# Petitioners Brief — Granberry v. Greer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 129

## Text

{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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0278%3A6. Public record. Not legal advice.