Robert Gray Graham v. Herman Solem, Warden, South Dakota State Penitentiary, and Mark v. Meierhenry, Attorney General, State of South Dakota

728 F.2d 1533, 1984 U.S. App. LEXIS 24867

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 5, 1984
• Docket: 82-1371
• Status: Published

Opinions

Herman Solem, Warden of the South Dakota State Penitentiary at Sioux Falls, and Mark Meierhenry, Attorney General of South Dakota, appeal from a final judgment entered in the District Court for the District of South Dakota granting a writ of habeas corpus to petitioner Robert Graham. For the reasons discussed below, the judgment of the district court is reversed.

Two issues were argued and submitted to the court sitting en banc: (1) whether Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), should apply retroactively and (2) whether the district court erred in holding that the complaining witness’ in-court identification of Graham was the result of impermissibly suggestive identification procedures, was unreliable, and therefore inadmissible. Because a different majority of the court decided each issue, a different member of the court prepared the majority opinion for each issue. The dissenting opinions immediately follow the majority opinion for each issue.

I. EXHAUSTION

McMILLIAN, Circuit Judge, with whom ROSS, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, join.

Petitioner Graham and his three co-defendants, Reiman, Onstott and Elliott, were tried and found guilty by a jury in state court of kidnapping and raping a Yankton, South Dakota, woman. All four defendants appealed to the South Dakota Supreme Court, which reversed Onstott and Elliott’s kidnapping convictions, but upheld all the other convictions. State v. Reiman, 284 N.W.2d 860, 874 (S.D.1979). Petitioner Graham subsequently filed a petition for a writ of habeas corpus in the federal district court. The petition reiterates basically the same points made to the state supreme court. The district court granted the writ, holding that the use of the victim’s identification of Graham at trial was a violation of Graham’s federal constitutional right to due process. The state appealed, challenging both the district court’s power to address the merits of the issues raised in Graham’s petition and the district court’s decision on the merits.

The first issue raised in this appeal is whether the United States Supreme Court’s recent decision in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379, requires us to dismiss Graham’s habeas corpus petition. Rose v. Lundy held that federal district courts may not entertain habeas corpus petitions which contain both exhausted and unexhausted claims. Id. at 522, 102 S.Ct. at 1205. The state contends that Graham has failed to exhaust several of the nineteen claims raised in his habeas petition and, therefore, the entire petition must be dismissed. Graham’s position is that he has exhausted all nineteen claims.¹ As an alternate argument, Graham maintains that this court should, not apply Rose v. Lundy in his case because the district court issued the writ on the basis of a claim that was exhausted and did so before Rose v. Lundy was decided.

First, we determine whether the habeas petition before us contains any unexhausted claims.

A. Exhaustion Requirement

A federal habeas petitioner satisfies the exhaustion requirement of 28 U.S.C. § 2254(b) (1976) when he either (1) has no other presently available state remedies to pursue or (2) has fairly presented the substance of his federal claims to the state’s courts. Moore v. Wyrick, 668 F.2d 1007, 1009 (8th Cir.1982). Under South Dakota law, Graham still has post-conviction remedies available to him.² Thus, we must examine Graham’s brief before the South Dakota Supreme Court to determine whether he fairly presented that court with an opportunity to pass upon the federal constitutional grounds of his claims.³ Citation to a provision of the federal constitution or a case addressing the constitutional basis of the claim, or a discernible reference to a federal constitutional right is all that is normally required. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 277-78 & n. 3, 74 L.Ed.2d 3 (1982) (per curiam); Morrow v. Wyrick, 646 F.2d 1229, 1232 (8th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 401, 70 L.Ed.2d 216 (1981); Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980). In making this assessment, we must bear in mind that state courts, as co-equal guardians of constitutional rights, are able to recognize federal constitutional issues even when no explicit reference is made to the federal constitution. See Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.

A review of Graham’s state supreme court brief reveals that he has failed to exhaust issues 5, 6, 9, 10, 11, 14 and 15 raised in his petition for a writ of habeas corpus.⁴ We are faced, therefore, with a mixed⁵ habeas petition and must decide whether to apply Rose v. Lundy retroactively-

B. Retroactivity of Rose v. Lundy

We are aware that almost all of the circuits have applied Rose v. Lundy retroactively. See, e.g., Bowen v. Tennessee, 698 F.2d 241, 242-43 (6th Cir.1983) (en banc); Burns v. Estelle, 695 F.2d 847, 851-52 & n. 2 (5th Cir.1983); Gulliver v. Dalsheim, 687 F.2d 655, 657 & n. 3 (2d Cir.1982); Harding v. North Carolina, 683 F.2d 850, 851-52 (4th Cir.1982); Slotnick v. O’Lone, 683 F.2d 60, 61 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); Jones v. Hess, 681 F.2d 688, 695 & n. 9 (10th Cir.1982); United States ex rel. Clauser v. Shadid, 677 F.2d 591, 593 (7th Cir.1982). Contra Johnson v. Balkcom, 695 F.2d 1320, 1322 (11th Cir.1983); Niziolek v. Ashe, 694 F.2d 282, 285-87 (1st Cir.1982).⁶ We also are aware that this circuit has mixed opinions on the subject. Compare Dunn v. Wyrick, 679 F.2d 731, 733 (8th Cir.1982) (Rose v. Lundy will not be applied to habeas corpus petitions where exhausted claims have been fully litigated and decided in the federal district court prior to the Rose v. Lundy decision), and Romano v. Wyrick, 681 F.2d 555, 556 & n. 3 (8th Cir.1982) (mixed petition need not be dismissed in its entirety), with Stewart v. Parratt, 682 F.2d 757, 758 (8th Cir.1982) (remanding case to district court to reconsider in light of Rose v. Lundy).

This court’s most recent opinion on the effect of Rose v. Lundy was Richards v. Solem, 693 F.2d 760, 763-64 (8th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In Richards, the court chose to follow Dunn for three reasons: (1) Dunn was directly on point because it involved a district court judgment that denied the writ; (2) it felt Dunn was persuasive in arguing that retroactive application of the exhaustion requirement would waste judicial resources; and (3) non-retroactive application of Rose v. Lundy to the petition before it comported with the comity purpose of the total exhaustion rule because the federal district court and circuit courts in Richards agreed with the state courts that post-conviction relief should be denied. See also Royal v. Wyrick, 694 F.2d 525, 527 n. 2 (8th Cir.1982).

In following Dunn, the Richards panel stated that three post-Rose v. Lundy United States Supreme Court orders did not require a different result. Richards, 693 F.2d at 764. All three orders involved cases in which mixed habeas petitions were decided on the merits by the federal district and circuit courts before Rose v. Lundy was handed down. In two of these orders, Duckworth v. Cowell, 455 U.S. 996, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982), and Rodriquez v. Harris, 455 U.S. 997, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982), the Court granted certiorari, vacated the judgment, and remanded the case to the court of appeals with instructions to direct the district court to dismiss the petition for writ of habeas corpus. In the third case, Bergman v. Burton, 456 U.S. 953,102 S.Ct. 2026, 72 L.Ed.2d 478 (1982) (order), the Court vacated the judgment and remanded the case to the court of appeals for further consideration in light of Rose v. Lundy. The Supreme Court’s orders in Duckworth and Rodriquez, which direct the lower courts to apply the total exhaustion rule to cases decided before Rose v. Lundy, permit no other conclusion than that the Supreme Court is applying Rose v. Lundy retroactively.⁷

The Richards panel, however, distinguished these cases because they all involved lower federal court decisions which granted the writ of habeas corpus, while in Richards, the writ was denied. The reasoning implicit in this distinction is that the failure to retroactively apply the total exhaustion rule to cases that granted the writ would create the kind of federal-state friction assailed in Rose v. Lundy, yet no such friction would be generated when the federal court agrees with the state courts in denying post-conviction relief. Thus, while all the reasons militating against the total exhaustion rule are present in cases in which the federal court has already agreed with the state courts on the merits, none of the purposes justifying the total exhaustion rule would be served by retroactively applying Rose v. Lundy to such cases.

This distinction has the force of logic behind it, but it overlooks the fact that both the district court and the court of appeals in Rodriquez denied the petition for writ of habeas corpus. See Rodriquez v. Harris, No. 79-CIV-4177 (S.D.N.Y. July 9, 1980) (order adopting magistrate’s recommendation to deny the writ), aff’d mem., 659 F.2d 1062 (2d Cir.1981). The Supreme Court’s order that the total exhaustion rule must be applied even to a lower court’s pre-Rose v. Lundy denial of a mixed habeas petition shows that it is not up to the courts of appeals to re-balance federal-state comity against conservation of judicial resources. That balance was struck in Rose v. Lundy. As the Third Circuit recently said in holding that Rose v. Lundy must be applied retroactively, “we are not free to consider whether the burdens imposed by the Rose v. Lundy rule will be commensurate with the benefits articulated in its support by the Supreme Court.” Slotnick v. O’Lone, 683 F.2d at 61. We now conclude, en banc, that Rose v. Lundy must be applied retroactively.

In his federal appellate brief, Graham requests that should we find any of his claims to be unexhausted, we should summarily dismiss the unexhausted claims as a means of complying with the total exhaustion rule. Appellee’s Brief at 29-30. Graham has filed an affidavit in this court and in the district court below waiving any claims raised in his petition which this court finds to be unexhausted for purposes of Rose v. Lundy. This procedure is functionally equivalent to Justice O’Connor’s suggestion in Rose v. Lundy that a habeas petitioner “can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims.” 455 U.S. at 520, 102 S.Ct. at 1204. It has been adopted by this and other circuits. Stewart v. Parratt, 682 F.2d at 758. See Rock v. Coombe, 694 F.2d 908 (2d Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1773, 76 L.Ed.2d 345 (1983); Guthrie v. Warden, 683 F.2d 820, 821 n. 1 (4th Cir.1982). Contra Bowen v. Tennessee, 698 F.2d at 245-46. We will adopt this procedure also and accept Graham’s waiver of issues 5, 6, 9, 10, 11, 14 and 15. Thus, Graham’s petition, as amended, only contains exhausted claims.

LAY, Chief Judge, dissenting, with whom HEANEY, Circuit Judge, joins.

The Supreme Court has not spoken on this issue. On weighing the retroactivity of any new doctrine one of the basic concerns relates to measuring the overall effect the application of a new rule will have if applied to pending cases. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971); Rudolph v. Wagner Electric Corp., 586 F.2d 90, 92-95 (8th Cir.1978), cert. denied, 441 U.S. 924, 99 S.Ct. 2033, 60 L.Ed.2d 397 (1979). Here the retroactive application of the mixed-exhaustion rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), creates a tremendous waste of judicial time already expended by federal district judges. Richards v. Solem, 693 F.2d 760, 763-64 (8th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983); Dunn v. Wyrick, 679 F.2d 731, 733 (8th Cir.1982).

I repeat what I have earlier observed: It is absurd to think that additional procedural roadblocks will deter prisoners from filing petitions to seek their release. Both federal courts and state courts who attempt to provide deterrents to prisoners by procedural technicalities only make work for themselves. It is true that procedural rules serve important policies as well. However, courts which too willingly enter into discussion of complicated and technical problems of exhaustion, which tackle procedural bypass questions with detailed determinations of “cause” and “prejudice,” could conclude the proceedings more expeditiously by going directly to the merits. Post-conviction cases rarely result in relief; state and federal trial courts, now long familiar with established constitutional process, generally toe the constitutional mark. The merits of a case are more easily decided than the litigation of technical problems presented by procedural rules. The point is that all courts should be more resourceful by passing on the merits of all claims as soon as possible, rather than resorting to intricately involved procedural concerns which only serve to extend simple issues into protracted and frustrating satellite litigation. The real losers are the courts themselves.

Ashby v. Wyrick, 693 F.2d 789, 796 (8th Cir.1982) (Lay, C.J., concurring).

Nonetheless, although this case was placed en banc in order for the court to decide this allegedly important question, I submit it never should have been argued. The issue was never really before us. In petitioner’s brief he waived his nonexhaust-ed claims so there was no longer any viable Rose v. Lundy question. I always thought it fundamental we should not discuss issues which do not present live controversies. Judge McMillian’s statement about exhaustion in this case is strictly obiter dictum.

1 . The district court held that Graham had exhausted all nineteen of the issues raised in his habeas corpus petition. Graham v. Solem, No. CIV80—4174, mem. op. at 4 (D.S.D. Feb. 16, 1982).

2 . S.D. Codified Laws Ann. § 23A-34-1 through 34-23 (1979). See Moore v. Wyrick, 668 F.2d 1007, 1009 (8th Cir.1982); Thomas v. Wyrick, 622 F.2d 411, 414 (8th Cir.1980).

3 . Only errors of federal constitutional significance are cognizable in federal habeas corpus review of a state conviction. De Berry v. Wolff, 513 F.2d 1336, 1338 (8th Cir.1975).

4 . In his state court brief (hereinafter referred to as State Brief), Graham cited either a specific federal constitutional provision or a case addressing the federal constitutional issue or both for each of the other nineteen issues: Issue 1, State Brief at 29-31; Issue 2, State Brief at 46-47; Issue 3, State Brief at 71-73 and State v. Reiman, 284 N.W.2d 860, 866 (S.D.1979) (raising the constitutional issue of guilt by association); Issue 4, State Brief at 54; Issue 7, State Brief at 55-56; Issue 8, State Brief at 59, 61-62; Issue 12, State Brief at 68-69; Issue 13, State Brief at 70 and citation to trial motion raising sixth amendment right to effective assistance of counsel at Tr. 2106-09; Issue 16, State Brief at 82 and citation to State v. Billington, 86 N.M. 44, 519 P.2d 140, 142 (1974); Issue 17, State Brief at 86 (reference made to right to cross-examination and “basic right of compulsory process”); Issue 18, see State v. Reiman, 284 N.W.2d at 865; Issue 19, State Brief at 87.

5 . A habeas corpus petition is said to be “mixed” when it contains both claims which were fully exhausted in the state courts and those which were not fully exhausted in the state courts.

6 . The United States Court of Appeals for the Fifth and Ninth Circuits adopted a total exhaustion rule before Rose v. Lundy was decided. See Rose v. Lundy, 455 U.S. 509, 513 n. 5, 102 S.Ct. 1198, 1201 n. 5, 71 L.Ed.2d 379 (1982). The Eleventh Circuit follows the Fifth Circuit precedent. See Cosby v. Jones, 682 F.2d 1373, 1376-78 (11th Cir.1982).

The Fifth Circuit’s total exhaustion rule, as adopted by the Eleventh Circuit, had an exception, however: if the district court already reviewed the merits of a mixed petition, the petition would not be dismissed at the appellate level. See Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc). The Fifth Circuit has now concluded that this exception is no longer valid after Rose v. Lundy, even when the district court’s decision was rendered before Rose v. Lundy was decided. Burns v. Estelle, 695 F.2d 847, 852 (5th Cir.1983). The Eleventh Circuit has taken the opposite position and has held that Rose v. Lundy is not to be applied retroactively. Johnson v. Balkcom, 695 F.2d 1320, 1322 (11th Cir.1983).

7 . In Bergman v. Burton, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982) (order), the Supreme Court vacated the judgment below and ordered the court of appeals to further consider the case in light of Rose v. Lundy. The panel in Richards v. Solem, 693 F.2d 760 (8th Cir. 1982) cert. denied, — U.S. —, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983), found that the Court’s failure to order the petition dismissed shows that in some situations retroactive application of the total exhaustion rule is discretionary. In Bergman, however, the court of appeals had never reached the question of whether or not there was a mixed petition before them because the Supreme Court raised the issue sua sponte. Burton v. Bergman, 649 F.2d 428, 429, 432 (6th Cir.1981), vacated and remanded, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982) (order). On remand the court of appeals remanded the case to the district court for further consideration in light of Rose v. Lundy. Burton v. Bergman, 703 F.2d 559 (6th Cir.1982). On remand to the district court, the petitioner amended his petition to delete the issue the district court had previously held was unexhausted. The district court then granted the writ of habeas corpus with leave given to the government to re-try the petitioner. Burton v. Bergman, No. 78-71968 (E.D.Mich. Nov. 8, 1982). Thus, the petitioner, the district court, and the court of appeals all understood that Rose v. Lundy was to be applied retroactively. Even the Supreme Court dissenters in Bergman realized that the total exhaustion rule would have to be applied retroactively. As Justice Stevens wrote in dissent: “Under Rose v. Lundy — if I read the Court’s opinion correctly — after the case gets back to the District Court, that court must dismiss the habeas corpus petition that is now a part of the record.” Bergman, 456 U.S. at 954, 102 S.Ct. at 2028 (footnote omitted).

We realize that summary orders by the Supreme Court have less precedential value than full opinions. But these summary orders do exist as evidence of what the Supreme Court intended by issuing its Rose v. Lundy opinion in such simple, straightforward mandatory language. See Burns v. Estelle, 695 F.2d 847, 851 (5th Cir.1983).