Rose v. Lundy – Oral Argument – October 14, 1981

Media for Rose v. Lundy

Audio Transcription for Opinion Announcement – March 03, 1982 in Rose v. Lundy

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Warren E. Burger:

We will hear arguments next in Rose against Lundy.

Mr. Zimmerman I think you may proceed whenever you are ready.

John C. Zimmermann:

May it please the Court, the State of Tennessee seeks review in this case of a judgment of the Court of Appeals from the Sixth Circuit affirming the judgment of the lower court which granted a writ of habeas corpus to Noah Lundy, ordering that he be released from his sentence unless he was retried within 90 days.

Following his direct appeal in which his convictions for rape and crime against nature were affirmed, Mr. Lundy sought state petition for post-conviction relief, and it was denied in the state court.

No appeal was taken.

Then, later, he petitioned for Federal habeas corpus review of four constitutional claims.

The first two claims had been presented to the state courts.

The second two claims had never been presented to any state court.

In our answer, the State of Tennessee objected to the review of the petition in the District Court on the ground that Mr. Lundy had not exhausted all his claims in available state remedies, he had not presented all his claims to the state courts, and therefore, the court, in accordance with the exhaustion requirement, should dismiss his habeas petition until such time as the state conviction and all the Federal constitutional claims which Mr. Lundy sought to raise were adjudicated finally and completely in the state courts.

Mr. Zimmermann, what do you make of the paragraph in Judge Morton’s opinion in the Joint Appendix on Page 88, where he says,

“Since Grounds 3 and 4 have not been presented to the state court, there has been no exhaustion of remedies as to those two. “

“Thus this court will not consider them in the constitutional framework. “

“However, in assessing the atmosphere of the cause taken as a whole, these items may be referred to collaterally? “

John C. Zimmermann:

Your Honor, his statement there, I think, presents to this Court and illustrates to this Court how it is difficult for a Federal court to separate the exhaustive and unexhaustive claims from habeas review, which frustrates the exhaustion requirement.

In this case, Your Honor, he correctly noted, in accordance with our contention, that Claims 3 and 4 had never been presented to the state court.

And here he said that he would not consider them in the constitutional framework.

However, he later says in his opinion that the four claims were… constituted such a mixture of constitutional violations that they could not be separated one from another.

He relied not only upon Claim Number 4, which was the instruction issue, but also the statement of the prosecutor set forth in Claim Number 3, which had never been presented to the state courts.

He used those to illustrate how Mr. Lundy had been denied his right to due process of law, together with the first two claims.

Not only did he do that, but he saw numerous others, a litany, actually, of statements by the prosecuting attorney that had never been presented in the petition, many of which had never been presented to the state courts.

He took this litany of remarks by the state prosecutor and said, look at all these remarks.

I find possible misconduct, and I find because of all this, because of all these remarks, he is entitled to habeas relief.

What we are asking this Court to do is to require that in cases like this, that a state prisoner proceed first all through the state courts, take all his Federal constitutional claims before he goes to the Federal courts, because, you see, in this case many of the constitutional claims, or many of the remarks which Judge Morton, the District Judge, found to be constitutionally defective, we submit, have been waived under state law.

No objection had been made as required by state evidentiary rules, procedural rules, and therefore, if the whole case and all the constitutional claims had been given to the state courts, our courts could have conducted whatever evidentiary hearings were necessary, they could have made–

You suggest they might have granted relief on the claims which were not made then but are made now?

John C. Zimmermann:

–Precisely, Your Honor.

The problem here is, the claims of prosecutorial misconduct… it was a different claim in the Federal court from what it was in the state court.

The identity of the claim, if you please, of prosecutorial misconduct was twofold in the state courts: Number One, whether or not this remark of Mr. Lundy’s violent character was constitutionally defective, and Number Two, in the state court, Mr. Lundy alleged, that the prosecutors had made disparaging remarks about his lawyer.

Now, those were the only two acts of prosecutorial misconduct presented to the state courts.

How does one go about separating out separate claims of prosecutorial misconduct?

What is it in the Federal Constitution that forbids prosecutorial misconduct?

John C. Zimmermann:

Well, it is a due process claim, essentially.

It could be other claims, such as a Fifth Amendment violation, where a prosecutor comments upon a defendant’s failure to take the stand, or it could trigger other constitutional rights, but under Donnelly it is a due process analysis.

Do you think that a claim in the Federal court, Federal habeas court, that my rights under the Fourteenth Amendment to the United States Constitution were violated would raise every single conceivable Federal constitutional right that a person had in a criminal trial?

John C. Zimmermann:

No, Your Honor.

I think the teaching under Picard v. Connor is this.

Give the state courts fair notice of what your constitutional complaint is, your Federal constitutional complaint is.

Tell them what your complaint is.

And that claim itself can be brought over to the Federal Courts, because then you have identified a specific constitutional violation, not requiring, of course, to cite book, chapter, and verse, but you have given the courts, state courts fair notice of what your complaint is.

Now, the lower Federal courts, for example, have found such claims as ineffective assistance of counsel to constitute different identity of claims, such as, there might be a conflict of interest in effective assistance of counsel, where a lawyer represented two defendants.

Yes, Your Honor?

Mr. Zimmermann, would you make the same argument if the two claims that… if there were two claims presented in a petition for habeas and they were wholly independent?

Say one was a Fifth Amendment claim, another a Sixth Amendment claim; one a compulsory incrimination claim and another a denial of jury trial or something, or denial of counsel, wholly independent.

One of them has been exhausted and the other hasn’t.

Would you say that the Federal judge should dismiss the entire case, or just say, sorry, but there is one thing here that isn’t exhausted, I will adjudicate the other?

John C. Zimmermann:

Yes, Your Honor, he should dismiss it and send it–

What, the whole thing?

John C. Zimmermann:

–The prisoner… exactly.

Remand the entire case back to the–

Well, what good would it do to remand the claim that has already been exhausted?

John C. Zimmermann:

–Well, you are remanding a case.

You have to understand, Your Honor, that we are submitting you are looking at a case on collateral review, and many claims, many constitutional claims–

I am not sure about that.

I think judges still look at habeas corpus petitions in terms of the claims they present, and if, for example, a claim is repeated that he has just ruled on, he doesn’t pay any attention to it.

John C. Zimmermann:

–Well, what we are trying to… what we are asking the Court to say is this.

If he brings the two claims, one is exhausted and one is not, he is still going to get prompt review of his Federal constitutional claims, if he is asked or sent to go back to the state courts, because the–

Well, he is not going to get prompt Federal review on one of them that he has already had heard in the state courts.

John C. Zimmermann:

–Well, he is going to get prompt review on the second one, and the state courts could grant relief, could discharge him from custody, give him a new trial.

But even more so, Your Honor, many times constitutional claims can be deemed harmless–

Why would you dismiss it?

Why don’t you just say he holds it?

John C. Zimmermann:

–Well, I would only say dismiss it because that is what the precedents of this Court say, when there has been non-compliance with the exhaustion requirements.

Well, we have never… this case wouldn’t be here if we had ruled on your claim before.

John C. Zimmermann:

Exactly, Your Honor.

Exactly.

But he is not prejudiced.

Whether you call it dismissal or whether you say we are just going to defer ruling on the whole case, what we are trying to ask the Court to do is say, look, in Federal courts you review a state conviction one time.

Bring all your Federal claims to Federal court one time.

Of course, there is protection–

Mr. Zimmermann, supposing as in this case he asserts four claims, the judge looks at it and thinks there is some substance to one or two of them, and appoints counsel for the prisoner, because these pleadings are drafted in a kind of crude way most of the time, and the lawyer looks at them and says, well, the two exhausted claims have merit, but I don’t think there is any merit to Claims 3 and 4, I would like leave to amend by dismissing those, 3 and 4, should the judge let him do it?

John C. Zimmermann:

–I think the Judge ought to let him do it, if what has happened–

Well, in your view, I thought he would have to dismiss, because there are unexhausted claims.

John C. Zimmermann:

–Well, in the Fifth Circuit, where they have this rule requiring complete exhaustion, the District Judges take careful… take careful pains, extra pains to make sure the prisoner knows that you might be barred from subsequent habeas litigation in Federal courts.

If the state prisoner says, no, these are frivolous claims, or no, these don’t have any merit whatsoever, for one reason or another, if he takes his chances with his exhausted claims, he is in effect saying, this is it.

Well, nobody would be hurt much by your rule.

If that is the rule, he will never put an exhausted claim in his first petition.

John C. Zimmermann:

That’s correct.

And then the Federal courts would have to, if there was a second petition–

Well, yes, exactly.

Well, they are still permitted.

John C. Zimmermann:

–That’s correct.

Mr. Zimmermann–

–They still are permitted, separate and independent–

–I gather the rule that you suggest Picard, perhaps, suggests, that is, that you ought not let the state prisoner inside the Federal courthouse door if he has Federal constitutional claims until he has tendered every one of them to the state courts–

John C. Zimmermann:

That’s correct.

–first to decide.

Isn’t that it?

John C. Zimmermann:

That’s correct, Your Honor.

That’s the rule you want.

John C. Zimmermann:

That’s correct, Your Honor.

John C. Zimmermann:

We are not saying that the Federal door of habeas review ought to be shut.

Not at all.

We defend the writ.

We support it.

What we want is that the state courts have the first opportunity to finally decide his criminal conviction under Federal–

Well, you would say then if he presents one claim to the Federal court after having exhausted it, and then later comes back with a wholly separate claim, which he has now exhausted, that the Federal court should not entertain his second petition at all, because he should have raised it in the first place.

John C. Zimmermann:

–Well, that would be a different situation.

That would be governed by Rule 9.

That situation is covered by the statement you just made.

Either present them all at once or that is all.

John C. Zimmermann:

A Federal District Judge could find there had been abuse of the writ by successive petition, or he could find–

The statutes as they presently are do not require–

John C. Zimmermann:

–That’s correct, Your Honor.

That’s correct.

–And our cases don’t support your suggested rule.

John C. Zimmermann:

But here in this case–

But you are suggesting that we ought to decide a case to that effect so that they can’t parlay this one after another.

John C. Zimmermann:

–Exactly, Your Honor.

What we are having now is that under the present situation where the Circuit Courts of Appeals have decided, the state courts in particular in this case, should Lundy… the granting of the writ be reversed, what we are being called upon to do is to litigate and relitigate, and a Federal judge many times having to look at the same transcript not once or twice, but three times, and this is particularly aggravated or made acute following the decision in Jackson v. Virginia, a very common… a very common claim for relief is sufficiency of evidence in the state courts, and now it is being more commonly made in the Federal courts.

And you take a claim of ineffective assistance of counsel, let’s say, and a claim of sufficiency of the evidence, and assuming the ineffective assistance of counsel has never been raised, and the Federal judge has to look at this multi-volume transcript to determine all these issues of sufficiency of the evidence.

Then–

Mr. Assistant Attorney General, when I practiced in Maryland a few years ago, there was this very simple way of handling this.

Any state judge who refused to entertain a writ of habeas corpus went to the penitentiary, and we got along fine.

No problem.

John C. Zimmermann:

–Your Honor, I think Tennessee’s record, the state courts in Tennessee’s record clearly establishes that we are very receptive and attentive to Federal constitutional claims.

In fact, after Fay v. Noia–

Well, on the other hand, what about the theory that you give each prisoner the right to file a piece of paper, which says, I want out for the following reasons, and put them all down, and anything that he doesn’t put down, they are gone.

Isn’t that what you are saying?

John C. Zimmermann:

–No, Your Honor.

It is different.

That is what I–

John C. Zimmermann:

Because that is a Rule 9 problem.

What we are saying is, if he puts down on that piece of paper five claims, and he thinks, I’ve got five complaints about the way my trial was run, and he has identified them–

–Right.

John C. Zimmermann:

–but he has only taken one to the state courts, what we are saying is, go back to the state–

I am talking about this paper in the state court.

That that is the end.

You file one piece of paper, and that is it–

John C. Zimmermann:

–In the state.

–so far as habeas corpus is concerned.

John C. Zimmermann:

If he files one piece of paper in the state courts and takes that one–

He can’t file any more.

Is that your position?

John C. Zimmermann:

–Not in Tennessee.

In Tennessee, he can file petitions for post-conviction or leave–

Right.

John C. Zimmermann:

–one after another.

They have no Rule 9 bar.

That is what I was wondering about.

Well, I understood your answer to me, Mr. Zimmermann, to apply only to a situation where he comes into the Federal court and he has, as you say, five Federal claims raised, and he has exhausted only one of them, that the Federal judge, even though that one had been exhausted in the state court, you are suggesting the Federal judge should turn him away until he goes back to the state courts for the other four and gets those determined by the state.

John C. Zimmermann:

That is correct, Your Honor.

That is your position.

John C. Zimmermann:

That is our position, and the reason for that is–

That doesn’t prevent his coming back with 6, 7, 8, and 9, if he has 6, 7, 8, and 9 later.

John C. Zimmermann:

–That’s correct.

What we are just saying is, if he knows on the front end that he has got five complaints, some of which are not exhausted, send him back to Federal court… rather, send him back to the state court.

If a hearing is required, we will conduct a hearing.

The record of Tennessee speaks for itself.

We have reversed numerous cases on Federal constitutional grounds, and our post-conviction procedure is more liberal, grants more rights to a prisoner than Federal collateral review, for this reason.

Not only do we review Federal constitutional claims, but also state constitutional claims, at a time when our Supreme Court is considering some rights for criminal defendants more broadly than the Federal counterpart.

John C. Zimmermann:

So, you see, sending him back to the state courts is not taking anything away from him.

It is telling him, look, let the state finally review your conviction.

There has got to be some finality.

And when a Federal court looks at a criminal conviction, a state criminal proceeding, we have got to know the states have looked at it all and said their last word, and in this case the claim of prosecutorial misconduct, I believe the record could have been more certain as to which claims could have been reviewed, which remarks could have been reviewed by the Federal court, particularly after Wainwright v. Sykes.

If our court had only had the opportunity to look at some of these claims, some of these remarks that Judge Morton relied upon in granting habeas relief, if our state courts could have looked at it, we could have either said, this is bad, we are going to grant this man a new trial, or if they could have said, these remarks and claims concerning these remarks are barred because of procedural default, and absent a showing of cause and prejudice, there would have been no Federal habeas review whatsoever.

Not only would a rule as we espouse today cut down the work load, I say, or make the haystack smaller when searching for the needle of the meritorious habeas petitioner, but asking the man, the prisoner to go back to state courts for his Federal constitutional claims also gives us the opportunity to write definitive state rulings, controlling state rulings to our lower court judges because, you see, decisions of Federal District Courts in Tennessee, and Courts of Appeals are not binding on our state trial courts.

They are persuasive authority, but they are not binding, but the decisions of our Tennessee Court of Criminal Appeals, if they decided the constitutional claims, our own state trial courts would be instructed by them, and guided by their decisions.

So, you see, the ultimate relief, the ultimate remedy to bring state trial courts and cause them to correctly decide Federal constitutional claims would be–

Is review of right in your Court of Criminal Appeals?

John C. Zimmermann:

–Yes, Your Honor.

There is an appeal of right in our Tennessee Court of Criminal Appeals, permissive review in the Tennessee Supreme Court.

Do your Federal judges in Tennessee follow the practice recently developed that in a criminal case the judge instructs counsel, both counsel that if there are any pretrial motions, they will all be made by a given date, and none will be entertained after that date in order to avoid parlaying them and delaying the trial?

Do they follow that rule?

John C. Zimmermann:

Yes, Your Honor.

In principle, is what you are arguing for essentially the same general kind of thing?

John C. Zimmermann:

Yes, Your Honor.

I suppose the kind of rule we are asking for is, there ought to be a stage of habeas analysis before we even look at the merits of each claim, and first, has he exhausted all his claims, and if he has, are any of them barred, and if he–

You mean, all of his claims that he presents in his petition.

John C. Zimmermann:

–That’s correct.

It is up to the prisoner which claims he puts in his petition, and we have no control over that.

But the point, the point is this, that the Federal courts, at this point, anyway, are looking at each individual claim, deciding these sometimes complex exhaustion questions on each individual claim before they start looking at the merits, and what is happening is this, and the scholars have pointed this out.

The Federal judges would rather jump over to the merits, look at the merits, particularly if it is rather cut and dry, and say, deny relief on the merits.

Mr. Zimmermann, let me ask you again on this case, assume the Federal judge, as apparently this judge did, thought there was substance to the two exhausted claims.

Then he looked at the other two claims, as they are here, and he looks at those and says, there is not a chance in the world any judge is going to find merit to the claim that this instruction is bad, that witnesses are generally presumed to tell the truth, that that somehow is a constitutional error.

He nevertheless under your rule has to send it back to have it exhausted even though he thinks it is a perfectly frivolous claim?

John C. Zimmermann:

Well, not precisely, Your Honor, and this is the reason why.

If a Federal District judge looked at a habeas petition, pro se litigants filed it, and he sees 1 and 2 have been exhausted, but 3 and 4 are so frivolous, they don’t even state habeas claims for relief–

Right.

John C. Zimmermann:

–the rules require him to dismiss those outright, strike those, and only consider the claims… what I am saying is this.

On the front end, before we even look at exhaustion, the rules of procedure contemplate that the Federal District judge will say, does any of this state a cognizable habeas claim before I order the state, before I order the state to answer?

John C. Zimmermann:

Now, that is what a Federal judge–

So he could have in this case, under your approach, dismissed Claims 3 and 4 as being on their face without merit–

John C. Zimmermann:

–Yes, Your Honor, under–

–and then gone ahead on 1 and 2, but I suppose when he goes ahead on 1 and 2, part of the review is the harmless error notion in your appellate court’s opinion, and in reviewing harmless error, I guess he would have to look at the whole record, wouldn’t he?

John C. Zimmermann:

–Yes, Your Honor.

In fact, one of your complaints is, he didn’t look at the whole record.

John C. Zimmermann:

Well, that was a matter that we were concerned about, that’s true but we submitted under the record that he had, he didn’t need the entire record in order to deny habeas relief, but if the Federal… if Judge Morton saw… I think there may be something there, I want to see the whole record, he could have ordered it to be expanded, but under this case, because of the many remarks relied upon by Judge Morton to grant habeas relief, and because of the fact that he said himself, these claims are so inseparable, they are such a mixture, I can’t separate them, this case should have been sent back to the state courts for them to look at these unexhausted claims, because, you see, our own state courts are going to have to look at the same record again, and if… and if, under the present analysis by most of the Federal Circuits, if Lundy loses… let’s say he lost in the District Court on the two exhausted claims, but he appealed, and while at the same time he appealed he comes over to our state courts and said, here is my unexhausted claims, look at them, well, I would submit that perhaps our state courts would probably abstain from ruling on the unexhausted claims until there is a final decision on the exhausted claims.

It seemed to me after reading the state court opinions that his chances of success on those two unexhausted claims were about one in nine million.

Isn’t that all the more reason why the state courts should be allowed to deal with it first?

John C. Zimmermann:

Yes, Your Honor.

I agree with the Chief Justice on that.

Don’t you agree with me, too, on his possibilities?

0 [Generallaughter.]

Those odds are pretty heavy.

John C. Zimmermann:

Well, Your Honor, let me be… let me say this.

There is no question that not all the claims were given at the state courts.

Secondly, there is no question that the proof in this case was undisputed.

Lundy never took the stand.

He never offered any defense.

And the state courts said, this overwhelming evidence… here you had a rape case where there was an eye witness present, not only the rape victim, but an eye witness, and all this evidence, including the defendant’s own post-arrest statement, all this evidence, they said, this is overwhelming, and for this reason we find these two little… two remarks of the prosecuting attorney to he harmless.

They weren’t given the opportunity to look at pervasive prosecutorial misconduct as the Tennessee Court of Criminal Appeals did in State v. Hicks this year, where they struck down and overruled a defendant’s conviction because of pervasive prosecutorial misconduct, on Federal constitutional grounds.

That case merely illustrates to the Court how they conduct their analysis under state law in applying Federal constitutional rights of due process with regard to prosecutorial misconduct.

Whether or not he has any chance at all, I don’t know.

I do know this, that if he goes to the state court, and the state court says he has waived all these things, he is barred from raising them, then I would submit to the court that those rulings by the state courts would be definitive and determinative on whether or not habeas review could even occur later in Federal court.

Mr. Zimmermann?

John C. Zimmermann:

Yes, sir.

You mentioned the Fifth Circuit opinion, Court of Appeals of the Fifth Circuit.

John C. Zimmermann:

Yes, Your Honor.

Do you recall the dissent in that case by Judge Roney?

John C. Zimmermann:

Yes, Your Honor.

What do you think of the rule that he would adopt?

In essence, as I recall, he would leave it to the discretion of the District Court to decide whether to send the case back to the state courts when in his opinion the interests of justice required that or made it desirable, but if the District Court went ahead and decided two of the four claims that you have been talking about, then the Court of Appeals would be duty-bound to review those, too.

John C. Zimmermann:

Well, I believe his opinion is based upon a notion that the exhaustion requirement is nothing more than a discretion to be applied at the discretion, if you please, of the District Court, and that is simply not the case.

The exhaustion requirement, we submit, operates as a prerequisite to habeas review, a precondition to habeas review.

It has never been, since 1948, anyway, a discretionary tool.

Well, didn’t Picard say that?

Didn’t Picard hold that?

John C. Zimmermann:

I don’t recall–

That it was not a discretionary rule?

I thought Picard held that.

No?

John C. Zimmermann:

–That it was not a discretionary–

Yes, that the exhaustion requirement is a requirement, period.

John C. Zimmermann:

–That is correct, and so did Pitches v. Davies, said it was a prerequisite to habeas–

But it doesn’t follow from that that you have to… that you can’t review the exhausted claims.

All that follows from that is that the claims that are unexhausted, you cannot adjudicate.

John C. Zimmermann:

–That is correct, but you see–

I mean, if the rule were otherwise, the case wouldn’t be here.

John C. Zimmermann:

–Well–

At least six or seven Courts of Appeals are against you.

John C. Zimmermann:

–That is correct.

And it may be just one or two that are on your side.

John C. Zimmermann:

Well, they are on our side partially.

Well, do you have any Court of Appeals on your side completely?

John C. Zimmermann:

Well, I think, Your Honor, what the Circuit Courts are laboring under is a misunderstanding that habeas review, that there is somehow something that requires immediate and prompt habeas review of a prisoner’s claim, and what we are saying is that you can’t just break a conviction off in little bits and pieces, and say, have a little bit now and a little bit later and come back through the revolving door again two years later, and a little bit more.

You want a rule.

If there are any unexhausted claims, it all goes back.

John C. Zimmermann:

That’s correct.

That could be easily applied not only by the District judges and magistrates, but also by Courts of Appeals.

The Sixth Circuit says, in its opinion which you are seeking to overturn here, says that the Fifth and the Ninth agree with you.

John C. Zimmermann:

That’s correct.

The Fifth and the Ninth agree with us with regard to how a District Court ought to apply it, but in the Fifth and Ninth Circuits, they say on appeal if the District Judge erroneously looks at the exhaustion claims, we will look at the exhaustion claims, too, and we don’t believe that a Court of Appeals should do that, any more than this Court has looked at, for judicial economy purposes, an unexhausted claim.

This Court has consistently and repeatedly said it doesn’t matter if everyone is granted relief, it doesn’t matter if this issue is of great national importance, if it hasn’t been exhausted, you go back to the state courts.

Does any Court of Appeal, if a habeas petition presents one exhausted claim and one unexhausted claim, does any Court of Appeals say that the District Court may hear them both, on the theory of some sort of a pendant claim?

John C. Zimmermann:

I am not aware of that, Your Honor.

All right.

John C. Zimmermann:

I am not aware of that.

Thank you.

Warren E. Burger:

Very well.

Mr. Smith?

D. Shannon Smith:

Mr. Chief Justice… excuse me… may it please the Court… excuse me… first let me make it perfectly clear that we have no argument with the exhaustion requirement.

We feel that Mr. Lundy properly exhausted the two claims upon which relief was granted in the District Court.

In fact, in the state’s answer to Mr, Lundy’s petition for writ of habeas corpus, the state admitted the exhaustion of the first two claims, and asked for dismissal of the latter two claims for failure of exhaustion of remedies.

You don’t agree with him on the flat rule he wants, though, do you?

D. Shannon Smith:

I disagree very strongly on the flat rule which he wants.

Well, what… then, at some point, I take it you will deal with it.

What is a Federal court doing with a case, with an issue which has not been exhausted, no matter how many other points have been exhausted?

Why should a Federal court be in that at all?

D. Shannon Smith:

In the case or in the unexhausted issue?

In his corpus case in the District Court.

D. Shannon Smith:

If the–

What is the reason for having a Federal district judge deal with an issue which has… on which no relief has been sought in the state courts?

D. Shannon Smith:

–Under the exhaustion requirement, the Federal District Courts should not deal with that issue, but if the petition presents along with that issue issues that have been presented to the state courts–

Well, you are overlooking the possibility that if the state court had been asked to deal with the unexhausted claim, the claim that was never presented, there might be no case in the Federal court.

D. Shannon Smith:

–That’s a possibility.

A very real possibility, isn’t it?

D. Shannon Smith:

And it is a possibility that we have to face.

However, in this particular case, the two exhausted… or the two unexhausted claims, which were not related to the exhausted claims were improper jury instruction and the prosecution’s comment on the defendant not taking the witness stand.

Well, Mr. Smith, let me ask you the same question I asked your opponent, and that is, what do you make of Judge Morton’s comment on Page 88 of the appendix that

“Since Grounds 3 and 4 have not been presented to the state court there has been no exhaustion of remedies to these two. “

“Thus this court will not consider them in the constitutional framework. “

“However, in assessing the atmosphere of the cause taken as a whole, these item’s may be referred to collaterally? “

D. Shannon Smith:

Your Honor, I believe he is saying that because these two, the latter two claims have not been exhausted, that the court cannot grant relief on those two claims.

However, in assessing the merits of the first two claims, and the State Court of Criminal Appeals of Tennessee also found merit in those claims, but found it harmless error, but the Federal court, in assessing those first two claims, had to look at the atmosphere of the trial as a whole, and that involved looking at the errors that were raised in the two unexhausted claims.

However, I don’t believe relief was granted on those two errors.

It was granted on the first two claims which were exhausted, prosecutorial misconduct and the limitation of cross examination.

But he did consider, certainly in his findings of fact and conclusions of law, a great deal of matter that would be subsumed under the unexhausted claims, did he not?

D. Shannon Smith:

That’s correct, but I believe he reviewed those and mentioned those to show their impact on the exhausted claims, making… substantiating his decision that this was not harmless error, but was prejudicial error.

Well, without them, then he may not have granted relief.

D. Shannon Smith:

Taking those… taking those two claims, the two exhausted claims on their own, isolated, perhaps not.

I don’t think he can isolate them.

He has got to look at them in the context of the trial in order to find whether they are harmless error.

That really means that they are inseparable, and that the whole thing should have been exhausted.

D. Shannon Smith:

No, Your Honor, I don’t believe that these claims are related.

Well, that means we throw away Picard then.

D. Shannon Smith:

I believe he has get to look at the exhausted claims in the context in which they occur, in order to decide whether it is harmless error or prejudicial error, and in looking at that context, he has to look at the whole trial, including those errors which were unexhausted, but nowhere does be say that he is granting relief.

In fact, he states just the opposite, that he will not consider the unexhausted claims in the constitutional framework.

But don’t his findings and conclusions strike you a little bit like the lines that,

“Julia, saying she’d never consent, consented? “

D. Shannon Smith:

Your Honor, if I had to write the opinion, I think it would have been written in somewhat different language.

I realize that it is difficult in reading the opinion to separate the claims.

Sometimes busy District judges don’t have time to write opinions as carefully as possible and your friend wants to give them more time by taking these cases away.

D. Shannon Smith:

Your Honor, I think the court considered what was put in front of it by Lundy and by the Petitioner in this matter.

I think it took the time, it reviewed the record that was placed in front of it.

He states in his opinion, the District Court judge, that he reviewed the record, and I think he wrote the opinion, and I think basically he granted relief on the two exhausted claims.

As I pointed out before, the Criminal Court of Appeals of Tennessee also found–

Do we know, Mr. Smith, when the state courts considered and decided the two exhausted claims, did they consider them in the context of the gloss put on by the other two claims?

Do we know that or not?

D. Shannon Smith:

–In the opinion written by the Criminal Court of Appeals of Tennessee, it does not appear that they did.

It appears that they were–

Were you in the case then, Mr. Smith?

D. Shannon Smith:

–No, Your Honor.

It appears that the two exhausted claims were considered together by the Court of Criminal Appeals of Tennessee.

But we don’t know whether they considered them with the gloss of the other two?

D. Shannon Smith:

I don’t believe they did.

Petitioner argues that if a petition for a writ of habeas corpus contains a mixture of exhausted and unexhausted claims, the entire petition must be dismissed without regard to the merits of the exhausted claims.

The prisoner must then leave his exhausted claims, which may be meritorious, sitting on the District courthouse steps and go back to the state courts with his unexhausted claims,–

Now, the basis of the proposition put forth by Petitioner, at least in his brief filed in this Court, was comity.

In the reply brief filed in this Court, he stated that the basis of this proposition was jurisdictional, that the District Court did not have jurisdiction to hear petitions which contained exhausted and unexhausted claims.

I don’t believe that this is the case.

If the Court wishes to pursue that matter, this is the case in which it is to be raised.

If it is the case, and if the Court feels so, I feel that both sides should be permitted to brief that jurisdictional issue.

As to the argument based on comity, again, we are in agreement with the exhaustion requirement.

28 USC 2254, Subsection C, requires exhaustion of state remedies as to the question presented before the Court can grant a writ of habeas corpus.

It does not require exhaustion of every question presented in a petition before a writ can be granted on the basis of an exhausted question contained in the petition.

When the rule was codified in 1948, it was designed to recognize the law as it existed at that time.

As it existed at that time, it referred to a question, a claim, individual.

There are no cases since then from this Court which apply that requirement in the manner requested by the Petitioner.

The Gooding case in 1972 and the Francisco case in 1974, in both those cases, this Court considered petitions which included mixed claims.

In this case, the state of Tennessee has had a full opportunity to review the two exhausted claims.

The policy served by the exhaustion requirement would not be furthered by requiring submission of the unexhausted claims to the state courts of Tennessee.

The conflict is already there between the state court and the Federal court.

The conflict is there on the two exhausted claims.

Sending the case back to the state court would produce one of two results.

Either the state court reaches the same result as the Federal court for a different reason, that being the unexhausted claim instead of an exhausted claim, or the state court goes through the futility of considering the two unexhausted claims, knowing full well that the District Court has already found… and the Circuit Court both have already found merit in the exhausted claims, and no matter what their ruling, the petition is going to be granted at some date in the future.

Inescapably, you’ve got two different courts, two different jurisdictions dealing with the same general set of complaints.

D. Shannon Smith:

Correct.

Not in a hierarchy of review court, but in effect the District Court becomes a reviewing court–

D. Shannon Smith:

That is correct.

–of the Supreme Court of the state.

D. Shannon Smith:

It is our position that neither result which may come about from sending this case back to the state court would promote comity, and in the meantime, Lundy remains in prison while he pursues his claims through the state court, claims in which he now has no interest, because he has had two claims which a District Court and a Circuit Court have found merit in.

He sits in jail and pursues his claims.

Comity does not demand the state court to go through the futile or the academic exercise of considering a case when the results of that case are already known.

As to the state itself, it suffers a disadvantage in the passage of time because it makes retrial more difficult at the time the writ is finally granted and a retrial ordered.

In his brief, the Petitioner states that the state courts would have applied a contemporaneous objection rule and refused to consider claims that could have been but were not presented on direct review of conviction.

The two unexhausted claims in this case were not presented on direct review of his conviction.

Were they preserved at the trial, objections, appropriate objections?

D. Shannon Smith:

No.

So there are two faults.

D. Shannon Smith:

Correct, and the state court, I am sure, would see those two faults immediately upon considering it.

Perhaps the District Court thought that through and realized the futility of sending those two unexhausted claims back to the state courts, to have them merely invoke a contemporaneous objection rule, meanwhile with the Petitioner sitting in jail.

Well, I take it you do recognize that the District judge relied to some extent on the unexhausted matters, to some extent anyway.

D. Shannon Smith:

He considered them.

Yes.

D. Shannon Smith:

He considered everything in front of him, and those–

Well, and you said in answer to my question that perhaps without them he might not have granted relief, and if that is true, if he presents the whole ball of wax to the state court again, perhaps the state court would grant him relief now that they wouldn’t have on his exhausted claims alone.

D. Shannon Smith:

–The state court had the entire trial transcript in front of it.

I know, but he wasn’t making these particular claims.

D. Shannon Smith:

He did not make those particular claims at that point.

Which he did in the Federal court.

D. Shannon Smith:

Okay.

When I say that perhaps without these unexhausted claims the District Court judge would not have granted relief, I perhaps did not explain myself very well.

In fact, I am quite sure I didn’t.

Had these–

At least you didn’t mean it.

D. Shannon Smith:

–Had these… not now, I didn’t.

Had these unexhausted claims not been Presented to the District Court, and the District Court had only these two exhausted claims to consider, I believe that in reviewing the record, the District Court would have considered those two exhausted claims in the light of what else went on, including these two unexhausted claims, even if they weren’t presented to it.

That is where I think the unexhausted claims come in.

It considers the exhausted claims in the light of the erroneous jury instruction, whether or not it was a claim, and in the light of the Attorney General’s comment on the defendant’s failure to testify.

I hope I have made myself a little clearer.

D. Shannon Smith:

I feel that the effect of the adoption of Petitioner’s view would be to overwhelm the state courts with consideration of after thought or frivolous claims, while the Federal court would be sitting on meritorious claims or else the meritorious claims would be sitting on the courthouse steps.

Meanwhile, the prisoner remains–

Well, isn’t that a rather persuasive reason to require them to be put all in one bag and delivered to one court at one time?

D. Shannon Smith:

–Your Honor, that would be a nice way to have it.

Well, is there any logical reason why we shouldn’t have that “nice way”?

D. Shannon Smith:

We are dealing, and we have to remember, the majority of these petitions are filed pro se by men who are uneducated in the law, and possibly uneducated, period.

The idea has been put forth that these uneducated men can use the law in order to orchestrate their claims so as to always have a couple sitting back here in case these get turned down, and they can keep coming back and coming back.

This Court in 1976 adopted a form for use in these cases.

It was the form that Lundy used in this case.

It is a pre-printed form.

When you say “this Court”, you mean the District Court?

D. Shannon Smith:

No, Your Honor, this Court, the Supreme Court.

And in connection with the Rules of Civil Procedure.

D. Shannon Smith:

Correct.

It contains in that form instructions.

Number 6 of that instruction reads, and I quote… this is in the Appendix at Page 66…

“Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction. “

To an uneducated man, who has probably never heard of the exhaustion requirement, let alone mixed claims presented in a petition, who is trying to follow directions, when he sees that, he is going to put down every claim he can think of.

He is not a man who has gone through trial with the benefit of legal experience, able to Dick out an error here and an error there.

Sometimes it may be years after that somebody, a cellmate tells him about what happened at his trial that was error, or something–

Right, or he read something in the newspaper.

D. Shannon Smith:

–Yes, it comes to light to him.

So the form is a trap.

D. Shannon Smith:

If the Court–

It doesn’t say present every claim that you have already presented to a state court.

D. Shannon Smith:

–No, it goes into a caution later in the form about having exhausted claims, but if the Court adopts the rule saying that mixed petitions must be dismissed, then this form is a trap.

That is correct.

You are aware, I am sure, that there are districts in which there are litigants of this category who have filed 50, 75, 100, or several hundred petitions seriatim over a period of time.

D. Shannon Smith:

I am aware of that.

Each one of which had to be separately dealt with by a Federal District judge.

D. Shannon Smith:

I am aware.

Your Honor, I think that Rule 9(B) and the Code Section 2244 give the District Courts ammunition to deal with something like that, and I don’t feel that because some people have abused the writ, that we should take the man who has a meritorious claim and say, you’ve only got one shot at this, and you are going to sit in jail until you put everything through the state Courts, all these possible claims, before you can come to the Federal District Court.

I feel that is denying him access to the courts.

As to the restriction of cross examination of the complainant witness, that one error in itself I feel would call for granting of the writ.

Everything else set aside, the right of cross examination is so vital, especially in a case like this, to the guarantee of a free trial, that the denial of that restriction is prejudicial error.

This Court has found so in the Alford case.

There is reference made in the Petitioner’s brief to a jury-out hearing.

And that claim was exhausted.

D. Shannon Smith:

That claim was exhausted, and it was so admitted in the state’s answer.

There was reference to a jury-out hearing where some of these questions were posed to the complainant witness, but a jury… or a hearing… a cross examination outside the trier of the fact is of absolutely no value.

The jury has a right to see that witness when she is asked that question and when she answers that question.

Can she look them in the eye?

Does she hesitate?

Does she… they have a right to observe her demeanor.

And that issue alone, I think, calls for the granting of the writ.

In closing, the writ of habeas corpus is designed to give relief to those unjustly imprisoned.

It is a fact.

I stated before, that most of these petitioners file these pro se, and most petitioners are uneducated, at least in the law.

The exhaustion rule as treated by the court is a law of timing.

It is not a rule of jurisdiction.

It is not and neither is it meant to he an obstacle to be put in the path of a prisoner who is imprisoned unjustly, and merely to say that because there are those who file frivolous claims, we must deal more harshly with those who have meritorious claims.

I don’t feel that is the correct way to interpret the law.

There are two courts now that have found merit in Lundy’s petition.

We ask this Court to affirm the decision below.

Thank you very much.

Warren E. Burger:

Do you have anything further?

There is only one minute remaining.

John C. Zimmermann:

No, Your Honor.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.