2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-2009

Sharrieff v. Cathel

Precedential or Non-Precedential: Precedential

Docket No. 07-1156

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Recommended Citation

"Sharrieff v. Cathel" (2009). 2009 Decisions. Paper 880.

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1156

 

JIHAD ABDULLAH SHARRIEFF,

 Appellant

 v.

RONALD H. CATHEL, ADMINISTRATOR;

THE ATTORNEY GENERAL OF THE STATE

OF NEW JERSEY PETER C. HARVEY

 

 

On Appeal from the United States District Court

for the District Court of New Jersey

District Court No.05-cv-04525

District Judge: The Honorable Jose L. Linares

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 24, 2009
The Honorable Jane A. Restani, Chief Judge of the *

United States Court of International Trade, sitting by

designation.

We refer to Ronald H. Cathel and the Attorney General 1

of the State of New Jersey collectively as the “State”.

2

Before: BARRY, SMITH, Circuit Judges

and RESTANI, Judge.

*

(Filed: July 30, 2009)

 

 OPINION

 

SMITH, Circuit Judge.

Appellant Jihad Abdullah Sharrieff unsuccessfully

petitioned the District Court for habeas relief based on an

alleged violation of his Sixth Amendment rights under Blakely

v. Washington, 542 U.S. 296 (2004). Because the State admits 1

that a Blakely violation occurred, this appeal turns on the

resolution of one issue: whether the State expressly waived the

exhaustion requirement under 28 U.S.C. § 2254(b)(3) when it

conceded exhaustion before the District Court. We hold that it

did. Accordingly, we will reverse the District Court’s decision

in part, and remand with instructions to grant Sharrieff’s petition

for habeas relief so that he may be resentenced in state court on
The Appellate Division remanded the case for entry of 2

an amended judgment to correct merger errors that are not at

issue in this appeal.

3

his two robbery convictions.

I.

Sharrieff was convicted in the Superior Court of New

Jersey of charges stemming from the armed robbery of two

individuals and the murder of a third. He was sentenced to a

total term of imprisonment of life plus forty years with a sixtyfour-year parole bar. On April 8, 2004, the Superior Court of

New Jersey, Appellate Division, denied Sharrieff’s appeal of his

convictions and sentences for committing the robberies and the

murder.2

On June 24, 2004, the United States Supreme Court

issued its decision in Blakely v. Washington. On January 5,

2005, Sharrieff filed two documents with the Supreme Court of

New Jersey: 1) a motion for leave to file a notice of petition for

certification nunc pro tunc, and 2) a letter-petition for

certification that argued, for the first time, that his sentences

were imposed in violation of Blakely. The Supreme Court of

New Jersey granted Sharrieff’s motion for leave to file a notice

of petition for certification as within time, but denied his

petition for certification.
4

Following the Supreme Court of New Jersey’s denial,

Sharrieff petitioned the District Court for habeas relief without

first seeking post-conviction relief in state court. In his federal

habeas petition, Sharrieff raised, inter alia, a claim that his

sentences were imposed in violation of Blakely. In its answer,

the State “emphasize[d] that petitioner has received a full, fair

and adequate hearing by the New Jersey State Courts with

respect to all of the issues raised.” Specifically addressing

Sharrieff’s Blakely claim, the State noted that Sharrieff did not

raise it prior to his petition for certification, but concluded that

it “appears that [Sharrieff] has exhausted his state court remedy

as to this issue, since he presented it to the state’s highest court

in his petition for certification.”

The District Court denied Sharrieff’s habeas petition on

its merits and refused to issue a certificate of appealability. We

issued a certificate of appealability to determine whether the

sentences for Sharrieff’s two robbery convictions were imposed

in violation of Blakely. We denied Sharrieff’s request for a

certificate of appealability as to all other issues.

II.

The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 2241 and 2254, and we have jurisdiction under 28 U.S.C. §§

1291 and 2253. Since the District Court ruled on Sharrieff’s

habeas petition without an evidentiary hearing, our review of its

decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50
According to N.J. Ct. R. 2:12-4, 3

Certification will be granted only if the appeal

presents a question of general public importance

which has not been but should be settled by the

Supreme Court or is similar to a question

5

(3d Cir. 2002). “Thus, we will review the state courts’ decisions

applying the same standard as the District Court.” Id. Here,

since no state court has adjudicated the merits of Sharrieff’s

Blakely claim, we will review pure legal questions and mixed

questions of law and fact de novo, but will presume the

correctness of any factual determinations that the state courts

have made. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir.

2001).

III.

Both Sharrieff and the State agree that the sentences for

his robbery convictions were imposed in violation of Blakely.

But “[w]ithout an express waiver by the state, a federal court is

allowed under 28 U.S.C. § 2254(b)(1)(A) to grant a state

prisoner’s habeas petition only if the petitioner has exhausted all

available state remedies.” Bronshtein v. Horn, 404 F.3d 700,

725 (3d Cir. 2005). Here, it is clear that Sharrieff has not

exhausted all available state remedies. He does not dispute the

State’s assertion that he could obtain relief through state postconviction proceedings. And since the Supreme Court of New

Jersey exercises discretionary review, N.J. Ct. R. 2:12-4, it was 3
presented on another appeal to the Supreme

Court; if the decision under review is in conflict

with any other decision of the same or a higher

court or calls for an exercise of the Supreme

Court’s supervision and in other matters if the

interest of justice requires. Certification will not

be allowed on final judgments of the Appellate

Division except for special reasons.

In Castille, the Court recognized exceptions to this 4

general rule “where the State has actually passed upon the claim,

. . . and where the claim has been presented as of right but

ignored (and therefore impliedly rejected) . . . .” 489 U.S. at

351. Neither of those exceptions apply here.

6

not enough for Sharrieff to assert, for the first and only time in

state court, his Blakely claim in his petition for certification. See

Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that “the

submission of a new claim to a State’s highest court on

discretionary review” does not constitute a fair presentation of

that claim for exhaustion purposes). Therefore, even though 4

the State concedes that relief is warranted on the merits of his

Blakely claim, we must deny Sharrieff’s habeas petition unless

the State has expressly waived the exhaustion requirement. See

Bronshtein, 404 F.3d at 725.

The express waiver requirement is mandated by statute.

See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to

have waived the exhaustion requirement or be estopped from
7

reliance upon the requirement unless the State, through counsel,

expressly waives the requirement.”). Under Section 2254(b)(3),

an express waiver requires more than just the failure to raise

exhaustion as a defense. See Lambert v. Blackwell, 134 F.3d

506, 514 (3d Cir. 1997) (noting that since the Antiterrorism and

Effective Death Penalty Act was passed, “a district court may no

longer infer that a state has waived the nonexhaustion defense

from its failure to invoke the defense expressly”). Section

2254(b)(3), however, does not specify what constitutes an

“express[] waive[r].”

Five other courts of appeals have reached this issue.

D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008); Pike v.

Guarino, 492 F.3d 61 (1st Cir. 2007); Kerns v. Ault, 408 F.3d

447 (8th Cir. 2005); Dorsey v. Chapman, 262 F.3d 1181 (11th

Cir. 2001); Bledsue v. Johnson, 188 F.3d 250 (5th Cir. 1999).

Four of these courts have held a state’s concession of exhaustion

before the District Court to be an express waiver of the

exhaustion requirement under Section 2254(b)(3). Pike, 492

F.3d at 71–73; Kerns, 408 F.3d at 449 n.3; Dorsey, 262 F.3d at

1186–87; Bledsue, 188 F.3d at 254. The fifth court, the Sixth

Circuit, has concluded that a state can expressly waive the

exhaustion requirement by acting in a manner consistent with

the District Court’s stated understanding that the state had

conceded exhaustion. See D’Ambrosio, 527 F.3d at 496 (“This

is an extraordinary case in which the district court stated that it

understood exhaustion to be a non-issue and that the [state]

would not later assert it, the [state] failed to correct what the
8

district court clearly viewed as the [state]’s position during the

almost four years of litigation before that court, and the [state]

went on to state to the district court that [the petitioner]’s claims

would be untimely in the state courts (thereby confirming the

district court’s understanding).”).

Here, the State would have us reach a decision contrary

to those of our sister circuits. It points to George v. Sively, 254

F.3d 438 (3d Cir. 2001), where we refused to deem exhaustion

expressly waived even though “the United States Attorney has

argued that we should hear [the petitioner’s] appeal and should

not require [the petitioner] to exhaust his territorial remedies.”

Id. at 441 n.4. It argues that this language requires us to hold a

concession in an answer insufficient to expressly waive the

exhaustion requirement. We do not agree. George concerned

whether a petitioner convicted of territorial offenses in the

District Court of the Virgin Islands could collaterally attack his

conviction and sentence under 28 U.S.C. § 2255. Id. at 440–41.

There, the government asserted that the petitioner “was entitled

to proceed under § 2255 and was not required instead to exhaust

his territorial remedies.” Id. at 441. This means that the

government’s position was that Section 2254 did not apply.

Accordingly, when the government “argued that we should hear

[the petitioner’s] appeal and should not require [the petitioner]

to exhaust his territorial remedies,” it was not conceding that

Section 2254’s exhaustion requirement had been satisfied;

instead, it was claiming that the requirement need not be met at

all. Since there was no concession of exhaustion, George does
9

not control the present case.

A “waiver is the ‘intentional relinquishment or

abandonment of a known right.’” United States v. Olano, 507

U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)). To be express, a waiver of exhaustion must be

clear, explicit, and unambiguous. See D’Ambrosio, 527 F.3d at

495 (“Courts also generally agree that ‘express’ is synonymous

with ‘clear’ or ‘unambiguous.’”); Pike, 492 F.3d at 72 (“It is

hornbook law that waivers of exhaustion will not lightly be

inferred but, rather, must be clear and explicit.”); Dorsey, 262

F.3d at 1187 (“[T]he state’s explicit waiver of [the

nonexhaustion] defense before the district court forecloses it

being asserted here.”); see also Webster’s Third New Int’l

Dictionary 803 (1966) (defining “express” as “directly and

distinctly stated or expressed . . . not dubious or ambiguous . . .

definite, clear, explicit, unmistakable . . .”). Here, the State

conceded exhaustion before the District Court by stating in its

answer to Sharrieff’s habeas petition that it “appears that

[Sharrieff] has exhausted his state court remedy as to [the

Blakely] issue, since he presented it to the state’s highest court

in his petition for certification.” The fact that the State based its

concession on a flawed legal conclusion is of no consequence;

its concession clearly, explicitly, and unambiguously

relinquished and abandoned its right to assert the nonexhaustion

defense. That is enough to expressly waive the exhaustion

requirement under Section 2254(b)(3). See Kerns, 408 F.3d at

449 n.3 (holding that the state expressly waived the exhaustion
We acknowledge that our holding is contrary to Dreher 5

v. Pinchak, 61 F. App’x 800 (3d Cir. 2003). Dreher, however,

was an unpublished and not precedential opinion.

In Pike, the First Circuit held that “[a] federal court may 6

choose, in its sound discretion, to reject a state’s waiver of . . .

nonexhaustion . . . .” See Pike, 492 F.3d at 74. Assuming that

we had such discretionary power, we would not exercise it here.

The State admits that a Blakely violation occurred and that

Sharrieff is entitled to be resentenced on his two robbery

convictions. Under these circumstances, “it is evident that a

miscarriage of justice has occurred,” and it is appropriate to

reach the merits of Sharrieff’s petition “in order to avoid

unnecessary delay in granting relief that is plainly warranted.”

Granberry v. Greer, 481 U.S. 129, 135 (1987).

Nonetheless, neither party has briefed whether we have

the discretion to reject the State’s express waiver of exhaustion.

Since resolution of this issue would not affect our decision here,

we leave it for another day.

10

requirement with a concession in its district court briefing, even

though the concession was made in error); Dorsey, 262 F.3d at

1187 (concluding that the state expressly waived the

nonexhaustion defense where the state, based on a mistaken

belief, expressly declined to raise the defense in its answer to the

federal habeas petition). Therefore, we may reach the merits of 5

Sharrieff’s habeas petition, and will grant him the uncontested 6

relief that he seeks.
11

IV.

Section 2254(b)(3) requires that a state’s waiver of

exhaustion be express, but it does not demand the invocation of

any “magic words.” Here, by conceding exhaustion in its

answer to Sharrieff’s habeas petition, the State clearly,

explicitly, and unambiguously waived the exhaustion

requirement. Both parties agree that, on the merits of his

petition, Sharrieff is entitled to be resentenced on his two

robbery convictions. Accordingly, we will reverse the District

Court’s decision in part, and remand with instructions to grant

Sharrieff’s habeas petition so that he may be resentenced on

those two convictions.