoid

piecemeal letigation and ot attain the de-

sirable end of one single, plenary federal

proceeding. |

App.21

In its brief the state contends that the

motion should have been denied because

petitioner failed to raise the issues in

his first motion for collateral relief in

state courts and because eventually, when

presented to the federal court, the two new

claims would be barred by Wainwright x.

Sykes, 433 U.S. 72 (1977). At oral argument

the state acknowledged that petitioner vio-

lated no state procedural rule by failing

to raise the two new claims in his first

motion for collateral relief and thus that

Sykes would not be triggered.

The district court did not err in grant-

ing the continuance. :

II. The power of the state to waive.

(A) Authority of the attorney general

under state law.

Under the Florida constitution,

Article 4, Sec. 4, the attorney general is

App.22

a member of the cabinet and is “the chief

state legal officer" of the executive de-

partment. By statute, Fla. St. Ann. Sec.

16.01(2) (West Supp. 1982), he must perform

“such other duites appropriate to his office

as may from time to time be required of him

by law or by resolution of the Legislature."

His responsibilities with respect to litiga-

tion are covered in subsections (4) and (5)

of Sec. 16.01. The attorney general:

(4) Shall appear in and attend to,

in behalf of the state, all suites

or prosecutions, civil or criminal

or in equity, in which the state

may be a party, or in anywise

interested, in the Supreme Court

and district courts of appeal of

this state.

(5) Shall appear in and attend to

such suites or prosecutions in any

other of the courts of this state

or in any courts of any other state

or of the United States.

It is obvious that the "such suits” in (5)

are those described in (4), "all suits or

App. 23

in which the state may be a party, or in

anywise interested." The statutory mandate

to the attorney general is not merely to

appear but to “attend to, in behalf of the

state, all suits or prosecutions,” etc.

By Florida judicial decisions, the grant

of specific state powers to the attorney

general does not deprive him of the powers

belonging to him under the common lav,

which include presecuting "all actions

necessary for the protection and defense of

the property and revenue of the state..."

State ex rel. Landis v. S.H. Fress & Co.,

155 So. 823, 827 (Fla. 1934). Also, 1

is his duty, in the absence of express

legislative restrictions to the contrary,

to exercise all such power and authority as

public interests may require from time to

time." Id. Moreover, in Florida the office

of attorney general i¢ in many respects

‘3 4

1 * 2 - „ *

A eee si T N

* — e 3 * ’ . > a os = =e. * Figs pr

9 Se eet, ey ee 8 r ed) oe *

7 App. 24

judicial in character, and he is clothed

with considerable discretion. Id. at 828.

The attorney general's authority runs

beyond responsibility to the government

qua government. He is responsible to the

people. "The Attorney-General is the

attorney and legal guardian of the people,

or of the crown, according to the form of

government." State ex rel. Davis v. Love,

126 So. 374, 376 (Fla. 1930). When

occasion arises it is his duty to, use

. means most effectual to the enforcement of

3 the laws, and the principal law officer

of the state." Id. at 377.

We conclude that under these powers

granted by Florida common law, statutes

and case law, the state's attorney general

3 had the nut bor ity to expressly waived —

", © exhaustion of state remedies so that all

App.25

claims could be presented and decided in

one federal proceeding. Florida law gives

the attorney general authority to waive

exhaustion whether exhaustion, as we hold,

promotes the interests of the state as

sovereign or, as some other courts have

held, promotes only the interests of state

courts. See note 11 and accompanying text

infra. We hold that, so far as state law

is concerned, the attorney general had

authority to speak for the interests of

state courts and judges as well as the

other instrumentalities of Florida state

sovereignty. We believe that if the Florida

courts were presented with these same ques-

tions they would reach the same conclusions.

(B) Power of the state to waive - federal

law

This brings us to consideration of

whether principles of federal law will

—

‘ P 1 Pt a

» N e 7

— 8 a N n y Lies

|), ee N Bae nes) eee

App. 26

deny effect to the state's waiver exercised

through ite attorney general as authorized

officer. This requires us to examined

the principles of comity and federalism

that underlie the two-tier system of colla-

teral review and the exhaustion require-

ment that has been carried forward into 28

U.S.C. Sec 2254 (b)-(c) (1976).

(1) The prior history of state waiver

? of exhaustion

In a long line of cases this circuit,

the former Fifth, and the new Fifth have

held that in the district court a state,

through its attorney general, by express

act or by failure to raise the issue, can

waive petitioner's failure to exhaust.

West brook v. Zant, 704 F.2d 1487, 1492-94

(llth Cir. 1983) (concession in answer

that recourse to state courts would be a

futile); Shaw v. Boney, 695 F.2d age Ange” 2 “ll

5 89 if seit 2 1 i:

App.27

n.l (llth Cir. 1983) (failure to raise);

Lamb v. Jernigan, 683 F.2d 1332, 1335 n.1

(llth Cir. 1982) (concession in answer that

Tesort to state courts would be futile);

Felder v. Estelle, 693 F.2d 549 (5th Cir.

1982) (express waiver); Houston v. Estelle,

569 F.2d 372, 375-76 (5th Cir. 1978)

(statement in answer: "Respondent does

not contend that Petitioner has failed to

exhaust his state remedies."); Hopkins

v. Jarvis, 648 F.2d 981, 983 n.2 (Sth Cir.

1981) (Unit B) (exhaustion raised in ans-

wer, tee held petitioner bad ex-

hausted, issues not reised before district

: court on review of magistrate'’s report and

-—«.s fecommendations; held waived); Messelt v.

Alabama, 595 F.2d 247, 249-51 (5th Cir.

1979) (failure to raise); West v. Louisiana,

= 3

478 F.2d 1026, 1034-35 (5th Cir. 19733

(failure to raise), aff'd in pertinent

pe ig

ie: . a:

mn, - 4 *

* Ste vet

we ity so

7 ‘ * 1 8 * 2

* N ens

r ae

App. 28

The court of appeals may treat the waiver

before the district court as effective and

consider the unexhausted claims even though

on appeal the state argues non-exhaustion.

Messelt v. Alabama; West v. Louisiana.

See generally, Comment, State Waiver and

Forfeiture of the Exhaustion Requirement

in Habeas Corpus Actions, 50 U. Chi. L. Rev.

354 (1983).

A number of the foregoing cases involve

"futility of exhaustion," where there is

ineffective state process or an absence

of available state process. There are

exceptions to exhaustion that have been

codified in Sec. 2254(b). It is obvious

that when futility is contested there is no

‘waiver of exhaustion. But when the state

affirmatively acknowledges futility, or ex-

presses uncertainty, its statement is often

considered under the rubric of waiver and

‘concession on appeal that recourse to state -

App. 29

accepted without analysis of whether the

acknowledgement is substantively correct.

Similarly, the state may be asked to take

a position on futility and may not respond,

and its silence then may be treated as

waiver.

At the appellate level we have treated

as a waiver the state's failure to raise

exhaustion on appeal, Shaw v. Boney,

(failure to raise in district court and

on bppest); Lamb v. Jernigan, (same), and

its concseeion that resort to state courts

would be futile. Warren v. Conner, 365 F.2d

590, 591 (5th Cir. 1966) (vigorous asser-

tion of failure to exhaust; supplemental

statement recognizing uncertainty of state

remedies accepted as waiver); Tolg v. Grimes,

355 F.2d 92, 95, 97-98 (Sth Cir. 1966)

(non-exhaustion argued in district court but

App · 30

courts would be futile). Recently we

have accepted an express waiver of exhaus-

tion addressed to the courts of appeal.

Corn X. Zant, _F.2d__—s (lth Cir. 1983);

Westbrook v. Zant.

In Felder v. Estelle, a post-Rose v.

Lundy decision, the Fifth Circuit held

that the district court erred in holding

that the Texas attorney general could not,

on behalf of the state, expressly waive

failure to exhaust in a mixed petition case.”

Felder recognizes that some cases con-

cern "waiver by negligence” or inaction

* Felder remanded to the district court

with instructions to accept the waiver and

reach the merits. We leave it in the dis- 4

cretion of the district court whether to we

accept the waiver. See Parts III and IV |

inten. @ Sweet ¥. Culp, 640 ¥.24.293.

th Cir. 1 discussed infre. | ae

App.31

while in others the waiver is express.

693 F.2d at 554 n.4. Some of the “waiver

by inaction" cases are bottomed on what

might be called a strict pleading approach.

Resorting to principles of estoppel applied

generally to other litigants and defenses,

the court concludes that the state has

waived exhaustion by failing to raise the

issue, either in district court or on

appeal.” Although we prefer to rest our

decision on the broader ground that the

nature of co. ty, as incorporated by Sec.

2254 exhaustion, permits the state attor-

ney general to waive exhaustion expressly

—

Judge Merritt, dissenti

(eh Clee 198s

T ssee, F.2d

. fas set out the reasoning ——

underlies this approach:

Rule 5 of the rules governing

habeas corpus cases in the District

- ‘ * N 5 2288

App .32

on behalf of the state, see Part II, B,

(2) infra, the strict pleading cases pro-

vide useful guidance. These cases imply

the validity of two important conclusions.

First, exhaustion is not an inflexible rule

of subject matter jurisdiction that the

court must raise sua sponte but is rather

subject to waiver and estoppel. Second,

the state attorney general may waive ex-

haustion on behalf of the state.

As Felder points out, 693 F.2d at 554

n.4, to treat express waivers differently

from waivers by inaction “would only lead

to illogical and unmanageable results."

(Footnote 5 continued)

makes the Federal Rules of Civil

Procedure applicable. Rule 12(h),

Fed. R. Civ. P., provides that the

failure to raise a defense other

than subject matter jurisdiction

shall constitute. a waiver of the

defense. The defendant by f

ts cla a Aa

6 Id be dienissed. it a

App.33

It would make no sense, and indeed invite

deviousness and uncertainty, to hold that

an attorney general cannot do advisedly

what he can do accidentally. Moreover, we

have described a third type of case,

closely related to an express waiver, where

the attorney general, in discharge of his

duty as an officer of the court, expresses

uncertainty over whether adequate state

remedies are available or points out that

resort to stich deurte may be futile, and

his expressions are accepted as a waiver of

exhaustion. Westbrook v. Zant; Lamb v.

Jernigan; Tolg v. Goins; Warren v. Conner.

In Westbrook v. Zant, for example, the

state's answer declared that recourse to

state courts on petitioner's unexhausted

claims would be futile and went on to ad-

dress the merits of the unexhausted claims.

Further, the state did not mention non-ex-. i

4 *

App.34

haustion in objecting to the district courts

ruling on the merits of petitioner's unex-

hausted claims. Citing Galtieri v.

Wainwright, 582 F.2d 348, 356 n.15 (5th

Cir. 1978) (en banc), the court held that

once a district court has reached the merits

of an unexhausted claim and appeal is taken,

the appellate court must also entertain the

merits. 704 F.2d at 1494.

But the court did not rely on Galtieri

alone. It mentioned that on appeal, at

oral argument, the state expressly waived

exhaustion. Noting the state's consistent

5 position on exhaustion at both the district |

; court and appellate levels, the court ae

states: "(The state] obviously seeks re- 4

solution [of the unexhausted claims] on the *

merits." Id. In accepting the waiver nade

by the attorney general on behalf of che 23

age the 5 158 a oot ely on a e

eae ogi te ale

fe * eee *

4 e 3

*. 2

5 * — —

> e N. —

N e f

App.35

approach. Rather, it focused on the consi-

derations of comity that lie at the heart

of Sec. 2254 exhaustion. After concluding

that Rose v. Lundy did not preclude the

ea,

state from waiving exhaustion, the court

. stated:

a In our view, holding that a state

4 may waive exhaustion does not run

: contrary to the policy considera-

1 tions of federal-state comity -

2 n total exhaustion of all

; constitutional claims initially in

1 the state courts.

2 704 F.2d at 1494. Beacuse Westbrook rests

. in part on the nature of comity and ex- ~

: haustion, it lends broad and explicit sup-

5 port to the two conclusions that (1) ex-

a haustion is waivable (2) by the state

9 attorney general.

Finally, Supreme Court cases in areas

analogous to habeas exhaustion reinforce the

two conclusions mentioned above. The

‘federal habeas rule relating to Tes grb

Abele. , cx in state court, 2

F : 38 5

4 —

ar . Ba,

App .36

1 Wainwright v. Sykes, 433 U.S. 72 (1977),

provides one analogous situation. Even

though the Sykes rule is, like exhaustion,

founded in part on considerations of comity,

the Supreme Court has refused to consider

the Sykes issue because the state, through

its attorney general, has failed to raise

it. See Estelle v. Smith, 451 U.S. 454,

468 n.12 (1981); Jenkins v. Anderson, 447

U.S. 231, 234 n.1 (1980).

Younger absention furnishes another use-

ful analogy. In Younger v. Harris, 401

U.S. 37 (1971), the Court held that except

in extraordinary circumstances a federal

court must abstain from deciding issues

implicated in an ongoing criminal proceeding

in state court. The Younger doctrine was |

subsequently broadened to preclude federal! 2

court interference with some types had * a

going civil proceedings in state —

1 . Se) N 5

ee 8 6

e . 1 N ee

„I ee ee om

omy

- *.

App .37

See, e.g., Hoffman v. Pursue, Ltd, 420

U.S. 592 (1975). In Ohio Bureau of Employ-

ment Services v. Hodory, 431 U.S. 471, 479

(1977), the state attorney general, appear-

ing on behalf of the state raised Younger

abstention before the district court but

abandoned the issue before the Suprme Court,

“at oral argument. . .resisting the sugges-

tion of [abstention]. . . 431 U.S. at 479.

The Court noted that although the named

appellant was the Ohio Bureau of Employment

Services, the appellant in effect was the

State of Ohio. 431 U.S. at 477. Even

though Younger abstention is, like Sec.

2254 exhaustion, a comity-based doctrine

that arguably springs from deference to

state courts, the Court accepted the state

attorney general's decision, made on behalf

of the state, to subject voluntarily to

federal proceedings. It stated:

App. 38

It may not be argued, however,

that a federal court is compelled

to abstain in every such situation.

If the State voluntarily chooses

to submit to a federal forum, prin-

ciples of comity do not demand that

the federal court force the case

back into the State's system. In

the present case, Ohio either be-

lieves that the district court was

correct [in concluding that absten-

tion was inappl icablel or, faced

with the prosepct of lengthy

administrative appeals followed by

equally protracted state judicial

proceedings, now has conclued to

submit the constitutional issue

to this Court for immediate reso-

lution. In either event, under

these circumstances Y in-

ciples of equity — o not

require this Court o refuse Ohio

the immediate adjudication it seeks.

431 U.S. at 480.

Like Westbrook, Hodory holds that comity

does not categorically prohibit a state

from deliberately waiving a rule designed

in part to promote state interests.

(2) The nature of exhaustion and comity.

Exhaustion of state remedies is not @ 3

concept of subject matter jurisdiction but

1 * * *

2. * 1 1 5 — 3 1

8 * N . a i.) 7 on 7; 7 ‘ an <3 — „ * 4

* . * 3 Sen 1 . 1 ee ae F ve 2 a2

App.39

rather of federalism and comity, intended

to give the state the initial opportunity

to decide alleged violations of federal

constitutional rights. Hopkins, 648 F.2d

at 983 n.2; Felder, 693 F.2d at 552;

Houston, 569 F.2d at 375; Westbrook, 704

F.2d at 1494 n.8; Darr v. Burford, 339

U.S. 200, 204 (1950); Fay v. Noia, U.S.

at 383 S.Ct. at 839 (1963) ("The rule of

exhaustion is not one defining power but

one which relates to the appropriate exer-

cise of power.) (quoting Bowen .

Johnson, 306.U.S. 19 (1939)). 17 Wright,

Miller & Cooper, Federal Practice and

Procedure, Sec. 4264 (1978). The question

is not a federal power but equitable dis-

cretion. Houston.

Judge Thornberry, for the Fifth Circuit,

in Felder v. Estelle, and Judge Higginbotham,

_ concurring in the same decision, and Judge i a

App.40

Gibbons in his dissenting opinion in U.S.

ex rel. Trantino v. Hatrack, 563 F.2d 86,

98, 102-04 (3d Cir. 1977), cert. denied,

435 U.S. 928 (1978), have discussed at

length comity as a general principle, and

what they have said need not be repeated

in full. The doctrine arose in inter-

national law where it concerned relation-

ships between independent sovereigns.

Bank o usta v. Earle, 10 L.E. 274

(1839); Felder, 693 F.2d at 1161; Trantino,

563 F.2d at 193, (Gibbons, J., dissenting).

Comity concerns the recognition that one

sovereign extends to the legislative,

executive and judicial acts f another.

Hilton . Guyot, 159 U.S. 113, 163-64

(1895). As between nations, "[i]t is *

not the comity of the courts, but the comity.

of che nation. . . Bank of Augusta,

gupta st 308. The doctrine applies to

“proper relations between sovereign stat

5 ou

a, 1 3

„

~ ae

‘ ——

=< gay - <P

1 1 2

——

— ee

we oe a

“ne.

ra Se

App.41

rather than between judicial systems."

Felder, 693 F.2d at 554.

Historically, in the 1960's after Fay

v. Noia, federal courts urged states to

create adequate first-tier collateral re-

view if they lacked it, on the basis that

the states were entitled, and often better

able, to have the initial opportunity to

teview their own cases for constitutional

error. The states responded, some by

legislatuve acts, some by decisions. On

the federal side, if collateral relief was

denied in state court it was easier for the

federal court to conduct its second-tier...

review having before it the prior state |

collateral, decision and record. nochn dae

deppened in the 20 wre since 2 c

ee to go through ebe gige tier Of w.

App. 42

Tant ing, it is “perfectly willing to have

[the] case decided in a federal forum now,

for the obvious common sense reason that it

must ultimately be resolved in a federal

forum in any event. 563 F.2d at 101.

The nature of comity between national and

state sovereignties in our federal system,

as applied to the exhaustion doctrine in

two-tier collateral review, necessarily

implies power of the state to waive its

right of initial review. Federal support

of initial review in the state courts is

not primarily to vindicate federal inter-

ests. Trantino, 563 F.2d at 95. It 16

28 designed to protect the state courts’ role

„ enforcement ol federal bcp 2 *

}

;

App.43

particular cases the state may decide that

its role is better performed, and its

judicial proceedings disrupted less, by

foregoing the opportunity of initial re-

view. This is especially true where the

state system already has performed elaborate

initial review for the state petitioner --

as it has for Thompson -- and would be

required to crank up its system again to

examine his newest claims. The state might

wish to invoke the abuse of the writ doc-

trine, but its judicial system would have

to exercise its collateral review jursdic-

tion in order to consider application of

the doctrine. Moreover, findings of abuse

of the writ are themselves difficult to

sustain because of liberality toward pro

se pleaders, changes in 1. and the

instinctive reaction of 2 that a ‘peti-

| tioner ought e ee,

. er * r e

* * 5 > 7 * 4 * * 2 * Ts * ee,” Pe find thon een ae n eee as.

* e

App.44

a state denail of relief based on abuse of

the writ grounds is antithetical to

finality simple because it is not on the

merits; a federal court may find it

erroneous sod, in a renewal of the ping

pong game, hold that the state court must

initially review the merits.

The state, then, must be allowed to

assert that it wishes to forego the

opportunity for initial review in those

instances where initial review operates to

its disadvantage. It is entitled to de-

cide that this best vindicates its interests.

(We discuss in Part IV our conclusion that

the court is not required to accept the

Mz state's tender of waiver.) There is an

element of Big Brotherism for a federal 5

court to say, vith respect to a oe

thet egos state + institutio va!

0 aN 1 :

* 8

App.45

to eschew application of the principle

when it operates to its injury. This

stands comity on its head and promotes

state-federal disharmony. This is not to

: say that the contour and scope of the

comity that er involves are dot

federally defined, but rather that a de-

finition which ineluctably bars state

waiver is wrong.

* Both Felder and Westbrook hold that

Ves v. Lundy does not preclude state 5

"| waiver of exhaustion. Felder, 693 F.2d sa

t 554 (Rose did not Maddress or even c

ae _ template” the issue of state waiver).

_— Meaebrook, 704 F.2det 1493 ("Rose K. ae

jes n0 instruction for cig" 2

. App. 46

giving state cours the opportunity to first ‘yy

Ree, pass upon and correct a constitutional vio- 1

8 lation. The Court stressed the importance Ne

2 of "minimizing friction between our federal a

and state systems of justice” by allowing ¥

the state "an initial opportunity” to act. *

. There is no suggestion that the state's

A interest cannot be vindicated by passing a

up the opportunity when it elects to do so |

| or that the extension of the opportunity *

* is in fact an irrevocable mandate that the 3

*. 8 ay 8 %

state court must act first. ¥

8 fa

tie Our decision is not limited to habeas

5 cases where the death penalty has — 1

App.47

piecemeal litigation by encouraging habeas

petitioners to exhaust all claims in state

4 court and present the federal court with ea

7 7

mises of Rose is that the habeas petitioner Jig

single habeas petition.© One of the pre- 4

desires speedy federal relief on his claim

: and that requiring plenary state court ex- *

1 haustion, as a prerequisite to a federal 4

3 determination, will advance him toward

F _ that end. This premise fits the petitioner

; in confinement under a sentence for years, 2

whose purpose is to gain release from con- —

finement. It does not 3 fit the 4

rae wet ay. Pe ee Oe aE ese

App. 48

prisoner under death sentence whos purpose

may be to stay alive.’ He may desire to

delay a final federal ruling by raising in

succession a series of unexhausted claims.

! The Supreme Court this term, in a some- :

what different context, recognized the 8

possibility that a death row inmate may A

1 to use federal habeas review as a .

vehicle to 2 8 of bis ;

4 for the condemned in a capital case should

* 2 bold — K * 88 in Kn

ae tt to the advantage

their elient. The Court also dis- ü

cussed procedures that may be used to —

minimize potential delays. Because, un- = *

like a term of years, a death 27 bfr can-

not be carried out by the state

a federal a late review de ponbing

8 because “federal habeas [is 5

. by which a defendant is entitl

an execution dork: course a :

admonished federal courts

sentence. te telle, 51 U.S.L. .

F. 5189-5191 149830 ds oti rt v. *

Barnett, 159 U.S. 660, 62 CEOS) eke a

Court stated: "It is natural that counsel 2

nips wd 9

> : 1

N **

1 rn

App. 49

Until the final, ultimate federal determina-

tion his sentence may not be carried out

because state and federal courts may have

to enter stay orders until they can examine

the merits of his claims. See Barefoot

v. Estelle, 51 U.S.L.W. 5189 (1983). Send-

ing such a petitioner back to the state sys-

tem to exhaust a new claim gives him a re-

prieve from finality.” Esch delay, for its

span, is a commutation of a death sentence

* Judge Brown of the Fifth Circuit has apt-

ly described the tension between exhaustion

and finality in habeas cases:

New restrictive rules emerge, nearly

all of which are designed to 8

that the case must have been ly

exhausted in the state tribunals as

e condition for federal court re-

view. Commendable as those lled

technical „ reducing

App .50

to one of the imprisonment.” By waiving

exhaustion the state can seek to move the

case toward the ultimate federal decision.

By accepting or declining the waiver,

see Part III infra, the federal court can .

limit waiver to appropriate cases and

issues. No invasion of state interests

vA oe ig ok vate committee examining the r

federal habeas corpus statute has expressed =i

concern over the delays associated with :

federal habeas review in death cases. 4

Another disconcerting situation to 4

; which the Conference Committee on

3 Habeas Corpus 8 addressed

itself was the delays in executing

State court sentences in capital

cases as s result of habeas corpus

applications seeking review of

State acourt action.

H. Rep. No. 1892, 89th Cong., 2d Sess. 5

(1966).

10 While the district judge in this case

addressing the matter of -inuance

* 9 8

W * 14 N. * 9 > bh ye. Oi

WWW

App. 51 1

7. is involved but rather an acceptance by ;

4 the state that its interests will be suit-

. ably vindicated in the federal proceeding.

% In short, Rose is a tool that protects

state and federal interests. It is not a

trap for both sovereigns.

4 The best known case that views comity 3

4 in our state-federal system differently

than we do is Trantino, which holds that

exhaustion as an instrument of comity *

* serves interests not of state prosecutors *

> but of state courts and therefore may not : 3

be waived by the attorney geseral of New “a

‘ad Jersey. 563 F.2d at 96. Naranjo v.

Ricketts, F. 20 (lotb Cir. 1982) and

> . 2 1

—

;

aT bd ‘ ve 8

NK 8 aie

App.52

1983) (en banc) adopt this same rationale.

See also Sweet v. Culp, 640 F.2d 233, 237

n.5 (9th Cir. 1981); Needel v. Scafati,

412 F.2d 761, 766 (ist Cir. 1969).

With deference, it seems to us that

describing the issue as a choice between

the interest of a state prosecutor and in-

terests of state courts asks the wrong

question. Rather we believe that the

question is more precisely put in two parts:

does exhaustion serve the interests of the

state and its sovereignty or of only state

_ courts and judges? And, whoever the vene-

ficiary of the state's interests, is the

state attorney general authorized to waive

for that beneficiary?

een respect 0 the tset question, jose

e. 2

74 *

„

* 1

eT eee

App. 53

comity limited to courts and judges. 1

Of course, the state courts’ first

opportunity to review is a concept that has

originated with one judicial system, 12 the

federal, and has impacted on another

11 In Rose the Supreme Court did described

the role of exhaustion as “to protect the

state courts’ role in the enforcement of

federal law and present disruption of state

judicial proceedings." 71 L.Ed.2d at 387.

oe 5 1 particular weight to

this language in v Tennessee, Supra

We believe that this reference to pur

t of exhaustion does not represent the

t's considered that in the

context of Sec. 2254 exhaustion comity is

limited to the relationship between t

judicial branches of state and federal

sr pe a eae Sey ee oe

App.54

judicial system, the state's. But the

identity of governmental actors extending

and receiving deference is not the

measure of sovereignty or of comity be-

tween sovereigns. First opportunity to

review is extended to judges in New Jersey

not merely because they ere judges but

because they are judges of the state of New

Jersey. The interests are those of the

state though executed judges. Comity, as

reflected in Sec. 2254, undoubtedly promotes

the interests of state courts, but thie is 4

ee ee ee eee i ee

merely one aspect of comity's broader

: ‘ cn, ee

ae Se

* * a

purpose of maximizing the control that —~

y sovereign state has over ite criminal jus-

. tice apace. — 2

ses

_ &

App.55

State Criminal Procedure and Federal

Postconviction Review, 50 A.V.A. J. 928,

929 (1964).

2 There are many identifiable and important a4

state interests implicated in the interplay |

a of the two-tier collateral relief system |

that reach far beyond the interests of

state courts and judges. In the present

case the attorney general, as Florida's

chief legal officer, is interested in “a

the prompt and affective administration of coe.

the state's criminal laws and in finality ft 2

as a part thereof. The governor has a like, a

interest, particularly in desth penalty

cases where he has a direct, individual

responsibility in the process. The.

a _ tier system of review ottects.be

| funding for prisons. te tow

Fader

App .56 al

in this case is the superintendent of the 4

State Department of Corrections. The 4

attorney general, who must represent the

state in its appellate courts and in federal

courts, must supply resources -- lawyers

and staff support -- in both systems.

The state bears part of the finance ſal burden

of fees to public defenders and appointed

counsel. The citizenry at large have an

interest has not been expressed in any

“speedy collateral review" statutes, the

public of Florida have a great interest in

prompt determination of the validity of the e ig

convictions and sentences of persons who

have undergone trial and have been convict-

ed. Comity requires sensitivity, not i-

difference, to the full spectrum of state . 4 |

interets implicated by federal-state meteor

MRT e ee

A oh tigen csc:

App.57

place to discuss whether this malaise is

justified; the point is that it does not

originate from only state courts and state

judges and is not limited to assertion of

their interests.

Of course, neither public nor govern-

mental desire for prompt finality can di-

minish the principle that criminal ne

tions and sentences secured in violation of

our national Constitution cannot stand.

The federal courts must carry out the re-

sponsibility assigned to them in two-tier

constitutional teview, and vhen conviction

or sentence does violate the Constitution

che court. must-unflinchingly | set it aside.

The problem eddressed 1 thie case is not

Sh N. 1

>. >

To,

App.58

more prompt final decision from the forum

that predictably will be the ultimate forum

on the constitutional issue.

With respect to the second prong of the

rephrased question, relating to the

authority of the attorney general to waive, .

we hold that Florida law empowers the |

attorney general to represent the interests

of the sovereign. See Part III, A supra.

We hold alternatively that even if comity

law we — discussed previously. 14.5 ao:

| | areneither

the state's chief legal officer cannot

speak for them, no one can. Refusing to

permit waiver by the attorney general is

tantamount to a blanket prohibitfon against

waiver of exhaustion, and, in federal ha-

beas cases, converts the flexible concept

of comity into a hard and fast jurisdiction-

al requirement. If exhaustion were truly

jurisdictional, we could not properly dis-

pense with it as we do in cases where

state courts have had the opportunity to

address the merits of petitioner's con-

stitutional claims but have not done so.

Francisco v: Gathright, 419 U.S. 59 (1974);

Houston 2. Estelle, 569 7.24 372 (Sh 2

Cir. 1978); West v. Louisiana, 478 F. 2 3

1026, 1034 (5th Cir. 1973) (long a un- . Py

“justified delay in the perticuler case), a

. Ap. 60

7 general that state temedies ptt ineffective 1

é or state procedures futile without examining

1 and ruling on the substantive correctness ‘

2 of each acknowledgment. See Part 11, B(1) ‘4

Supra. We could not entertain a petition .

N where there has been an intervening change

: in state law since petitioner exhausted. 4

a Roberts v. LaVallee, 389 U.S. 40, 19 LiEd.2d 1

> circumstances" exception to exhaustion, such 25

a as Trantino itself recognizes. 363 F. 2d at a

* 96. “The policies that the exhaustion ; €-

3 1 rule serves are important. . | lbot a court!

: need not make e fetish of éxbaustion." 17

a4 8 Miller & Cooper, rederel Practice 1

„ Procedure Sec. 4264, at 653-34 (1978). 25

i wale * a 7 * 7 * .

n at Laws N . 0 . an * 1

N * HR ae * va) ae Y } 1 * aa ai? * “

ey . * : uo a ed 1 Wen > .

> 1 N NN i 8 ae N

Sy ye g x * 2 n

} ; 8 N

— 1 * W a

ae, RY

ve *

p-. 61

Florida law coalesce in support of our hold-

ings that exhaustion can be waived and '

that the Florida attorney general may valid-

ly make the waiver decision on behalf of

the state.

There is no merit to the argument of

petitioner that the state cannot wiave, or

the district court accept waiver, because

he has an absolute right conferred by Sec.

2254 or the Constitution chat his case be

given both levels of review. He has no

reight to control the operation of the

comity-rooted systen.

111. Discretion of the district court 2

to accept the waiver.

more issues or may reject 10.10

The power

of the state to decide that exhaustion dis-

serves its interests is not an unqualified”

right to force the federal forum to liti-~ °

gate all issues without state review.

Comity is not a one way street. “The

notion of comity which underlies the ex-

baust ion doctrine must be understood not as

a capitulation of federal power to state

interest; rather, comity involves a deli-

cate compromise of both state and federal

concerns." Carter v. Estelle, 677 F.2d 427,

442 (Sth Cir. 1982). Strong federal

interests may exist that, balanced against

those of the state in the a eas 7

* westbeoc ¢ 443 not te. this eons

a . i

App .63

will permit the district court in ite

diecretion to decline a waiver and require

state exbavetion. An unconditional right

of waiver would increase the burden on

the federal system. In e particuler case,

fact finding on the iseves with respect to

which waiver ie asserted may be done best

in the state court. The complete factual

record will aid the federel court in its

review. Rose v. Lundy, 71 L.Bd.2d at 388.

When state courte initially address re-

quests for collateral relief some cases will

never reach the federal courte, for the

state courte will recognize conetitutional

violations and grant relief. Other cases

will be abandoned or mooted. Moreover,

while Sec. 2254 reflects deference to state,

inding, the exhaustion requirement 1 44

fact f

App .64

increases state courte’ familiarity with

and hospitality to federal constitutional

Claims. Id.

Federal courte too have an interest in

prompt and effective finality. But the

court must have discretion to see whether

waiver will further that aim and to balance

it with other factors. The court may con-

sider whether extensive or minimal fact

finding ie involved or only questions of

law on an already adequate record and, if

fact finding ie involved, whether it may

be done as part of a federal hearing re-

quired on other fseves. The court may f

consider how long since petitioner's se it

viction and setence were imposed, how long

* state éithavecion will require, sand che „ 1 7

‘comparative ones of thes

App .65

tate policies at stake in the case or

threshold issues of undecided estate law.

In Sweet vy. Culp, 640 F.2d 233, 237 (9th

Cir. 19861), the attorney general acknow-

ledged in district court that exhaustion

was futile and the district court accepted

thie ae a waiver. On appeal the Ninth

Cireuic held that the attorney general's

concession wae not binding on the court

and that the district court should have

required firet-tier state court review of

the constitutionality of the stete criminal

atatute whose validity wae in question.

We agree with thie approach.

The federal district court, if e d

clines to accept the waiver, would wets ees

ithe state seems to believe, serene’ pee

dourte to adjudicate the 0

weng ** ws!

* N

—

App . 66

and the decision would not displace state

rules regarding summary dismissals or

successive write.

IV. Conclusion

We turn to the disposition of this case.

We hold that the district court had

authority to grant the motion for cont inuance

pending exhauetion of Thompson's new. claims

in state court. We hold that in a habeas

case the attorney general of Florida msy.

explicitly waive exhavetion of state

remedies on behalf of the estate sovereign

and the state courte. We hold, thet che

district court, in ite discretion, may

Shy or reject the waiver.

ye to he alstrlet court's —

MET |

4 awe

a 2 8

* we . N

a 5

3 dene e 4 8 Pr

App. 67

A subsequent order staying the case pend-

ing appeal, however, indicates that the dis-

trict court was aware of the state's waiver

when the continuance order was entered

but, without discussion, did not accept it.

See note 2 supra. We are unable to determine

whether the district court's rejection of

waiver was proper, because we do not know

whether it rejected the waiver because it

decided that the state, through the attorney 7

general, could not waive exhaustion or be-

cause it thought exhaustion would 1d

federal review. While we imply no view

on whether the court should accept or re-

ject the tendered waiver, it is appropriate

that we cacate the decision and order of the -

district court so that it can again consider, =

under the principles we have set out, wheth-

Va .

er to accept or reject the waiver. l ee :

a Pe

VACATED and n. for proceedings

< tv, ö

IN THE UNITED STATES COURT OF APPEALS

App. 68 a

FOR THE ELEVENTH CIRCUIT 2

NO... 82-6052 =

WILLIAM LEE THOMPSON, 8

Petit ioner-Appel lee. ;

versus 4

LOUIE L. WAINWRIGHT, 4

Respondent-Appellant. — a

— ——————— —— ————

Appeal from the United States District

Court for the Southern District ad

of Florida at Miami. 7

— cesacccescose

f n

(Opinion 6, 1983, 11

W 1 7. 24 ie See

n *

' (October 11, 1983),

. By 8

App. 69

) The Petition for Rehearing is

DENIED and no member of this panel nor

Judge in regular active service on the

Court having requested that the Court be

polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 26), the Suggestion

for Rehearing En Banc is DENIED.

aS * 1 E ee

App. 70

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 82-6052

WILLIAM LEE THOMPSON,

Petitioner-Appellee.

versus

LOUIE L. WAINWRIGHT,

Respondent -Appellant.

Appeal from the United States District

Court for Southern District of

Florida at weet Palm Beach

ORDER:

(x) The motion of appellant for (x) stay

( ) recall and stay of the issuance of the

mandate pending petition for writ of

certiorari is DENIED.

App.71

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 81-391-CIV-JE

5 THOMAS KNIGHT, )

g Petitioner, )

3 vs. ) ORDER

4 LOUIE L. WAINWRIGHT, )

5 etc., et al., 7

4 Respondents. | |

1 Pursuant to Section 2254 of the Title

3 28 of the United States Code, Thomas Otis

Knight has filed a Petition for Writ of

Habeas Corpus in which he raises several

Federal Constitutional questions. Knight ae

is on death row pursuant to 8 State court ae

judgment, and the Governor of Florida hes

A issued a death warrant directing Knight's N

state remedies as to all grounds save one

App.72

The same body of law that compels this

Court to entertain Knight's Petition, and

concomitantly stay his execution, also

directs the Court to require the exhaustion

of remedies available to Knight in

Florida's courts. 28 U.S.C. §2254(b). +

That section provides:

An application for a writ

of habeas corpus on behalf

of a person in custody

pursuant to the judgment |

of a State court shell not

be granted unless it appears

that the applicant has ex- 2

hausted the remedies avail- a

able in the courts of the ee

state..." (emphasis added).

‘Petitioner Knight offers many grounds in

support of his assertion that he is in :

custody in violation of the Federal wy

Constitution. Both Petitioner and Respondent —

seem to agree that Knight has exhausted hie a

— 2 2

a * N.

App.73

the asserted ineffective assistance of

appointed counsel at the trial level.

Although Knight has attempted to present

this issue to the State Courts for their

decision, the e of the effective-

ness of Knight's trial counsel has never

been considered on the merits by Florida's

Courts. There is no disagreement between

the parites on this point.

However, the Assistant Attorney General

represent ing Respondent has insistently

2 urged this Court to entertain the merits

of Knight's Petition “right now.” He makes

clear that the state does not raise the

issue of the lack of exhaustion, but he al-

so careful to assert that the state is not

*waiving’ the issue.

App.74

Section 2254, which codified existing

case law on the exhaustion doctrine, is

rooted in consideration of comity and

federalism. The exhaustion doctrine has

been fashioned over the years by a policy

that counsels one court to defer action

on causes properly within its jurisdiction

until the courts of another sovereignty

with concurrent powers have had an

opportunity to pass upon the matter.

The United States Fifth Circuit Court

of Appeals, which undoubtedly will review

(Footnote T continued)

*. Grimes; 355 F.2d 92 (5th Cir. 1966)

mied, 384 U.S. 988 (1966), 1565}

65 F.2d 590 92 8

2d 1188

19 . and :

513 ae pe 0

es is of

> aon

App.75

* this Court's determination in this case

„ regardless of the outcome here, is pro-

perly dedicated to the exhaustion doctrine.

Judge Ainsworth, writing for th. panel in

Clarke v. Grimes, 374 F.2d 550 (5th Cir.

1967), has put it thus:

.. in the exercise of comity

and good federalism as well

as proper federal- state

—

question as presented in

és this case. It would be un-

a | seemly in our dual system

of government under these

| circumstances for a federal

* court to upset a state court

Le conviction without an opportu-

; nity to the state courts to ~*

. correct a constitutional vio-

7 lation. |

This language from Clarke is particulary

appropriate here.

Following the procedure prescribed a

the United States Fifth Chegute: coure ee

* u

ton

”

1 4

a” 3 hel

e+ *

App.76

Appeals in Clarke, supra, and uniformly

followed in other cases throughout the

Fifth Circuit, this Court retains

jurisdiction for the purpose of continuing

the stay of execution previously-entered,

provided Petitioner Knight immediately

files and diligently prosecutes to a

* prompt conclusion a petition in the Florida

state courts which raises those matters

included in his Petition before this Court

which have not been previously considered

‘ and determined in the State Courts.

IT IS SO ORDERED at Miami, Southern

District of Florida on this 5th day of

March, 1981.

1 cc: Roy E. Black, Jy 3

8 5 Jesse McCrary, N N. * a. —

ae: — .

App.77

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 82-365-CIV-JCP 0

WILLIAM LEE THOMPSON,

pe Plaintiff,

vs.

)

LOUIE L. WAINWRIGHT, etc., )

Respondent. )

)

‘

ORDER “3

— 1

This cause came before the Court upon

review of the petitioner's memorandum of

law in opposition to waiver of exhaustion, .

docket no. 47, and the respondent

response, docket no. 49.

: The issue before this Court is whether

to accept or Teject the state's waiver of

= the exhaustion bee ene of 26 2 3

* ‘fT

App.78

§§2254. On November 23, 1983, this Court

requested that the parties brief this

issue. Upon review of the materials

submitted by the parites and for the

reasons set forth below, this Court con-

cludes that the state's waiver should be

accepted and the petitioner's motion for

continuance should be denied.

The decision of whether or not to accept

the state's waiver rests in this Court's

sound discretion. Thompson v. Wainwright, 3

714 F.2d 1495, 1508 (llth cir. 1983). The

appellate court's elaborate discussion of 4

—

comity and the federal and state interests K

at stake in this case provides the frame- 1

work for analyzing the factors affecting BY

the exercise of that discretion. Comity 3

involves "a delicate compromise Of don <2

state and federal concerns.” Id. at 1509,

App.79 2

quoting Carter X. Estelle, 677 F.2d 427,

442 (Sth Cir. 1982). No single factor

discussed is determinative. The notion

of comity entails the process of balancing.

Four factors figuring into this process

are identified and discussed below, in an

oii

endeavor to set forth the grounds upon

which this Court has exercised its discre-

tion. :

First, the state's decision that waiver

will best further its interests is one-

factor to be considered. The State

5 Attorney General has the authority to re-

* *

„ .

present the interests of state courts and :

judges. Id. at 1500-1501. "Exhaustion ot

is intended to give the state the . ;

| _ Qpportunity for initial review." Id. at 1504. a

+ (Emphasis in the original). Thus, che i

As 8

13 7

* . r

;

App. 80

state's considered judgment in deciding

to forego this opportunity is entitled

to some deference. Moreover, "[t]here

are many identifiable and important state

interests implicated in the interplay of

the two-tier collateral relief ssytems

that reach far beyond the interests of

state courts and judges." Id. at 1507.

These interests include the Attorney

General's interest in the effective

administration of the state's criminal 0

laws and in the conservation of scarce

Tesources -- lawyers and staff support

in the representation of the state in both :

state and federal proceedings, the Governor's, . |

interest in the prompt execution of death

watrants and the Florida citizen's interest

in prompt and definite finality. Id.

“Comity requires sensitivity, not indiffer-

ence, to the full spectrum of state in- 2

terests implicated by federal-state review."

App.81

Id. The state's waiver of the exhaustion

requirement is an assertion that all of

these interests are best vindicated by

the prompt resolution of petitioner's

claims in the federal forum. That

assertion is entitled to some weight in

the balance of interests underlying the

notion of comity.

Second, the nature and extent of the |

fact-finding required for proper resolu-

tion of petitioner's unexhausted claims

does not dictate reference to state courts.

Petitioner has stated two unexhausted

claims: 1) his guilty pleas was involun-

tary and unintelligent as it was solely

the product of coercion by the co-defendant

Surace and 2) his counsel failed to ren-

der effective assistance of counsel.

Published decisions reveal that the state

App. 82

court record in this case includes the

entry of petitioner's guilty plea,

Thompson v. State, 389 So.2d 197 (Fla.

1980), the petitioner's testimony on behalf

of the co-defendant Surace, Surace v.

State, 378 So.2d 895 (Fla. 3d DCA 1980)

and petitioner's attempt to recant his

testimony at Surace s trial, Thompson x.

State, 410 So.2d 500 (Fla. 1982). There

exists, then, a record of many of the

aspects of petitioner's claius. There are —

other aspects of his claims that will

require an evidentiary hearing, but this

type of hearing is common in the federal ee

courts. See, e.g., Sullivan v. Wainwright, 5

695 F. 2d 1306 (Iith Cir. 1983) (Magistrate |

conducted three day hearings on petitioner's 2

claim of ineffective assistance of counsel).

Owens L. Wainwright, 696 F.2d 1111 (11th _ 4

Cir. 1983) 881 conducted hearing on *

„ A 10 e n

* : ‘ , . eS a

;

App. 83

intelligent plea and ineffective

assistance of counsel). The state

estimates that two days will be required

for the hearing on petitioner's unex-

hausted claims. Petitioner intends to lag

offer his own testimony and that of his

prior counsel, his co-defendant's counsel.

He also intends to introduce evidence of

psychiatric examiniations! and the back-

ne ,

ground of the victim. This Court con-

cludes that mininal fact-finding will be

required to supplement the nearly-complete

record and that such fact-finding may be 5

done as part of a federal hearing required

on the other issues petitioner has raised 8

Third, this Court is not persuaded that

petitioner's claims involve fundamental

App. 84

state polices or threshold issues of un-

decided state law.” For example, these

claims do not reaise the issue of the con-

stitutional validity of a state statute,

as in Sweet v. Culp, 640 F.2d 233, 237

(9th Cir. 1981).

When faced with a claim that a guilty

plea was entered involuntarily, Florida

courts have consistently referred to

federal law, specifically, Boykin x.

Alabama, 395 U.S. 238 (1969) and it progeny.

See, e.g., Alder v. State, 382 So.2d 1298,

1300 (Fla. 3d DCA 1980). Holmes v. State,

(Footnote I continued)

So.2d at 199. Presumably, there is a

record of their findings and conclusions

which could be reviewd by this Court.

2 The state's argument on this considera-

tion is considerably misdirected. Rather

than arguing what state policies or important

legal questions would confront the state

courts upon review of petitioner's claims,

the state argued that important state poli-

App.85

374 So.2d 944, 947 (Fla. 1979). Further-

more, the issue itself is largely factual

in nature. Owens v. Wainwright, supra,

698 F.2d at 1112-1113. It is highly un-

likely that reference of this claim to

the state courts would result in any signi-

ficant evolution of state law.

So too, the Florida courts would look

to federal law on the claim of ineffective

assistance of counsel. See e.g., Adams v.

State, 380 So.2d 423 (Fla. 1980) (reference

to federal law in resolving claim of in-

effectiveness of counsel). The standards

of competence demanded by the federal

constituttion and the burden of proof re-

quired to establish ineffectiveness have

been set forth clearly in this circuit.

Washington v. Strickland, 693 F.2d 1243

Footnote 2 continued)

cies were implicated in its pending writ

before the Supreme Court.

App. 86

(5th Cir. Unit B. 1981) (en banc), cert.

granted, __U.S.__, 103 8. ct. 2451 (1983) .

Owens v. Wainwright, supra, 698 F.2d at 1113-

1114. King v. Strickland, 714 F.2d 1481,

1458-1486 (llth Cir. 1983).

There is no reason to believe that the

state and federal courts would reach

different conclusions on petitioner's

claims when both would follow the same

lines of federal decision. And Florida's

familiarity with and hospitality to these

federal consticutional claims would not be

significantly increased by the requirement

of exhaustion in this case.

* That the state is seeking reversal of

Washington before the Supreme Court makes

no erence in the balance of interests

underlying comity. A eme Court decision

reversing would require recon-

sideration court system first re-

goiving petitioner's claim, be it state or

federal.

App.87

Fourth, the amount of delay incurred

in the state and federal proceedings in

this case has been lengthy. The offense

was committed in March of 1976. Petition-

er was sentenced in September of 1978

and the Governor signed the death warrant

in February of 1982. The case was before

this Court from February of 1982 until

the appellate court asserted jurisdiction

in October of 1982. The matter was on

appeal from October of 1982 until the

Mandate was received in this Court on

November 9, 1983. Another appeal to the

Eleventh Circuit is likely. Exhaustion

will create even more delay, thereby

thwarting the interests of promptness

shared by the state and federal systems.

Compared to the other factors above, this

factor alone should be give less weight.

Reasoned judicial determination should not

be compromised solely in the interests of

App. 88

speed. Coupled with the other factors,

however, consideration of this factor

leads to the conclusion that the additional

time incurred by continuing this matter

for exhaustion would not be well spent.

11.

In view of the conclusion reached by

this Court, the appropriate procedure to

follow is to set this matter for an eviden-

tiary hearing to consider all of petition-

er's claims. In an effort to narrow the

issues for the hearing, this Court will

issue its pre-trial order and require

counsel to follow the procedures set forth

herein. Additionally, counsel should pro-

vide the Court with relevant portions of

the state records.

Accordingly, it is

App.89

ORDERED and ADJUDGED that

1. The state's waiver of the exhaustion

requirement of 28 U.S.C. §2254 is accepted.

2. The petitioner's motion for con-

tinuance is denied.

DONE AND ORDERED at West Palm Beach,

Flroida this 10th day of February, 1984.

UNITED STATES DISTRICT

JUDGE

cc: Calvin Fox, Esq.

Michael Van Zampft, Esq.

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