Petitioners Brief — Granberry v. Greer

{7

No. 85-6790." NOV 18 yo96

— )

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1986

WaLpo E. GRANBERRY,

Petitioner,

V.

JIM GREER, Warden,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR THE PETITIONER

HowarD B. EISENBERG

(Appointed by this Court)

104 Lesar Law Building

Southern Illinois University

Carbondale, Illinois 62901

(618) 536-4423

Attorney for Petitioner

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

> =

2 {|

l

QUESTIONS PRESENTED

1. Whether, in a habeas corpus proceedings brought

by astate prisoner pursuant to 28 U.S.C. $ 2254, the state

forfeits the defense of non-exhaustion of state court

remedies by failing to raise that issue in the district court.

2. Whether Petitioner exhausted his state court

remedies by presenting the issue raised in his federal

petition to the state’s highest court in an original man-

damus action and, in any event, whether further recourse

to state courts would be futile under the facts of this case.

ij

TABLE OF CONTENTS

Page

ed. cc cec cee eececoccccess Vv

EE DE Se l

ES l

STATUTORY AND CONSTITUTIONAL PROVISIONS

Tene nT ee ceesecccecs 1-3

Speermneeeney OW THEE CAGE. .. 2. ccc ccc cc ccc ccccce: 3-5

Sumeeniee OO BMGUMENT, .... 2... ccccccccccccccccccs 5-7

Nee ee ee TT Tn se eee eceeeececve: 7-30

I. THe State ForFeITeED THE DEFENSE OF Non-

EXHAUSTION OF STATE CourT REMEDIES By

FatLinc To ASSERT SucH CLAIM IN THE Dits-

ee ce ceeccocccee 7-26

A. The Exhaustion Requirement Of Section 2254

Is A Rule Of Comity And Is Not A Jurisdic-

i ee a bawenedecvesscces 7-10

B. The Rule Of Comity Implicates The Entire

State-Federal Relationship, Not Merely The

Concurrent Jurisdictions Of The Courts ..... 10-20

1. The circuits are divided on the question of

whether comity looks only to the rela-

tionship between courts or relationship

between sovereigns ................5. 10-14

2. There is no reasoned basis for limiting

comity to solely an issue of relationships

CC EE eee 14-16

3. Allowing the state to waive exhaustion is

consistent with decisions of this Court in

analogous areas of the law ............ 16-17

4. Prohibiting the Illinois Attorney General

from waiving exhaustion of state court

remedies fails to recognize his authority

i ek ieceeseeeecee 17-18

5. Nothing in this Court’s decision in Rose v.

Lundy precludes state waiver of the

exhaustion requirement .............. 18-20

C. Respondent Has Forfeited Any Exhaustion

Defense By Failing To Assert Such Claim In

The District Court ............00.. soe cs es

1. Respondent should be bound by his failure

to raise e:.haustion in the district court .20-23

Table of Contents Continued

Page

2. Respondent conceded exhaustion of state

court remedies by filing a motion to dis-

miss under Rule 12(b)(6), F.R.C.P. .... .23-24

3. Requiring a state attorney general to raise

the issue of non-exhaustion of state

remedies in the district court :s most con-

sistent with decisions of this Court holding

criminal defendants bound by the pro-

cedural defaults of their attorneys ..... 25-26

II. PetTiIrloneER Has EXHAUSTED His State Court

REMEDIES AND, IN ANY EVENT, FURTHER

Recourse To THE StaTe Courts OF ILLINoIS

Wou Lp BE FuTILe IN THIS CASE ............. 26-30

A. Petitioner Has Exhausted His State Court

eens 26-29

B. Further Recourse To The State Courts Of IIli-

nois Would Be Futile ..................... 29-30

en ne pweeecescesccceceecsace 31

iv

TABLE OF AUTHORITIES

DECISIONS OF THE UNITED STATES SUPREME Court: Page

Blackledge v. Allison, 431 U.S. 63 (1977)............ 23

Bowen v. Johnston, 306 U.S. 19 (1939).............05. 6,9

Browder v. Director, Dept. of Corrections of Illinois, 434

Es 55.555: 65 54 bua E UR beh as ceneec cs 24

Clark v. Barnard, 108 U.S. 436 (1883)................ 16

Darr v. Burford, 339 U.S. 200 (1950)................ 9,19

Dorszynski v. United States, 418 U.S. 424 (1974) ...... 26

Duckworth v. Serrano, 454 U.S. 1 (1981)............ 10, 29

Engle v. Isaac, 456 U.S. 107 (1982) .................. 25

Fay v. Noia, 372 U.S. 391 (1963)............cc cece eee 10

Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945) 16

Francis v. Henderson, 425 U.S. 536 (1976)............ 25

Frishie v. Collins, 342 U.S. 519 (1952)................ 9

Harris v. Nelson, 394 U.S. 286 (1969) ................ 23

Ex parte Hawk, 321 U.S. 114 (1944) ................. 9

Hilton v. Guyot, 159 U.S. 113 (1895) ................. 14

Irvine v. California, 347 U.S. 128 (1954).............. 26

Jenkins v. McKeithen, 395 U.S. 411 (1969)............ 24

Johnson v. Zerbst, 304 U.S. 458 (1938) ............... 21

Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1868)....... s

Mathews v. Diaz, 426 U.S. 67 (1976) ................. 16

Missouri v. Fiske, 290 U.S. 18 (1983) ................ 16

Murray v. Carrier, 106 S.Ct. 2639 (1986) ............. 25

Ohio Bureau of Employment Services v. Hodory, 431

Ft A ee ee re 6, 16

Panhandle E. Pipe Line Co. v. Federal Power Comm’n.,

5 Fe BRR ep rrr ree 17

Parden v. Terminal R. Co., 377 U.S. 184 (1964) ....... 16

Picard v. Conner, 404 U.S. 270 (1971) ................ 28

Pitchees v. Davis, 421 U.S. 482 (1975)................ 23

Preiser v. Rodriguez, 411 U.S. 475 (1973)............. 15

Rose v. Lundy, 455 U.S. 509 (1982)......... 4, 6, 10, 12, 18

Ex parte Royall, 117 U.S. 241 (1886)............ 6, 8-9, 10

Scheuer v. Rhodes, 416 U.S. 232 (1974)............... 24

Smith v. Digmon, 434 U.S. 332 (1978)............605. 28

Smith v. Murray, 106 S.Ct. 2661 (1986). ............. 7, 25

Strickland v. Washington, 466 U.S. 668 (1984)....... 10, 19

}

v

Table of Authorities Continued

Page

United States v. Cronic, 466 U.S. 648 (1984) .......... 26

United States ex rel. Kennedy v. Tyler, 269 U.S.13(1925) 9

Younger v. Harris, 401 U.S. 37 (1971)............ 6, 15, 16

Wainwright v. Sykes, 433 U.S. 72 (1977). ........... 6-7, 25

Weinberger v. Salfi, 422 U.S. 749 (1975) ...........4.. 16

Zipes v. Trans World Airlines, 455 U.S. 385 (1982) .... 8

DECISIONS OF OTHER COURTS:

Allen v. Perini, 424 F.2d 134 (6th Cir. 1970), cert. den., 400

Ce ekeeee hues 29

Batchelor v. Cupp, 693 F.2d 859 (9th Cir. 1982) cert.

dented. 468 U.S. 1212 (10GB) ... 0. ccc ccc cence. 12

Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982), cert. den..,

nn ec ediae si 29

Bowen v. Tennessee, 698 F.2d 241 (6th Cir. 1983)....... 12

Brand v. Lewis, 784 F.2d 1515 (11th Cir. 1986) ........ 29

Burns v. Estelle, 695 F.2d 847 (5th Cir. 1983).......... 19

Campbell v. Crist, 647 F.2d 956 (9th Cir. 1981) ........ 21

Castro v. Klinger, 373 F.2d 847 (9th Cir. 1967)......... 29

Colon v. Fogg, 603 F.2d 403 (2nd Cir. 1979)............ 14

Davis v. Campbell, 608 F.2d 317 (8th Cir. 1979)...... 21, 22

Dougherty County School System v. Bell, 694 F.2d 78 (Sth

Ne add hé ROKR 17

Felder v. Estelle, 693 F.2d 549 (5th Cir. 1982)...... 13, 15-16

Gayle v. LeFevre, 613 F.2d 21 (2nd Cir. 1980)........ 14, 21

Goins v. Allwood, 391 F.2d 692 (5th Cir. 1968)......... 21

Granberry v. Mizell, 780 F.2d 14 (7th Cir. 1985), cert.

—_ sub. nom., Granberry v. Greer, 107 S.Ct. 62

SE ktiddudats CeeGeinaeubeasieseadadecwenns l

Harris v. Irving, 90 Il. App.3d 56, 412 N.E.2d 976 (Sth

Dist. 1980), leave to appeal denied, 82 IIl.2d 584

RRR SSSI IS trap et Bases ee Ry ge aN 27

Heirens v. Mizell, 729 F.2d 449 (7th Cir. 1984), cert. den..,

Pe I ck nedusene-coeen 4, 11, 22, 29

Hillery v. Pulley, 553 F.Supp. 1189 (E.D. Cal. 1982)... 24

Hopkins v. Jarvis, 648 F.2d 981 (5th Cir. 1981) ........ 21

Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir. 1971) .... 18

vi

Table of Authorities Continued

Page

Kuntzelman v. Black, 774 F.2d 291 (8th Cir. 1985), cert.

GUM. TED GG, HOPG CII oc ci sescecccccccncces 13

Mattes v. Gagnon, 700 F.2d 1096 (7th Cir. 1983) ....... 1]

McCarthy v. Manson, 714 F.2d 234 (2nd Cir. 1983)..... 14

McGee v. Estelle, 704 F.2d 764 (5th Cir. 1983), 722 F.2d

1206 (5th Cir. 1984)(en banc)............ 12, 13, 18, 19

Messelt v. Alabama, 595 F.2d 247 (5th Cir. 1979) ...... 21

Mitchell v. United States, 229 Ct. Cl. 1, 664 F.2d 265 (Ct.

Cl. 1981), aff'd. 463 U.S. 206 (1983) ..........0... 17

Mosley v. Moran, 798 F.2d 182 (7th Cir. 1986)......... 11

Naranjo v. Ricketts, 696 F.2d 83 (10th Cir. 1982) ...... 12

Needel v. Scafati, 412 F.2d 761 (1st Cir. 1979), cert. den..,

3 & FRR rel nee 12

Pennington v. Spears, 779 F.2d 1505 (11th Cir. 1986)... 20

People v. Granberry, 45 Ill.2d 11, 256 N.E.2d 830(1970) 3

People v. Foote, 104 Ill. App.3d 581, 432 N.E.2d 1254 (1st

_"% 2tpepE eR 27

People ex rel. Abner v. Kinney, 30 Ill.2d 201, 195 N.E.2d

ee Eo ck inh SaRedeeedeubbenineseveedacaes Ot 26-27

People ex rel. Granb v. Illinois Prison Review Board,

No. 7145 (Ill. April 13, 1988) ................008. 27

People ex rel. Long v Irving, No. 7023 (Ill. Oct. 30,1981) 27

Purnell v. Missouri Dept. of Corrections, 753 F.2d 703

I, CE ae a 13

Ross v. Craven, 478 F.2¢ 240 (9th Cir. 1973)........... 29

Shaw v. Boney, 695 F.2d 528 (11th Cir. 1983) .......... 21

Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982), cert. den.,

460 U. "g Ne ee oat hac eae 12, 19

Strader v. Allsbrook, 656 F.2d 67 (4th Cir. 1981)....... 21

Thompson v. Wainwright, 714 F.2d 1495 (11th Cir. 1983),

cert. den., 466 U . 962 Ee 12, 13, 19

Truitt v. Jones, 614 F.Supp. 1342 (S.D. Ga. 1985), affd.,

791 F.2d 940 (11th Ce a g0e egos se 20), 21

United States ex rel. Buckhana v. Lane, 787 F.2d 230 (7th

Cee uuhanekaleece 29

United States ex rel. Graham v. Mancusi, 457 F.2d 463

eh denibeeeee 21

United States ex rel. Johnson v. McGuinnis, 734 F.2d

RSE Se eae 28

vii

Table of Authorities Continued

Page

United States ex rel. Lockett v. Illinois Parole and Par-

don Bd., 600 F.2d 116 (7th Cir. 1979) ............. ll

United States Russo v. Attorney General of Illinois, 780

F.2d 712 (7th Cir. 1986), cert. den., 106 S.Ct. 2922

a ee let i ke ee ee ea ds 11

United States ex rel. Sostre v. Festa, 513 F.2d 1313 (2nd

Cir. 1975), cert. den., 423 U.S. 841 (1975) ......... 14

United States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3rd

Cir. 1977), cert. den., 485 U.S. 928 (1978)........ 11, 14

Welsh v. Mizell, 668 F.2d 328 (7th Cir. 1982), cert. den. 459

3 f 5 FARE rs reer rr 7, 22, 29

Williams v. Wyrick, 763 F.2d 368 (8th Cir. 1985)....... )

UNITED STATES CODE:

Title 28

1 ge oS ins dae a ee eee whee l

Tn et al we da ee 7-8

ns ites cientexshedeveseven passim

ee i eee ee 6, 8, 11, 15, 26

Title 42

ee Lap veneekeseeden ae

FEDERAL RULES OF CIVIL PROCEDURE:

ee te eS bh ohne eee 5, 6, 23

Ces SE Coin. ada eeeues wren 24

Rr SP ee i eeaeeaeetin 23, 24

RN otro es er tod aaa 23, 24

RuLeEsS GOVERNING 28 U.S.C. § 2254 PROCEEDINGs:

(eee Ake, Soar ety a ag kad ey eng ae one 20, 24

UNITED STATES STATUTES AT LARGE:

Ch. 646, § 2254, 62 Stats. 869 (1948).............. 9

Pub. L. 94-426, 90 Stats. 1334 (1976).............. 23

CONSTITUTION OF ILLINOIS 1970:

i ed ee a ieeaeeee 17

Table of Authorities Continued

ILLINoIs REVISED StaTUTES (1985): Page

ee a ie oot 17

OTHER AUTHORITIES:

Brief for Respondents, Preiser v. Rodriguez, 411 U.S. 475

NAM a Sain ie ios ee ies 15

H.R. Rep. No. 308, 80th Cong. Ist Session, A180 (1947) 9

7 Moore’s Federal Practice, 81.04{4]................. 23

Note, State Waiver of the Exhaustion Requirement in

Habeas Corpus Cases, 52 Geo. Wash. L. Rev. 419

acs idae Cenednddeneda cbeclcdds v4 x 22

Note, State Waiver and Forfeiture of the Exhaustion

Ty gry: in Habeas Corpus Actions, 50 U.Chi.

eS Ld kucutadeddinactensonekac 14, 22

Rubin, Towards a General Theory of Waiver, 28 U.C.L.A.

Sk ___ ERAS aie peti ena ia nian 21

Westen, Awa —_ Waiver: A Rationale for the For-

feiture of Constitutional Rights in Criminal Pro-

cedure, 75 Mich. L. Rev. 1214 (1977) ............. 21

17 Wright and Miller, Federal Practice and Procedure,

ee Se 15

Yackle, Postconviction Remedies, (1981).............. 22

Yackle, The Exhaustion Doctrine in Federal Habeas Cor-

pus: An Argument for a Return to First Principles,

44 Ohio St. L. J. 398 (1988). ..................... 4

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit (J. A. 24-27) is reported as Granberry

v. Mizell, 780 F.2d 14 (7th Cir. 1985). The order of the

Court of Appeals denying the Petition for Rehearing and

Suggestion for Rehearing en Banc (J.A. 28) and the order

of the district court (J.A. 21) are not reported.

JURISDICTION

The judgment of the Court of Appeals (J.A. 23) was

entered on December 26, 1985. The Petition for Rehear-

ing and Suggestion for Rehearing en Banc was denied on

February 28, 1986 (J.A. 28). The Petition for a Writ of

Certiorari was filed on April 28, 1986 and was granted on

October 6, 1986, 107 S.Ct. 62 (J.A. 29). This Court's juris-

diction is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED

Title 28, United States Code

Section 2241. Power to grant writ.

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdictions. The order of a circuit judge shall be

entered in the records of the district court of the

district wherein the restraint complained of is had.

(ec) The writ of habeas corpus shall not extend toa

prisoner unless—

(3) He is in custody in violation of the Constitu-

tion or Laws or treaties of the United States;

2

Section 2254. State Custody; remedies in

Federal Court.

(a) The Supreme Court, a Justice thereof, a cir-

cuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a

sat in custody pursuant to the judgment of a

tate court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the

United States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judg-

ment of a State court shall not be granted unless it

appears that the applicant has exhausted the

remedies available in the courts of the States, or that

there is either an absence of available State correc-

tive process or the existence of circumstances ren-

dering such process ineffective to protect the rights

of the prisoners.

(c) An applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State, within the meaning of this section, if he has the

right under the law of the State to raise, by any

available procedure, the question presented.

Constitution of Illinois 1970

Article V, Section 15. Attorney General-Duties

The Attorney General shall be the legal officer of the

State, and shall have the duties and powers that may

be prescribed by law.

‘linois Revised Statutes (1985)

Chapter 14, Paragraph 4

The duties of the attorney general shall be—

3

Third—To defend all actions and proceedings

against any state officer, in his official capacity, in any

of the courts of this state or the United States.

STATEMENT OF THE CASE

Waldo Granberry (hereinafter referred to as “Peti-

tioner”) was convicted in the circuit court of Cook County,

Illinois on June 23, 1960 of murder and other offenses,

People v. Granberry, 45 Il.2d 11, 256 N.E.2d 830 (1970).

He remains confined at the minimum security Vienna

Correctional Center in southern Illinois serving these

sentences. Petitioner has filed several actions contesting

the fact that he has been repeatedly denied parole. Specif-

ically, he asserts that the application of statutory parole

criteria to his case which were adopted subsequent to the

offenses is an ex post facto law. In 1981 he petitioned the

Illinois Supreme Court to commence an original action for

mandamus, asserting that the parole authority imrrop-

erly applied the new parole criteria to his case. [his

petition was denied “without prejudice to proceeding in

any appropriate circuit court” (J.A. 10), the circuit court

being the court of general jurisdiction in Ulinois. In 1983

Petitioner commenced a second mandamus action in the

Illinois Supreme Court asserting that he was denied his

right to due process of law under the United States Con-

stitution because the Illinois parole authorities applied

parole criteria to his case which were adopted by the

Illinois General Assembly subsequent to his conviction.

Petitioner asserted that the application of these parole

release criteria to his case operated as an ex post facto law.

On April 13, 1983 the Illinois court issued the following

decision (J.A. 9):

The portion of the motion by petitioner for leave to

file a petition for writ of mandamus and for appoint-

4

ment of counsel is denied. The part of the motion for

leave to sue as a poor person is allowed.

On August 10, 1983 Petitioner commenced this action

in the United States District Court for the Southern

District of Illinois seeking a writ of habeas corpus pur-

suant to 28 U.S.C. §2254. He again asserted that the

application to his case of parole criteria adopted after the

offense and his conviction was an ex post facto law. The

district court directed the Illinois Attorney General to

respond to Granberry’s petition (J.A. 11). On August 31,

1983 the Illinois Attorney General filed a Motion to Dis-

miss the petition for failure to state a claim upon which

relief could be granted. The Motion (J.A. 12) and support-

ing brief (J.A. 13-17) attacked the merits of the petition.

No issue concerning exhaustion of state court remedies

was raised ia the district court by Respondent. On April

10, 1984 the district court, Hon. James L. Foreman, Chief

Judge, presiding, entered an Order (J.A. 21) dismissing

the action on the merits, relying on the intervening deci-

sion of the Court of Appeals in Heirens v. Mizell, 729 F.2d

449 (7th Cir. 1984), cert. den., 469 U.S. 842 (1984). Nei-

ther the district court nor the magistrate considering this

case made any mention of exhaustion of state court

remedies in their decisions.

Petitioner appealed, and the Court of Appeals

appointed counsel. In his brief in the Seventh Circuit

Respondent argued for the first time that Petitioner failed

to exhaust state court remedies. Petitioner responded

that the most recent Seventh Circuit precedent held that

the failure to raise exhaustion in the district court con-

stituted waiver, Heirens v. Mizell, 729 F.2d 449. 457 (7th

Cir. 1984), cert. den., 469 U.S. 842 (1984). The Court of

Appeals decided that in light of this Court’s decision in

Rose v. Lundy, 455 U.S. 509 (1982) it was “required. . . to

5

consider the issue.[of exhaustion] swa sponte” (J.A. 25).

The panel thus determined that the state had not, and

could not, waive the issue of non-exhaustion. The panel

concluded that Petitioner had not exhausted state court

remedies and remanded the cause to the district court

with directions to dismiss the petition for failure to

exhaust state court remedies (J.A. 26-27).

Following the denial of Petitioner’s request for rehear-

ing and rehearing en banc (J.A. 28), he sought certiorari

review in this Court. On October 6, 1986 this Court

granted Petitioner leave to proceed in forma pauperis

and granted the Petition for Writ of Certiorari (J.A. 29),

107 S.Ct. 62.

SUMMARY OF ARGUMENT

This is a habeas corpus action brought by a state pris-

oner pursuant to 28 U.S.C. § 2254. In the district court

Respondent filed a Motion to Dismiss under Rule 12(b)(6),

Federal Rules of Civil Procedure. The question of non-

exhaustion of state court remedies was raised in neither

the Motion, supporting brief, nor the order of the district

court. On appeal the question of exhaustion was raised in

a short concluding section of the state’s brief. The United

States Court of Appeals found that the state could not

waive the question of exhaustion and remanded the case

to the district court with directions to dismiss the petition

without prejudice for failure to exhaust state court

remedies. This Court granted certiorari to resolve a con-

flict among the circuits on the question of whether the

state can waive the exhaustion issue. The merits of the

instant petition are not before the Court.

A. 1. This Court has consistently viewed the ques-

tion of exhaustion of state court remedies in a habeas

corpus action filed by a state prisoner to be a question of

6

comity and not jurisdiction, Ex parte Royall, 117 U.S.

241, 251 (1886); Bowen v. Johnston, 306 U.S. 19, 27 (1939).

When Congress included an exhaustion requirement in 28

U.S.C. §2254(b), it intended only to codify the existing

law and not create a jurisdictional exhaustion require-

ment.

2. The rule of comity underlying the exhaustion

requirement in section 2254 must consider the rela-

tionship of all aspects of state and federal governments,

not merely the relationship between the state and federal

judiciaries. While several circuits have concluded that the

interests of comity are concerned solely with judicial rela-

tionships, such conclusion is inconsistent with the histor-

ical concept of “comity” and state-federal relationships in

other areas. Particularly analogous is this Court’s deci-

sion in Ohio Bureau of Employment Services v. Hodory,

431 U.S. 471, 480 (1977) holding that the state could waive

federal court abstention required by Younger v. Harris,

401 U.S. 37 (1971). Refusing to allow the Illinois Attorney

General to waive exhaustion on behalf of the State fails to

recognize his constitutional role in state government. This

Court’s decision in Rose v. Lundy, 455 U.S. 509 (1982),

relied vpon by the court below, did not consider, and does

not address, the question of state waiver of the exhaustion

requirement.

3. While there is some question of whether a Motion

to Dismiss under Rule 12(b)(6), F.R.C.P. is proper in a

section 2254 case, the Respondent here clearly forfeited

any exhaustion defense by failing to raise the issue in the

district court. Such a conclusion is supported both by

precedent construing Rule 12(b)(6) as well as this Court’s

recent decisions requiring a criminal defendant to show

“cause” and “prejudice” for failing to raise an issue at the

appropriate point in the proceedings, Wainwright v.

7

Sykes, 433 U.S. 72 (1977); Smith v. Murray, 106 Sup.Ct.

2661 (1986).

B. 1. By twice seeking relief in the Illinois Supreme

Court, Petitioner has exhausted state court remedies.

Under Illinois law mandamus is the proper remedy, and

under the facts of this case, it was logical and appropriate

for Petitioner to seek relief in the state’s highest court.

Petitioner gave the state courts of Illinois a fair oppor-

tunity to consider the issue, and there is no suggestion

that the state supreme court denied relief on a procedural

basis.

2. A state prisoner is not required to pursue state

court remedies when recourse to state court would be

futile. The United States Court of Appeals for the Sev-

enth Circuit determined in 1981 that recourse to Illinois

courts on the issues raised by this Petitioner would be

futile, Welsh v. Mizell, 668 F.2d 328, 329 (7th Cir. 1982),

cert. den., 459 U.S. 923 (1982). This conclusion is rein-

forced by the fact that the law on the question has come

from the Seventh Circuit, and not the state courts.

Petitioner seeks reversal of the judgment of the Court

of Appeals and remand with directions to consider the

merits of the habeas courpus petition.

ARGUMENT

I

THE STATE FORFEITED THE DEFENSE OF NON-

EXHAUSTION OF STATE COURT REMEDIES BY FAILING

TO ASSERT SUCH CLAIM IN THE DISTRICT COURT.

A. The Exhaustion Requirement Of Section 2254 Is A Rule

Of Comity And Is Not A Jurisdictional Prerequisite.

Congress has given the federal courts broad power to

grant habeas corpus relief to any person “in custody in

8

violation of the Constitution of law or treaties of the

United States,” 28 U.S.C. §2241(c)(3). In construing a

predecessor of the present statute, this Court recognized

that federal courts’ power to grant writs of habeas corpus

“is of the most comprehensive character, . . . [i]t is impos-

sible to widen this jurisdiction,” Ex parte McCardle, 73

U.S. (6 Wall.) 318, 325, 326 (1868). The federal courts’

authority to grant relief to state prisoners, first recog-

nized in McCardle, is now codified in 28 U.S.C. § 2254

(“section 2254”). Section 2254(b) provides that a federal

court shall not grant relief to a state prisoner “unless it

appears that the applicant has exhausted the remedies

available in the courts of the States.” Since jurisdictional

requirements can never be waived, Zipes v. Trans World

Airlines, 455 U.S. 385, 397 (1982), it is first necessary to

consider whether the exhaustion requirement of section

2254 is jurisdictional. Petitioner submits that the exhaus-

tion requirement is clearly not jurisdictional.

In Ex parte Royall, 117 U.S. 241 (1886) this Court

reiterated that federal courts have the jurisdictional

authority to grant habeas corpus relief to a state prisoner

held in violation of the United States Constitution. The

Court concluded, however, that the courts of the United

States had discretion not to consider the habeas corpus

application immediately. JUSTICE HARLAN empha-

sized that comity between the state and federal govern-

ments is an important factor in considering whether a

federal court should exercise its discretion to consider a

state prisoner's habeas corpus petition:

That discretion should be exercised in the light of

relations existing, under our system of government,

between the judicial tribunals of the Union and of the

States, and in recognition of the fact that the public

~~ requires that those relations be not disturbed

y unnecessary conflict between courts equally

9

bound to guard and protect rights secured by the

Constitution.

Id. at 251. The Court concluded that absent “special cir-

cumstances” a state prisoner should be “put to his writ of

error from the highest court of the State” before the

federal court would grant habeas corpus relief, id. at 253.

This Court has considered the exhaustion requirement

as “not one defining power but one which relates to the

appropriate exercise of power,” Bowen v. Johnstor , 306

U.S. 19, 27 (1939). By the time the Judicial Code of 1948

was adopted this Court had made clear that as a “general

rule” federal courts should await exhaustion of state court

remedies before entertaining a state prisoner's petition,

Darr v. Burford, 339 U.S. 200 (1950); Ex parte Hawk, 321

U.S. 114, 116-117 (1944); United States ex rel. Kennedy v.

Tyler, 269 U.S. 13, 17-19 (1925). This “general rule” was

always subject to the recognition that federal courts had

the jurisdictional power to grant such relief absent

exhaustion and, indeed, should properly exercise such

authority under “special circumstances” without requir-

ing exhaustion, Frisbie v. Collins, 342 U.S. 519, 521-522

(1952).

When Congress adopted section 2254 as part of the

Judicial Code of 1948 (Ch. 646, § 2254, 62 Stats, 869, 967

(1948)) it intended to codify the existing law, H.R. Rep.

No. 308. 80th Cong. Ist Sess. A180 (1947) (“[t]his new

section is declaratory of existing law as affirmed by the

Supreme Court”). The adoption of this statute followed

the unsuccessful efforts of the Judicial Conference of the

United States to persuade Congress to make exhaustion

of state court remedies a jurisdictional prerequisite, see

generally, Yackle, The Exhaustion Doctrine in Federal

Habeas Corpus: An Argument for a Return to First

Principles, 44 Ohio St. L.J. 393, 411-412 (1983).

10

Subsequent to the codification of the exhaustion

requirement, this Court reiterated that federal court

jurisdiction is conferred in a habeas corpus action by the

mere allegation of unconstitutional restraint, and that

exhaustion of state court remedies is not a jurisdictional

requirement, Fay v. Noia, 372 U.S. 391, 420, 426 (1963),

in accord, Strickland v. Washington, 466 U.S. 668, 684

(1984).

The proposition that the exhaustion requirement of

section 2254 is “a matter of comity” and not a jurisdic-

tional rule was stated most recently in Rose v. Lundy, 455

U.S. 509, 515-520 (1982). In Rose JUSTICE O’CONNOR

reviewed the development of the exhaustion requirement

and concluded that previous decisions of this Court dem-

onstrate that the policy underlying the exhaustion

requirement is to “minimize friction between our federal

and state systems of justice by allowing the State an initial

opportunity to pass upon and correct alleged violations of

prisoners’ federal rights,” at 455 U.S. 518, citing Duck-

worth v. Serrano, 454 U.S. 1,2 (1981) (per curiam).

Petitioner submits that the current exhaustion require-

ment is a codification of a rule of comity adopted by this

Court a century ago in Royall. The intervening cases have

consistently reaffirmed the exhaustion requirement as a

matter of comity, and not as a matter of jurisdiction.

There is no basis to deviate from this principle in the case

at bar.

B. The Rule Of Comity Implicates The Entire State-Federal

Relationship, Not Merely The Concurrent Jurisdictions

Of The Courts.

1. The Circuits Are Divided On The Question Of Whether

Comity Looks Only To The Relationship Between

Courts Or Relationship Between Sovereigns.

The question of whether the exhaustion requirement

can be waived by the state has divided the circuits and has

ll

even resulted in inconsistent decisions within circuits. In

this case, for example, the Seventh Circuit held that it

was obligated to consider the exhaustion question even in

the presence of an explicit waiver by the state (J. A. 25).

The panel relied upon two earlier decisions of that court

on the question, United States ex rel. Lockett v. Illinois

Parole and Pardon Bd., 600 F.2d 116 (7th Cir. 1979);

Mattes v. Gagnon, 700 F.2d 1096 (7th Cir. 1983). In 1984,

however, the same court ruled that the failure to raise

exhaustion in the district court constituted waiver, Hezr-

ens v. Mizell, 729 F.2d 449, 457 (7th Cir. 1984), cert. den..,

469 U.S. 842 (1984). Moreover, in two cases decided after

the instant case, the Seventh Circuit found that it was not

required to reach the exhaustion question sua sponte,

United States ex rel. Russo v. Attorney General of IIli-

nois, 780 F.2d 712, 714 n.1 (7th Cir. 1986), cert. den., 106

S.Ct. 2922 (1986); Mosley v. Moran, 798 F.2d 182, 184 (7th

Cir. 1986).

Division among the circuits is predicated upon the

question of whether the doctrine of comity relates only to

the relationship of federal courts to state courts, or

whether comity implicates broader intergovernmental

relationships. Those circuits which have found that

exhaustion may not be waived by the state have consid-

ered exhaustion solely a matter of judicial relationships.

This position is exemplified by the Third Circuit's decision

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

96 (3rd Cir. 1977), cert. den., 485 U.S. 928 (1978):

Exhaustion is a rule of comity. “Comity,” in this con-

text, is that measure of deference and consideration

that the federal judiciary must afford to the co-equal

judicial systems of the various states. Exhaustion,

then, serves an interest not of state prosecutors but

state courts. It follows, therefore, that the state

court interest which underlies the exhaustion

requirement of §2254(b) cannot be conceded or

12

waived by state prosecutors—for the state court

interest in having “an initial ‘opportunity to pass

upon and correct’ alleged violations of its prisoners’

federal rights” is simply not an interest that state

prosecutors have been empowered to yield. (Original

emphasis, footnote omitted).

This position is supported by decisions of the First,

Sixth, Ninth, and Tenth circuits, Needel v. Scafati, 412

F.2d 761, 766 (1st Cir. 1969), cert. den., 396 U.S. 861

(1969); Bowen v. Tennessee, 698 F.2d 241, 242-243 (6th

Cir. 1983) (en banc), but see, Steele v. Taylor, 684 F.2d

1193, 1296 (6th Cir. 1982), cert. den., 460 U.S. 1053 (1983)

(recognizing state’s waiver of Rose v. Lundy objection to

mixed petition); Batchelor v. Cupp, 693 F.2d 859, 862 (9th

Cir. 1982), cert. den., 463 U.S. 1212 (1983); Naranjo v.

Ricketts, 696 F.2d 83, 87 (10th Cir. 1982).

The view that comity is concerned only with relations

between federal courts and those of the state has been

rejected by at least four other circuits. In Thompson v.

Wainwright, 714 F.2d 1495 (11th Cir. 1983), cert. den., 466

U.S. 962 (1984) the court concluded that:

Comity, as reflected in Sec. 2254, undoubtedly pro-

motes the interests of state courts, but this is merely

one aspect of comity’s broader purpose of maximizin

the control that a sovereign state has over its crimina

justice system.

The court went on to determine that the state’s attorney

general had significant interest in the administration of

justice in both the state and federal courts and that

“{c]omity requires sensitivity, not indifference, to the full

spectrum of state interests implicated by federal-state

habeas review,” id.

In McGee v. Estelle, 722 F.2d 1206 (5th Cir. 1984) (en

banc), the court was faced with a case in which the

13

attorney general stated in the district court that he

“believed” petitioner had exhausted his state court

remedies. While exhaustion was not raised by the state on

appeal, the panel remanded the case with directions to

dismiss for failure to exhaust, 704 F.2d 764, 768 (5th Cir.

1983). On rehearing en banc the Fifth Circuit found that

the state had waived the exhaustion question. Following

the Eleventh Circuit’s decision in Thompson, the Fifth

Circuit adopted a broad view of comity and the waiver of

the exhaustion question:

The doctrine of comity arises from the nature of our

federal system, the joinder of sovereign states into a

single union. Mutual respect among sovereigns for

the legislative, executive, or judicial acts of each

other constitutes the heart of the doctrine. Consider-

ations of finality, avoiding piecemeal litigation, and

a disruption of wren J also support comity.

t would pervert these principles to require a state,

in the name of comity, unwilling to endure the

expense and delay of a remand to state court if the

federal constitution question must ultimately be

resolved in a federal forum.

McGee, at 722 F.2d 1210-1211 (footnotes omitted). As one

judge has said, “[rJefusing a state the right to waive a

benefit conferred in deference to its sovereignty stands

sovereignty on its head,” Felder v. Estelle, 693 F.2d 549,

554 (5th Cir. 1982) (Higginbotham, J., concurring). This

position finds additional support in decisions of the Fourth

and Eighth circuits, Jenkins v. Fitzberger, 440 F.2d 1188,

1189 (4th Cir. 1971); Purnell v. Missouri Dept. of Correc-

tions, 753 F.2d 703, 708-710 (8th Cir. 1985); Kuntzelman

v. Black, 774 F.2d 291 (8th Cir. 1985), cert. den., 106S.Ct.

1474 (1986).

The Second Circuit, like the Seventh, has not spoken

with one voice on the exhaustion question. At times the

14

court has precluded waiver, United States ex rel. Sostre v.

Festa, 513 F.2d 1313, 1314, n.1 (2nd Cir. 1975), cert. den.,

423 U.S. 341 (1975); Gayle v. LeFevre, 613 F.2d 21, 22, n.1

(2nd Cir. 1980), while at other times finding the question

of exhaustion to be subject to waiver, Colon v. Fogg, 603

F.2d 403, 407 (2nd Cir. 1979), McCarthy v. Manson, 714

F.2d 234, 238 (2nd Cir. 1983) (waiver based in part on

unique role of Vermont’s Chief State’s Attorney under the

supervision of the judiciary).

2. There Is No Reasoned Basis For Limiting Comity To

Solely An Issue Of Relationships Between Courts.

“The language, structure, legislative history, and pre-

Code background of the exhaustion requirement lend vir-

tually no support to the proposition that the requirement

was intended to be a limitation on the jurisdiction of the

federal courts that cannot be waived, forfeited, or con-

ceded,” Note, State Waiver and Forfeiture of the Exhaus-

tion Requirement in Habeas Corpus Actions, 50 U. Chi.

L. Rev. 354, 363-364 (1983). The term “comity” was bor-

rowed from international law, where it was not limited to

the relationship between judges. Indeed, in considering

“comity” in the context of international law, this Court has

explicitly defined the concept to mean “(t]he extent to

which the law of one nation, as put in force within its

territory, whether by executive order, by legislative act,

or judicial decree, shall be allowed to operate within the

dominion of another nation, depends upon what our great

est jurists have been content to call ‘the comity of nations,”

Hilton v. Guyot, 159 U.S. 113, 163, (1895), see also,

United States ex rel. Trantino v. Hatrack, 563 F.2d at 163

(Gibbons, J. dissenting). Clearly, the original notion of

“comity” extended to the action of the executive and legis-

lative branches of government, and was not limited to the

relationship among judges.

15

In dealing with other cases involving “comity” this

Court has not looked merely to judicial relationships. In

Preiser v. Rodriguez, 411 U.S. 475 (1973) state prisoners

brought a civil rights action under 42 U.S.C. § 1983 seek-

ing to restore good time credits. This Court concluded

that restoration of good time, which would reduce the

duration of confinement, could only be brought in federal

court in a section 2254 habeas corpus action after exhaus-

tion of state remedies. The prisoners argued that the

exhaustion requirements of section 2254(b) should apply

only when the challenge was to state court action, citing

the very cases relied upon by those circuits which have

found the exhaustion requirement to be a rule relating

solely to judicial relationships, Brief for Respondents, at

12-14, Preiser v. Rodriguez, 411 U.S. 475 (1973). This

Court rejected such a narrow view of comity:

The rule of exhaustion in federal habeas corpus action

is rooted in considerations of federal-state comity.

That principle was defined in Younger v. Harris, 401

U.S. 37, 44, 27 L.Ed.2d 669, 91S.Ct. 746 (1971), as “a

proper respect for state functions,” and it has as

much relevance in areas of particular state admin-

istrative concerns as it does where state judicial

action is being attacked.

Id. at 491.

In a later case, involving abstention under Younger, the

state had urged abstention in the district court, but failed

to raise the issue on appeal. The Court concluded that “[i]f

the State voluntarily chooses to submit to a federal forum,

principles of comity do not demand that the federal court

force the case back into the State’s own system,” Ohio

Bureau of Employment Services v. Hodory, 431 U.S. 471,

480 (1977). This same rational should apply to the exhaus-

tion requirement found in section 2254, Felder v. Estelle,

16

693 F.2d 549, 553-554 (5th Cir. 1982); 17 Wright & Miller.

Federal Practice and Procedure, § 4264, at 654.

3. Allowing The State To Waive Exhaustion Is Consistent

With Decisions Of This Court In Analogous Areas Of

The Law.

Petitioner further submits that allowing for waiver of

the exhaustion question by the state's attorney general is

consistent with decisions of this Court allowing waiver in

analogous areas. As noted above, in Ohio Bureau of

Employment Services v. Hodory, 431 U.S. 471, 480 (1977)

this Court allowed the State to waive the judicially cre-

ated abstention doctrine adopted in Younger v. Harris,

401 U.S. 37 (1971) to prevent conflict between the state

and federal governments.

Similarly, the Court has recognized that the Eleventh

Amendment’ prohibition against federal courts from

hearing private suits against state government “is a per-

sonal privilege which it may waive at pleasure,” Clark v.

Barnard, 108 U.S. 436, 447 (1883): see also, Parden v.

Terminal R. Co., 377 U.S. 184, 186 (1964); Ford Motor

Co. v. Department of Treasury, 323 U.S. 459, 465 (1945);

Missouri v. Fiske, 290 U.S. 18, 24 ( 1933).

In Weinberger v. Salfi, 422 U.S. 749, 766-767 (1975) the

Court was concerned with the question of exhaustion of

administrative remedies by Social Security claimants.

Notwithstanding the fact that exhaustion of admin-

istrative remedies was a prerequisite to federal court

jurisdiction in Social Security cases, this Court deter-

mined that the Secretary of the Department of Health,

Education, and Welfare could waive the exhaustion

requirement. See also, Mathews v. Diaz, 426 U.S. 67, 76

(1976). In cases which involve other than jurisdictional

questions, lower courts have regarded exhaustion of

17

administrative remedies as subject to government waiver,

Haitian Refugee Center v. Smith, 676 F.2d 1023,

1033-1034 (5th Cir. 1982); Dougherty v. Bell, 694 F.2d 78,

80 (5th Cir. 1982); Mitchell v. United States, 229 Ct.Cl. 1,

664 F.2d 265, 276 (Ct.Cl]. 1981), affd., 463 U.S. 206 (1983).

Finally, this Court has indicated that the federal govern-

ment may waive venue, Panhandle E. Pipe Line Co. v.

Federal Power Comm’n., 324 U.S. 635, 639 (1945)

These cases all support the proposition that counsel for

the state or federal government can waive a right or

defense, particularly those rights which were intended to

protect the state or federal government from premature

intervention of the federal judiciary. While the early cases

of this Court do include language referring to comity as

the relationship among courts, there is no indication that

such precedent was intended to mean that exhaustion of

state court remedies applied only to action by the state

judiciary. The origins of the comity doctrine as well as its

application by this Court in other areas of the law clearly

repudiate the contention that comity is limited to merely

the question of concurrent jurisdiction of state and federal

courts.

4. Prohibiting The Illinois Attorney General From Waiv-

ing Exhaustion Of State Court Remedies Fails To Rec-

ognize His Authority Under Illinois Law.

The Respondent in this case has at all times been repre-

sented by the Attorney General of Illinois. In Illinois the

Attorney Generai is a constitutional officer, Constitution

of Illinois 1970, Article V, §15. He is given plenary

authority by the Illinois General Assembly to represent

the state and its officers, Illinois Revised Statutes (1985),

Chapter 14, Para. 4. Unlike the justices of the Illinois

Supreme Court, the Attorney General is elected on a

18

statewide basis. It is he who represents state officials in

both state and federal courts. It is his office that is aware of

the developing law in the area of inmates’ rights, criminal

procedure, and civil rights. As the Fifth Circuit noted in

McGee v. Estelle, 72% F.2d 1206, 1212 (5th Cir. 1984) (en

banc):

As the chief legal officer of the state, the attorney

general is the appropriate person to assert, or to

waive, the state’s right first to determine a claim that

the state is holding a person in custody in violation of

his federal constitutional rights.

As will be developed in the subsequent sections of this

Brief, the Attorney General recognized that this case was

governed by federal precedent, and that it could, and

should, be most expeditiously resolved in the federal

courts. He did not raise an exhaustion claim in the district

court and raised the issue only in the closing two pages of

his brief in the Seventh Circuit, after he had extensively

briefed the merits of this case. The Attorney General

made a rational strategic decision in this case not to raise

the exhaustion question in the district court. Viewing

comity without reference to the authority and role of the

Illinois Attorney General seriously denigrates his consti-

tutional authority and unnecessarily increases the fric-

tion between the state and federal governments. Such

lack of deference to the Attorney General's strategic deci-

sion in thus inconsistent with the application of the comity

principles expressed in Rose v. Lundy, 455 U.S. at 518.

5. Nothing In This Court’s Decision In Rose v. Lundy

Precludes State Waiver Of The Exhaustion Require-

ment.

The Court of Appeals concluded that this Court’s deci-

sion in Rose v. Lundy, 455 U.S. 509 (1982) requires a

tederal court to make a swa sponte determination of

19

exhaustion and to dismiss the petition if it finds a lack of

exhaustion. Petitioner submits that no such requirement

was suggested or intended in Rose. Indeed, the Court of

Appeals seems to have read Rose to elevate the concept of

exhaustion to a jurisdictional requirement. As Petitioner

has shown in the initial section of this Brief, this is clearly

not the law. Indeed, in Strickland v. Washington, 466

U.S. 668, 484 (1984), a case decided after Rose, this Court

reinterated that the exhaustion requirement of section

2254 is not jurisdictional.

In Rose the Court adopted a “total exhaustion” rule

whereby the district court was required to dismiss with-

out prejudice a 2254 petition if it contained both

exhausted and unexhausted claims. In Rose the state

vigorously pressed the exhaustion question. Obviously,

no question of waiver was presented in that case. In fact,

the Fifth Circuit has held that “waiver by a state of

exhaustion arguably removes from a mixed petition the

defect which Rose v. Lundy forbids,” Burns v. Estelle,

695 F.2d 847, 853 n. 2 (5th Cir. 1983). The Sixth Circuit,

while generally holding that the exhaustion requirement

can not be waived, has held that under Rose the state can

waive exhaustion by failing to object to a mixed petition in

the district court, Steele v. Taylor, 684 F.2d 1193, 1206

(6th Cir. 1982), cert. den., 460 U.S. 1053 (1983).

In Rose JUSTICE O’CONNOR reiterated the familiar

policies for exhaustion including affording the “oppor-

tunity to the state courts to correct a constitutional viola-

tion,” at 455 U.S. 518, citing, Darr v. Burford, 339 U.S.

200, 204 (1950). The Fifth and Eleventh Circuits read this

language in Rose to authorize state waiver of exhaustion,

McGee v. Estelle, 722 F.2d at 1212; Thompson v. Wain-

wright, 714 F.2d at 1505.

20

Petitioner submits that Rose simply does not speak to

the question of waiver. It is helpful! to the instant discus-

sion only to the extent it reformulates the basic question.

Under Rose the question becomes how the state’s “oppor-

tunity” to exercise state court jurisdiction need be

decided. Must state courts be given that “opportunity,” or

may the state's elected attorney general determine that

the state's best interests are served by litigating the issue

in federal court. Petitioner respectfully submits that the

Court of Appeals read into Rose a rule forbidding waiver

of exhaustion that is contained neither in the language of

the Court’s opinion nor was fairly presented by the facts of

that case.

C. Respondent Has Forfeited Any Exhaustion Defense By

Failing To Assert Such Claim In The District Court.

1. Respondent Should Be Bound By His Failure To Raise

Exhaustion In The District Court.

In the district court the Attorney General of Illinois did

not express!y waive nor concede exhaustion of state court

remedies. In response to the Order to Show Case (J. A. 11)

the Attorney General filed a Motion to Dismiss (J.A. 12)

going to the merits of the petition and made no reference

to exhaustion in either the Motion or his supporting brief

(J.A. 13-17). There is a question of whether the State’s

Motion to Dismiss is an appropriate pleading in view of

Rule 5 of the Rules Governing 28 U.S.C. Section 2254

Proceedings (“Rule 5“‘) which requires that the respond-

ent “state whether the petitioner has exhausted his state

remedies.” Several courts have held that the failure to

mention exhaustion in the state’s responsive pleading cou-

pled with a request to deny relief on the merits con-

stitutes waiver of the exhaustion issue, Pennington v.

Spears, 779 F.2d 1505, 1506 (11th Cir. 1986): Trwitt vy.

21

Jones, 614 F.Supp. 1342, 1346 (S.D. Ga. 1985), affd, 791

F.2d 940 (11th Cir. 1986); see also, Goins v. Aliwood, 391

F.2d 692, 693 (5th Cir. 1968) (under predecessor statute).

Petitioner submits that by the Respondent’s failure to

raise exhaustion in his “Motion to Dismiss” and by

requesting the district court to dispose of the merits of the

petition the exhaustion issue has been forfeited by the

State.

The circuits are divided on the question of whether the

state’s failure to raise exhaustion in the district court

constitutes waiver! of the defense. Some courts have

found that even though the prosecutor failed to raise the

claim, it could be considered, Strader v. Allsbrook, 656

F.2d 67, 68 (4th Cir. 1981); Campbell v. Crist, 647 F.2d

956, 957 (9th Cir. 1981); Gayle v. LeFevre, 613 F.2d 21, 22,

n. 1 (2nd Cir. 1980); Davis v. Campbell, 608 F.2d 317, 320

(8th Cir. 1979). Other courts have found that by failing to

assert the exhaustion claim in a timely manner, it was

waived, Shaw v. Boney, 695 F.2d 528, 529 n. 1 (11th Cir.

1983); Hopkins v. Jarvis, 648 F.2d 981, 983 n. 2 (5th Cir.

1981); Messelt v. Alabama, 595 F.2d 247, 250-251 (5th Cir.

1979); United States ex rel. Graham v. Mancusi, 457 F.2d

463, 467 (2nd Cir. 1972). Commentators are also divided

on the question, at least one taking the position that the

failure of the state to raise exhaustion should not be

1 The issue here is not truly one of “waiver,” which requires “an

intentional relinquishment or abandonment of a known right,”

Johnson vy. Zerbst, 304 U.S. 458, 464 (1938), but of stage preclusion

which “demands that a right be asserted during the stage to which it

is most relevant,” Rubin, Toward a General Theory of Waiver, 28

U.C.L.A. L. Rev. 478, 514-515 (1981). This “waiver” is often consid-

ered a “forfeiture,” Westen, Away from Waiver: A Rationale for the

Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.

L. Rev. 1214 (1977).

22

presumed to be waiver, Note, State Waiver of the Exhaus-

tion Requirement in Habeas Corpus Cases, 52 Geo.

Wash. L. Rev. 419, 431 (1984), while others argue that

such default constitutes forfeiture of the issue, Yackle,

Postconviction Remedies 238 (1981); Note, State Waiver

and Forfeiture of the Exhaustion Requirement in Habeas

Corpus Actions, at 377-378.

In the instant case it is apparent why Respondent

decided not to assert non-exhaustion in the district court,

but to seek disposition of the petition on the merits. First,

the governing precedent at the time the state filed its

response on the merits of the petition was a decision of the

Seventh Circuit, Welsh v. Mizell, 668 F.2d 328 (7th Cir.

1982), cert. den., 459 U.S. 923 (1982). Secondly, the Peti-

tioner had twice sought relief from the Illinois Supreme

Court. Thirdly, the district courts in Illinois had already

resolved the issue raised in this case against Petitiouer,

see, Brief in Support of Motion to Dismiss, (J.A. 14-16).

Finally, Petitioner was not represented by counsel, and it

appeared that the case could be quickly disposed of.

The action of the Attorney General in this case was

neither ambiguous, erroneous, nor inadvertent, cf. Davis

v. Campbell, 608 F.2d 317, 320 (8th Cir. 1979). His Motion

to Dismiss plainly asked the district court to consider and

reject the merits of the petition. It was only when the

Court of Appeals appointed counsel who raised at least a

colorable argument on the merits? that the Attorney Gen-

* Although the merits of the habeas corpus are not before the

Court, Respondent argued in his Brief in Opposition to certiorari

that the Petitioner could not prevail on the merits. Petitioner

strongly contends that the Seventh Circuit's decision in Heirens v.

Mizell, 729 F.2d 449 (7th Cir. 1984), cert. den., 469 U.S. 842 (1984),

overruling Welsh v. Mizell, 668 F.2d 328 (7th Cir. 1981), was incorrect.

He believes that if afforded the opportunity, he can demonstrate that

the statute changing the parole criteria is an ex post facto law as

applied to him.

)

23

eral reconsidered his decision not to raise an exhaustion

defense. This was too late. Counsel made a rational strate-

gic decision not to raise the exhaustion issue, and

Respondent should be bound by that decision.

J

2. Respondent Conceded Exhaustion Of State Court

Remedies By Filing A Motion To Dismiss Under Rule

12(b)(6), F.R.C.P.

Respondent alleged in his Motion to Dismiss that Peti-

tioner failed to state a claim upon which relief may be

granted and that pursuant to Rule 12(b)(6), Federal Rules

of Civil Procedure (F.R.C.P.), this action should be dis-

missed (J.A. 12).

Rule 81(a)(2), F.R.C.P., provides that the Rules are

applicable to habeas corpus proceedings “to the extent

that the practice in such proceedings is not set forth in

statutes of the United States and has heretofore con-

formed to the practice in civil actions.” In Harris v.

Nelson, 394 U.S. 286 (1969) the Court held that civil

discovery rules were not applicable in habeas corpus pro-

ceedings, and that separate rules governing 2254 actions

“would promise much benefit,” 394 U.S. at 300, 301, n. 7.

Such separate rules were promulgated in 1976 and as

amended by Congress, were enacted effective February

1, 1977, Pub. L. 94-426, 90 Stat. 1334 (1976). Given the

adoption of such separate rules, “it may be doubted that in

cases covered by Section 2254. . . the ‘conformity’ provi-

sions in Rule 81(a)(2) has any continuing significance,” 7

Moore’s Federal Practice, §81.04[4] at 81-54. See also,

Pitchess v. Davis, 421 U.S. 482 (1975) (holding that Rule

60(b), F.R.C.P., providing for relief from judgment, does

not apply in a section 2254 habeas corpus action).

The application of the Federal Rules of Civil Procedure

to section 2254 cases is nevertheless unclear. In Black-

ledge v. Allison, 431 U.S. 63 (1977) the Court determined

24

that a motion for summary judgment under Rule 56,

F.R.C.P. was proper in a 2254 cases, while in Browder v.

Director, Dept. of Corrections of Ill., 434 U.S. 257, 272

(1978) (Blackmun, J. concurring) there is the suggestion

that Rule 60, F.R.C.P. also applies in section 2254 cases.

At least one court has found “the application of Federal

Rules of Civil Procedure to habeas cases is a persistent

and perplexing problem,” Hillery v. Pulley, 553 F.Supp.

1189, 1196 (E.D. Calif. 1982).

If this matter were in the district court, Petitioner

would move to strike the 12(b)(6) motion filed by Respond-

ent as being inconsistent with Rule 5 of the Section 2254

rules, and thereby not applicable to habeas corpus cases

under the incorporation language of Rule 81(a)(2),

F.R.C.P. Once such a motion has been filed and accepted

by the district court, however, the allegations of the peti-

tion should be construed favorably to the pleader, Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974), and its allegations

taken as true, Jenkins v. McKeithen, 395 U.S. 411,

421-422 (1969). Petitioner clearly alleged in his pleading

that he had exhausted state court remedies (J.A. 5-6).

Thus by filing a 12(b)(6) motion, Respondent conceded

exhaustion just as much as if he had specifically and

explicitly waived the issue.

While Petitioner believes that a 12(b)(6) motion does

not lie in a section 2254 case, the failure of Respondent to

file a answer which complies with Rule 5 should not delay

disposition of this case at this juncture in the proceedings.

By any account, the manner in which the Respondent

replied to the petition is a waiver of the exhaustion ques-

tion.

25

3. Requiring A State Attorney General To Raise The Issue

Of Non-Exhaustion Of State Remedies In The District

Court Is Most Consistent With Decisions Of This Court

Holding Criminal Defendants Bound By The Pro-

cedural Defaults Of Their Attorneys.

In the past decade, beginning with Wainwright v.

Sykes, 433 U.S. 72 (1977), this Court has foreclosed

federal habeas corpus review of a criminal conviction in

which the defendant has failed to take some required

action at a more preliminary stage in the proceedings,

unless the petitioner can show “cause” for the default as

well as any “prejudice” attributable thereto, see also,

Engle v. Isaac, 456 U.S. 107 (1982) and Francis v. Hen-

derson, 425 U.S. 536 (1976). This line of cases culminated

last term in the decisions in Murray v. Carrier, 106 S.Ct.

2639 (1986) and Smith v. Murray, 106 S.Ct. 2661 (1986)

wherein this Court concluded that neither the inadver-

tence nor tactical decision of counsel would relieve a crimi-

nal defendant of the procedural default resulting from the

attorney’s failure to take action at the appropriate stage in

the proceedings.

Here the Illinois Attorney failed to comply with Rule 5

of the Rules Relating to 2254 Actions. He failed to raise

non-exhaustion in either his Moticn to Dismiss or sup-

porting brief in the district court. Petitioner submits that

the Attorney General of Illinois should be required to

meet the same standards of showing “cause” and “preju-

dice” for his procedural default as would a criminal

defendant under the line of cases cited above. The peti-

tioner in Smith v. Murray was sentenced to death, but he

was nevertheless precluded from obtaining complete

review of his conviction and sentence due tv the inadver-

tence of his appellate attorney. It would certainly seem

reasonable and fair to require the attorneys who repre-

sent the State of Illinois in criminal post-conviction pro-

26

ceedings to meet the same standards as defense attorneys

who may have only very limited experience in criminal

law, e.g. United States v. Cronic, 466 U.S. 648 (1984).

Here Respondent manifestly failed to raise the exhaus-

tion issue at the time specified by Rule 5. If a habeas

petitioner had failed to raise a constitutional claim in the

district court, he would have been barred from raising the

claim on appeal, cf. Dorszynski v. United States, 418 U.S.

424, 431 n. 7 (1974); Irvine v. California, 347 U.S. 128,

129-130 (1954) (Court need not consider issues not raised

in certiorari petition). Petitioner submits that equal

application of the “cause” and “prejudice” requirement

mandates reversal of the decision of the Court of Appeals.

The exhaustion requirement found in section 2254(b) is

a non-jurisdictional rule of comity. The valid concerns of

the relationship between the state and federal govern-

ments are adequately addressed when the state’s consti-

tutional officer, the Attorney General, decides not to con-

test state court consideration of a state prisoner’s habeas

corpus petition. The state should be bound by the same

rules of pleading, practice, and forfeiture as any other

litigant in the federal courts. All of these factors point to

but one result: the issue of exhaustion of state court

remedies under section 2254(b) may be, and was in this

case, forfeited by Respondent.

II

PETITIONER HAS EXHAUSTED HIS STATE COURT

REMEDIES AND, IN ANY EVENT, FURTHER RECOURSE

TO THE STATE COURTS OF ILLINOIS WOULD BE FUTILE

IN THIS CASE.

A. Petitioner Has Exhausted His State Court Remedies.

Under Illinois law mandamus is the proper remedy for

attacking the denial of parole, People ex rel. Abner v.

27

Kinney, 30 Il.2d 201, 195 N.E.2d 651 (1964). Petitioner

has twice addressed a mandamus request to the Illinois

Supreme Court. In 1981 Petitioner and other inmates at

the Vienna Correctional Center filed an action contesting

the application of the new parole criteria to them, People

ex rel. Long v. Irving, No. 7023 (Ill. Oct. 30, 1981). That

action was denied without prejudice to refiling the action

in the state court of general jurisdiction (J.A. 10). In 1983

Petitioner attempted to commence a second mandamus

action in the Illinois Supreme Court. In that case the

court granted Petitioner leave to sue as a poor person, but

denied Petitioner leave to file a petition for writ of man-

damus and for appointment of counsel, People ex rel.

Granberry v. Illinois Prison Review Board, No. 7145 (Ill.

April 13, 1983) (J.A. 9). In the latter order there was no

suggestion that the relief was denied on some procedural

grounds, and, unlike the 1981 order, there was no sugges-

tion that Petitioner should seek relief in the trial court.

This action was filed several months after the Illinois

Supreme Court’s second order.

It is important to understand why Petitioner would

address an original petition to the state’s highest court.

The Fifth District of the Illinois Appellate Court has

jurisdiction over Johnson County in which Petitioner is

confined. In 1980 that court specifically rejected the ex

post facto argument advanced by Petitioner, Harris v.

Irving, 90 Ill. App.3d 56, 412 N.E.2d 976 (5th Dist. 1980).

The Illinois Supreme Court denied discretionary review

of the Appellate Court’s decision, leave to appeal denied,

No. 54264 (Ill. Jan. 30, 1981), 82 Il].2d 584 (1981). Since in

Illinois the opinions of the Appellate Court are binding on

all state circuit courts, People v. Foote, 104 Ill. App.3d 581,

432 N.E.2d 1254, 1257 (1st Dist. 1982), it was clear that

Petitioner was foreclosed from obtaining relief in either

28

the circuit or appellate court having jurisdiction over his

claim. If he was going to obtain relief from any Illinois

court, it was going to have to come from the state supreme

court.

In order to exhaust state court remedies, all a state

prisoner must do is fairly present his claims to the state

courts, Picard v. Conner, 404 U.S. 270, 275 (1971); there

is no requirement that the state court address the merits

of the claim, Smith v. Digmon, 434 U.S. 332, 333 (1978).

Here Petitioner twice requested that the Illinois Supreme

Court assume jurisdiction of the matter. Each time the

court refused.

In concluding that Petitioner had not exhausted his

state court remedies, the Seventh Circuit relied on

United States ex rel. Johnson v. Mcginnis, 734 F.2d 1193

(7th Cir. 1984), a case in which the petitioner failed to seek

the proper remedy in the state courts. Clearly, this failure

is the dispositive distinction between Johnson and the

case at bar. Here Petitioner twice pursued the correct

remedy in state courts, while in the case relied upon by

Respondent and cited by the Court of Appeals no such

applications were filed. In Johnson there was clearly no

exhaustion; here there was.

Secondly, the court below incorrectly stated that the

Illinois Supreme Court had directed the Petitioner to

seek relief in the circuit court (J.A. 27). The language

quoted by the Seventh Circuit appeared not in the 1983

order of the Illinois Supreme Court (J.A. 9), but in the

1981 order (J.A. 10). The governing writ should obviously

be the latest action of the state supreme court which

includes no suggestion of other remedies or other courts.

There is no indication that the Illinois Supreme Court

denied relief on any procedural basis whatsoever. While it

29

is true, of course, that a state prisoner does not exhaust

state remedies by pursuing the wrong procedural

remedy, Williams v. Wyrick, 763 F.2d 363 (8th Cir. 1985)

(motion to recall mandate not proper procedure to evalu-

ate prisoner's constitutional claims), here there is no ques-

tion but that Granberry pursued the correct remedy.

Absent a showing on the record that the state court

denied relief on procedural grounds, this Court should

presume denial on the merits, Bell v. Watkins, 692 F.2d

999, 1006 (5th Cir. 1982), cert. den., 464 U.S. 843 (1982);

Ross v. Craven, 478 F.2d 240, 241 (9th Cir. 1973); Castro v.

Klinger, 373 F.2d 847, 848 (9th Cir. 1967).

In this case Petitioner pursued the correct remedy in

the appropriate court, and that court denied relief on the

merits. The Court of Appeals erred in concluding that

Petitioner had not exhausted his state court remedies.

B. Further Recourse To The State Courts Of Illinois Would

Be Futile.

A state prisoner is not required to pursue state court

remedies for the purposes of exhaustion under section

2254 if recourse to state court would be futile, Duckworth

v. Serrano, 454 U.S. 1, 3 (1981); United States ex rel.

Buckhana v. Lane, 787 F.2d 230, 235 (7th Cir. 1986);

Brand vy. Lewis, 784 F.2d 1515, 1517 (11th Cir. 1986);

Allen v. Perini, 424 F.2d 134, 139 (6th Cir. 1970), cert.

den., 400 U.S. 906 (1970).

Ironically, five years ago the United States Court of

Appeals for the Seventh Circuit found that it was futile for

an Illinois prisoner to raise this precise issue in state

court, Welsh v. Mizell, 668 F.2d 328, 329 (7th Cir. 1982),

cert. den., 459 U.S. 923 (1982). The panel in the present

case made no reference to the determination of futility in

Welsh.

30

Manifestly, recourse to Illinois courts would be futile.

As noted in the preceding section of this Brief, the appel-

late court with jurisdiction over Petitioner has resolved

this case against him, thus barring relief in any Illinois

court other than the state supreme court. More impor-

tantly, this is a case in which the definitive precedent has

come from tne United States Court of Appeals for the

Seventh Circuit. In Welsh that court held the retroactive

application of statutory parole criteria to be an ex post

facto law. Subsequently the court overruled Welsh in

Heirens v. Mizell, 729 F.2d 449 (7th Cir. 1984), cert. den.,

469 U.S. 842 (1984). Thus even if the Illinois Supreme

Court were inclined to consider the matter, it would be

faced with direct precedent from the Seventh Circuit on

the issue. In light of the adverse determination of the

state appellate court, the disinclination of the Illinois

Supreme Court to hear the various cases raising this

issue, and the fact that the law on this question has come

from the federal, and not state, courts, it would surely be

an exercise in futility to require the Petitioner to file his

third mandamus action in an Illinois court.

31

CONCLUSION

Petitioner has shown in this Brief that Respondent for-

feited his right to contest non-exhaustion of state court

remedies by failing to raise that issue in the district court.

Even if this Court concludes that there was no waiver of

the issue, however, it is apparent that Petitioner has, in

fact, exhausted his state court remedies and that further

recourse to Illinois courts would be futile.

For the reasons specified herein, Petitioner

respectfully prays that the judgment of the United States

Court of Appeals for the Seventh Circuit be reversed and

the cause remanded with directions to consider the merits

of the petition for writ of habeas corpus.

Respectfully submitted,

HowarD B. EISENBERG

(Appointed by this Court)

104 Lesar Law Building

Southern [llinois University

Carbondale, Illinois 62901

(618) 536-4423

Attorney for Petitioner