*The HONORABLE CHARLES R. WOLLE, Chief Judge, United

States District Court for the Southern District of Iowa,

sitting by designation.

___________

No. 95-2801

___________

Clarence Victor, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Frank X. Hopkins, *

*

Appellant. *

___________

 Submitted: December 14, 1995

 Filed: July 19, 1996

___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE, District Judge. *

___________

BOWMAN, Circuit Judge.

Pursuant to 28 U.S.C. § 1292(b) (1994), the District Court has

certified the following question for our consideration: 

Can and should a federal district court in a federal habeas

corpus action involving the death penalty hold the federal case

in abeyance, retaining jurisdiction and maintaining the stay

against execution, to allow the petitioner to exhaust his state

remedies in a situation where it is unclear under state law

that state procedures are available to the petitioner to raise

his claims in state court?

We answer this question in the negative, holding that the proper course of

action for a district court in these circumstances is to
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dismiss the petition for a writ of habeas corpus, put the petitioner to his

state remedies, and lift the federal stay of execution.

I.

The evidence presented at Victor's trial in state court

overwhelmingly proved that on December 26, 1987, Victor murdered 82-yearold Alice Singleton in her home in Omaha, Nebraska, by slashing her throat

several times. Victor had been Singleton's gardener. A jury found Victor

guilty of first degree murder and use of a weapon to commit a felony. A

three-judge sentencing panel imposed the death penalty. On direct appeal,

the Nebraska Supreme Court affirmed Victor's conviction and the imposition

of the death penalty. State v. Victor, 457 N.W.2d 431 (Neb. 1990), cert.

denied, 498 U.S. 1127 (1991). Victor's effort at obtaining relief through

state post-conviction proceedings was similarly unsuccessful. State v.

Victor, 494 N.W.2d 565 (Neb. 1993), aff'd, 511 U.S. 1 (1994).

On September 2, 1994, Victor, representing himself, filed a petition

for a writ of habeas corpus, a motion for appointment of counsel, a motion

for a stay of execution, and a motion to proceed in forma pauperis. The

District Court, having jurisdiction to "entertain an application for a writ

of habeas corpus" pursuant to 28 U.S.C. § 2254 (1994), granted Victor's

motions for appointment of counsel and for a stay of execution and granted

in part his motion to proceed in forma pauperis. Victor's appointed

counsel filed an amended petition for a writ of habeas corpus on

January 17, 1995. In that petition, Victor makes numerous claims for

relief. Later, Victor realized that some of the claims in his amended

petition never have been presented to the Nebraska state courts either on

direct appeal or in post-conviction proceedings. Victor then requested the

District Court to hold his petition in abeyance and maintain the stay of

execution while he attempted to
 As discussed below, the state does not waive its defense that 1

Victor's new claims are procedurally defaulted because they were

not raised in his first state-court petition for post-conviction

relief.

-3-

raise these claims in a second state petition for post-conviction relief.

The District Court granted Victor's motion over the state's objection. 

In its order granting Victor's motion to hold his petition in

abeyance and maintain the stay of execution, the District Court certified

that the question set out above is "a controlling question of law as to

which there is substantial ground for difference of opinion" and "that an

immediate appeal from the order may materially advance the ultimate

termination of the litigation." Victor v. Hopkins, Mem. & Order at 20, No.

4:CV94-3263 (D. Neb. June 15, 1995) (quoting 28 U.S.C. § 1292(b) (1994)).

The state then petitioned this Court for permission to appeal the

interlocutory order of the District Court. We granted the petition, and

we thus have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(b).

II.

The state argues that the District Court abused its discretion when

it granted Victor's motion because both this Court and the Supreme Court

have held that federal courts must dismiss habeas petitions that include

both exhausted and unexhausted claims unless either the petitioner chooses

to proceed on his exhausted claims only or the state waives the requirement

of exhaustion. In this case, the state argues that it has waived

exhaustion and, to a certain extent, urges that the case proceed to a

decision on the merits. Victor argues that, under other precedents of

1

this Court, the District Court has the discretion to retain jurisdiction

over a habeas petition pending a petitioner's exhaustion of state-court

remedies and that the state's qualified waiver of the exhaustion
-4-

requirement is insufficient to allow the District Court to reach the merits

of his petition at this time. 

A.

As an initial matter, we must consider whether the state has waived

the exhaustion requirement. If the state's waiver was effective, the

question certified by the District Court would be moot. Exhaustion would

not be necessary, and the District Court could choose to continue its

proceedings on Victor's habeas petition rather than holding it in abeyance.

We conclude, however, that the state's waiver of the exhaustion requirement

was not effective.

The parties agree that Victor's petition includes some new,

unexhausted claims. In certain circumstances, a federal district court can

consider the merits of an unexhausted claim when the exhaustion requirement

has been waived by the state. See Hampton v. Miller, 927 F.2d 429, 431

(8th Cir. 1991). The decision to accept a waiver of the exhaustion

requirement is committed to the discretion of the district court. Id. We

have held that when the availability of a state procedure is in doubt,

federal courts "should be hesitant to accept State waivers of the

exhaustion defense." Duvall v. Purkett, 15 F.3d 745, 747 (8th Cir.), cert.

denied, 114 S. Ct. 2753 (1994).

In its brief, the state argues that it has waived the exhaustion

requirement. The District Court rejected that argument, holding that the

state did not waive the exhaustion requirement because the state retained

the right to argue that Victor's new claims for relief were procedurally

defaulted in state court. Victor v. Hopkins, Mem. & Order at 7 n.5, 11

n.6, No. 4:CV94-3263 (D. Neb. June 15, 1995). We agree with the District

Court's analysis of this issue. On the one hand the state argues that the

availability of a state-court procedure to address Victor's new
-5-

claims is uncertain; on the other hand, the state argues that Victor's new

claims have been procedurally defaulted in state court because he failed

to raise them in his first petition for post-conviction review. It seems

to us that the questions of whether Victor has an available state-court

procedure to raise his new claims and whether Victor has procedurally

defaulted those claims are one and the same. The state's brief reveals the

flaw in the state's argument:

In order to be "exhausted" a claim must be "fairly presented"

to [the state courts]. . . . That Victor has not done. . .

. 

Default . . . is the antithesis of "fair presentment". [sic]

It is the price a litigant pays for failure to "fairly present"

a claim within the procedural structures afforded by the state

courts.

Hopkins's Brief at 15. The state is willing to forego the requirement that

Victor fairly present his new claims to the state courts but wants to

penalize Victor for failing to fairly present his claims. The state's

purported waiver, as the District Court properly held, is not an

unqualified waiver of the exhaustion requirement, and the District Court

did not err when it refused to accept the state's waiver of the exhaustion

requirement.

Having held that the state has not effectively waived the exhaustion

requirement in this case, we now consider the proper procedure to be

employed by a district court when faced with a habeas petition that

includes both exhausted and unexhausted claims.

B. 

The District Court has asked us whether it has the authority to hold

in abeyance this petition for the writ of habeas corpus, thus retaining

jurisdiction over the case, while Victor attempts to
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exhaust his remedies in state court. This is a question of law that we

review de novo. 

The statute governing habeas procedures provides as follows:

An application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted unless it appears that the applicant has

exhausted the remedies available in the courts of the State, or

that there is either an absence of available State corrective

process or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner.

28 U.S.C. § 2254(b) (1994). The exhaustion requirement "is grounded

primarily upon the respect which federal courts have for the state judicial

processes and upon the administrative necessities of the federal

judiciary." Wade v. Mayo, 334 U.S. 672, 679 (1948). A federal court may

"properly intervene" only when "state remedies have been exhausted without

the federal claim having been vindicated" because state and federal courts

share the same responsibility to protect the constitutional rights of

criminal defendants. Id. We cannot assume that state courts fail to carry

out that responsibility. Id. It is the duty of this Court "to give

preference to such principles and methods of procedure as shall seem to

conciliate the distinct and independent tribunals of the states and of the

Union, so that they may co-operate as harmonious members of a judicial

system co-extensive with the United States, and submitting to the paramount

authority of the same constitution." Ex parte Royall, 117 U.S. 241, 252

(1886) (quoting Taylor v. Carryl, 61 U.S. (20 How.) 583, 595 (1858)).

"[O]nly `in rare cases where exceptional circumstances of peculiar urgency

are shown to exist'" will a federal court entertain an unexhausted claim

and thereby "interfere with the administration of justice in the state

courts." Ex parte Hawk, 321 U.S. 114, 117 (1944) (quoting United States

ex rel. Kennedy v. Tyler, 269 U.S. 13, 17 (1925)). Such circumstances

exist when, for
 We have explicitly recognized several exceptions to the

2

general rule stated in Rose v. Lundy that we believe are consistent

with the Supreme Court's opinion in that case. For example, we

have held that a district court may consider mixed petitions when

the unexhausted claims do not state claims for relief based on

federal constitutional rights and thus are not cognizable under 28

U.S.C. § 2254. See Martin v. Solem, 801 F.2d 324, 331 (8th Cir.

1986). We have also permitted a district court to dismiss a

petition with prejudice, rather than dismissing without prejudice

to later refiling, when the court concluded that the claims made in

the petition were frivolous. See Veneri v. Missouri, 734 F.2d 391,

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example, state remedies are inadequate or fail to "afford a full and fair

adjudication of the federal contentions raised." Id. at 118.

In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court applied

these principles to a case in which the habeas petition included both

exhausted claims and claims that had not been presented to a state court.

Justice O'Connor's opinion states at the outset that "[b]ecause a rule

requiring exhaustion of all claims furthers the purposes underlying the

habeas statute, we hold that a district court must dismiss such `mixed

petitions.'" Id. at 510. The petitioner then either may return to state

court to exhaust his claims or file an amended petition in federal court

including only exhausted claims. Id. The Court explicitly adopted a

"total exhaustion" rule, rejecting the precedents of this Court, such as

Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973), that had permitted

district courts to review exhausted claims rather than dismissing mixed

petitions. Rose, 455 U.S. at 522, 513 n.5. On the other hand, the Court

approved of our precedents, such as Triplett v. Wyrick, 549 F.2d 57, 59

(8th Cir. 1977), that required district courts to dismiss those mixed

petitions that included both exhausted and unexhausted claims. Rose, 455

U.S. at 519. The Court characterized its holding as "a simple and clear

instruction to potential litigants: before you bring any claims to federal

court, be sure that you first have taken each one to state court." Id. at

520.

Despite the apparent clarity of the holding of Rose v. Lundy, this

Court has not always required the dismissal of petitions containing

unexhausted claims. As the District Court noted in its 2
393 (8th Cir. 1984) (applying 28 U.S.C. § 1915(d)). Other

exceptions to the Rose v. Lundy rule include cases in which

exhaustion would be futile or cases in which the state has waived

the exhaustion requirement. See Duvall v. Purkett, 15 F.3d 745,

746 (8th Cir.), cert. denied, 114 S. Ct. 2753 (1994). None of

these exceptions, of course, is in play in this case. (We already

have held that the state has not waived the exhaustion requirement.

See supra part II.A.)

-8-

memorandum and order, and as the state acknowledges on appeal, we have,

"over time, both ordered abeyance and affirmed denial of a requested

abeyance in cases where `mixed' petitions were before the district courts."

Hopkins's Brief at 11. The certified question we here answer enables us

to untangle this thicket.

Victor has directed our attention to three cases in which we have

stated that district courts have discretionary authority to hold habeas

petitions in abeyance and maintain stays of execution pending exhaustion

of state remedies. In Collins v. Lockhart, we relied on Rose v. Lundy to

reverse the district court's denial of a habeas petition that contained

both exhausted and unexhausted claims. 707 F.2d 341, 344 (8th Cir. 1983).

In conclusory fashion, however, we stated that our remand to the district

court was "with instructions to retain jurisdiction and hold the case in

abeyance under the existing stay of execution pending Collins' prompt

presentation to the Arkansas Supreme Court of all his federal

constitutional claims." Id. In Collins, we recognized that after Rose v.

Lundy it clearly was not proper to deny a habeas petition merely because

of the presence of unexhausted claims, but we fashioned a course of action

without reference to the dismissal rule explicitly announced in Rose v.

Lundy. Our opinion does not contain any analysis of the issue nor does it

indicate whether the
 See also Simpson v. Camper, 927 F.2d 392, 393-94 (8th Cir.

3

1991) (holding, without citation to authority, that court of

appeals could hold habeas case in abeyance pending exhaustion when

it was unclear whether some claims are unexhausted), vacated, 974

F.2d 1030 (8th Cir. 1992). Both parties cited Simpson v. Camper in

their briefs. We discourage citation of any vacated case as

authority.

-9-

abeyance issue was briefed by the parties or a subject of controversy

between the parties.3

After Collins, we made at least three additional conclusory

statements, either in dicta or without independent analysis of the issue,

regarding the authority of a court to hold a mixed petition in abeyance.

Collins was cited as the sole authority for the proposition that a federal

court may retain jurisdiction and hold a petition in abeyance in Williams

v. Wyrick, 763 F.2d 363, 366 (8th Cir. 1985). The question before us in

Williams was whether a district court must retain jurisdiction pending

exhaustion. We held that the district court could dismiss a mixed

petition; thus we did not need to decide whether the court, in the first

instance, even had the discretion to retain jurisdiction. Despite our

statement that courts have such discretion, id., Williams does not contain

any independent analysis of the issue and, in any event, reaches a result

consistent with Rose v. Lundy: the mixed petition was dismissed. In

Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990), we again cited Collins

for the proposition that a federal court can hold a mixed petition in

abeyance pending exhaustion. Id. at 377. In Simmons, however, we were

considering whether counsel's failure to file a state post-convictionrelief petition constitutes sufficient cause for a prisoner's failure to

raise a claim in state court. We held that it did constitute sufficient

cause. Citing Collins, we rejected the district court's concern that the

federal habeas petition would have been dismissed and the stay of execution

lifted had counsel filed a petition for post-conviction relief in state

court. Id. The issue of the district court's authority to hold a petition

in abeyance pending exhaustion
-10-

thus was, at best, tangential to the issues before the court in Simmons,

and, as a result, the Simmons opinion contains no independent analysis of

a court's authority to take such actions.

Through our independent research, we have discovered one additional

case in which we noted the possibility of retaining jurisdiction while a

prisoner pursued unexhausted claims in state court. In Sloan v. Delo, 54

F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 116 S. Ct. 728 (1996), we

stated that "[i]f a federal court is unsure whether a claim would be

rejected by the state courts, the habeas proceeding should be dismissed

without prejudice or stayed while the claim is fairly presented to them."

In Sloan, however, the issue of the proper procedure to be followed in such

cases was not decided because we held that any further state proceedings

would be futile and thus proceeded to consider the petitioner's claims

without requiring the petitioner to attempt to exhaust his state court

remedies.

In contradistinction to Sloan and the cases cited by Victor, we have

repeatedly adhered to the command of Rose v. Lundy in other cases. See,

e.g., Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996); Mellott v.

Purkett, 63 F.3d 781, 784-85 (8th Cir. 1995); Ashker v. Leapley, 5 F.3d

1178, 1179-80 (8th Cir. 1993); Gray v. Hopkins, 986 F.2d 1236, 1237 (8th

Cir.) (per curiam), cert. denied, 114 S. Ct. 112 (1993); Shook v. Clarke,

894 F.2d 1496, 1497 (8th Cir. 1990) (modifying order of dismissal so that

dismissal would be without prejudice); Nottlemann v. Welding, 861 F.2d

1087, 1088-89 (8th Cir. 1988) (per curiam); Irwin v. Minnesota, 829 F.2d

690, 691 (8th Cir. 1987) (per curiam); Snethen v. Nix, 736 F.2d 1241, 1244,

1246 (8th Cir. 1984). These eight cases, however, have not clearly

presented the precise issue we here decide. In Williams v. Groose,

Mellott, Gray, Shook, Nottlemann, and Irwin, we were called upon to review

decisions in which the district courts had dismissed mixed habeas petitions

or required the petitioners to forego their unexhausted claims. In other

words, we only needed to decide
-11-

whether compliance with Rose v. Lundy was permissible -- an easy question,

indeed. In Ashker and Snethen, we reversed the district court's grant of

the writ and remanded with instructions to dismiss the habeas petition

without prejudice because it included both exhausted and unexhausted

claims. 5 F.3d at 1178-79; 736 F.2d at 1246. Our opinions do not indicate

whether any party argued that the case should have been remanded to allow

the district court to consider whether to dismiss the petition or hold it

in abeyance pending exhaustion. In this case, however, we are asked

explicitly to decide whether Rose v. Lundy leaves open the possibility of

a district court's retaining jurisdiction and holding a habeas case in

abeyance pending exhaustion rather than requiring dismissal. As far as we

can see, this Court never squarely has been presented with the precise

issue that now is before us in this case.

We conclude that any suggestion in our prior cases that a district

court has broad discretion to hold in abeyance a habeas petition including

both exhausted and unexhausted claims pending exhaustion of state remedies

is contrary to the Supreme Court's explicit directions in Rose v. Lundy.

Except for cases of the sort noted earlier, see supra note 2, a mixed

petition must be dismissed or the petitioner must elect to proceed on only

the exhausted claims. The District Court in this case, after considering

our prior cases, noted that Collins, Simmons, and Williams failed to

"articulate standards by which" the court could determine "whether holding

this case in abeyance and maintaining the existing stay of execution is

appropriate." Victor v. Hopkins, Mem. & Order at 19. We agree. Moreover,

we do not believe that Sloan and the cases cited by the District Court can

be squared with Rose v. Lundy. The correct view is represented by our line

of cases, cited earlier in this opinion, in which we have given recognition

to the clear teaching of Rose v. Lundy regarding the treatment of mixed

petitions. Accordingly, we hold that the District Court has no authority

to hold Victor's mixed petition in abeyance or to
 Justice Stevens dissented, arguing that dismissal of the

4

petition, the result he believed would be required by the Court's

order, would cause unwarranted delay. He noted that the

unexhausted claim was not addressed by the Sixth Circuit and was

not one of the issues raised in the petition for certiorari. Thus

the petitioner could refile his petition without the unexhausted

claim and the litigation would substantively be repeated right up

to the refiling of the very same certiorari petition that was

before the Court that day. Bergman v. Burton, 456 U.S. 953, 953-55

(1982) (Stevens, J., dissenting). Justice Stevens also dissented

from the Court's decision in Rose v. Lundy, 455 U.S. at 538-50, but

he nonetheless recognized what the rule in that case required:

dismissal of habeas petitions that include exhausted and

unexhausted claims. 

-12-

maintain the stay of execution. The choices stated in Rose v. Lundy are

the only options available to a habeas petitioner.

Our decision is bolstered by the Supreme Court's post-Rose v. Lundy

practice. The Court twice has granted certiorari in cases involving mixed

petitions and summarily disposed of them. In Duckworth v. Cowell, the

Court remanded the case to the Seventh Circuit and directed that court to

instruct the district court to dismiss the petition. 455 U.S. 996 (1982)

(mem.) (citing Rose v. Lundy, 455 U.S. 509 (1982)). In Bergman v. Burton,

the Court vacated the Sixth Circuit's decision and remanded the case for

further consideration in light of Rose v. Lundy. 456 U.S. 953 (1982)

(mem.). The Court has not wavered from the rule it announced in Rose v. 4

Lundy, consistently using mandatory language when describing that rule.

See Castille v. Peoples, 489 U.S. 346, 349 (1989) ("Respondent's habeas

petition should have been dismissed if state remedies had not been

exhausted as to any of the federal claims."); Teague v. Lane, 489 U.S. 288,

325 (1989) (Stevens, J., concurring) ("In Rose v. Lundy, 455 U.S. 509

(1982), the Court announced that a habeas petition containing exhausted and

unexhausted claims must be dismissed."); Engle v. Isaac, 456 U.S. 107, 124

n. 25 (1982) ("If [an unexhausted] claim were present, Rose v. Lundy, 455

U.S. 509 (1982), would mandate dismissal of the entire petition."); see

also Richards v. Solem, 693 F.2d 760, 763
-13-

 Cir Lundy a

ismiss a `mixed' petition."), , 461 U.S.

Romano v. Wyrick n.3 (8th Cir. 1982) ("

adopted s

In the present case, Victor argues that the state may execute hi

prior state-court remedies. The District Court

the state offers me no assurance that it will not s

Nebraska a death warrant if I lift the existing

 of execution. Thus, if I lift the stay . . . and th

state ecures a death warrant . . . I would undoubtedly b

face with another motion for a stay of execution, which 

would be required to grant.

, Mem. & Order at 19. Nothing in the record, however

ind that Nebraska state courts are without authority to grant (o

would litigates his claims in state court. To

ka statutes place authority to suspend the execution

 a death sentence in the 

Otey , 485 N.W.2d 153, 164 (Neb. 1992) (citing Neb. Rev. Stat

§§ s

 while federal constitutional claims are 

but have no reason to think that the Nebraska Supreme Court woul

countenance the execution of a prisoner in such circumstances any more tha

we d. , 763 F.2d at 366 (leaving question o

stay pending exhaustion to state courts because 

set stays existed). We certainly may

 assum r

 he is pursuing his state remedies. , 334 U.S. a

679.
-14-

III.

For the reasons stated, the judgment of the District Court is

reversed, and the case is remanded with directions to dismiss Victor's

petition for a writ of habeas corpus and to lift the stay of execution.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.