### *The H ONORABLE CHARLES R. WOLLE, Chief Judge, Unite d

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.

Pursua nt to 28 U.S.C. § 1292(b) (1994), the District Court ha s certified the following question for our consideration:

Can and should a federal district court in a federal habea s corpus action involving the death penalty hold the federal case in abeyance, retaining jurisdiction and maintaining the sta y against execution, to allow the petitioner to exhau st his state remedie s in a situation where it is unclear under state la w that state procedures ar e 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

### -2-

dismiss the petition for a writ of habeas corpus, put the petitioner to hi s state remedies, and lift the federal stay of execution.

I.

The evidence presented at Victor's trial in state cour t overwhelmingly provedthat on December 26, 1987, Victor murdered 82-yearold Alice Singleton in her home in Omaha, Nebras ka, by slashing her throat several times. Victor had been Singleton's gard ener. 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 p enalty. On direct appeal, the Nebraska Supreme Court affirmed Victor's con viction 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 a t 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, repres enting himself, filed a petition for a writ of habeas corpus, a motion for appoin tment 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 wri t of habeas corpus" pursuant to 28 U.S.C. § 2254 (1994), granted Victor' s motions for appointment of counsel and for a sta y of execution and granted in p art his motion to proceed in forma pauperis. Victor's appointe d
co unsel filed an amended petition for a writ of habeas corpus o n January 17 , 1995. In that petition, Victor makes numerous claims fo r relief. Later, Victor realized that some of the claims in his amende d petition never have b een presented to the Nebraska state courts either on direct appeal or in post-conviction proceedings. Victor then requested th e 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 wa ive its defense that 1 

### Victor 's new claims are procedurally defaulted because they wer e not ra ised in his first state-court petition for post-convictio n relief.
-3- raise these claims ina 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 i n abeyance and maintainthe stay of execution, the District Court certified that th e question set out above is "a controlling question of law as t o which there is substa ntial ground for difference of opinion" and "that an immedi ate appeal from the order may materially advance the ultimat e 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 s tate then petitioned this Court for permission to appeal th e 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 eit her the petitioner chooses to proceed on his exhausted claims only or the state waives the requiremen t of exhaustion. In this case, the state argues that it has waive d exh austion and, to a certain extent, urges that the case proceed to a decision on the merits. Victor argues that, under other precedents o f 1 this Court, the District Court has the discretion to retain jurisdiction
over a habeas petition pending a petitioner's exhaustion of state-cour t remedies and that the state's qualified waiver of the exhaustion

### -4-

requirement is insufficient to allow the District Court to reach the merit s of his petition at this time.

A.

As an ini tial matter, we must consider whether the state has waived the exh austion requirement. If the state's waiver was effective, th e question certified by the District Court would be moot. Exhaustion would not be nec essary, and the District Court could choose to continue it s proceedings on Victor's habeas petition rather than holding it in abeyance

. We conclude, however, that the state's waiver of the exhaustion requiremen t was not effective.

The par ties agree that Victor's petition includes some new , unexhausted claims. In certain circumstances, a federal district court ca n consider the merits of an unexhausted claim when the exhaustion requiremen t has b een waived by the state. See Hampton v. Miller , 927 F.2d 429, 43 1 (8th Cir. 1991). The decision to accept a waiver of the exhaustio n requirement is committed to the discretion of th e district court. Id. We have held that when the availability of a state procedure is in doubt , feder al courts "should be hesitant to accept State waivers of th e 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 exhaustio n requirement. The Dis trict Court rejected that argument, holding that the state did not waive t he exhaustion requirement because the state retained the right to argue that Victor's new claims for relief were procedurally defau lted in state court. Victor v. Hopkins , Mem. & Order at 7 n.5, 1 1 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 stat e 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-cour t procedu re to raise his new claims and whether Victor has procedurall y defaulted those claims are one and the same. The state's brief reveals th e 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 "fai rly present" a claim within the proce dural structures afforded by the state courts.
Hopkins's Brief at 15. The state is willing to forego the requirement tha t Vic tor fairly present his new claims to the state courts but wants t o penal ize Victor for failing to fairly present his claims. The state' s pu rported waiver, as the District Court properly held, is not a n 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 e ffectively waived the exhaustion requ irement in this case, we now consider the proper procedure to b e employed by a district court when faced with a habeas petition tha t includes both exhausted and unexhausted claims.

B.

The District Court has asked us whet her it has the authority to hold in abeyance this petition for the writ of habeas corpus, thus retainin g jurisdiction over the case, while Victor attempts to

### -6-

exhau st his remedies in state court. This is a question of law that w e 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 cour t shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of t he State, or that there is either an absence of available State corrective proce ss or the existence of circumstances rendering suc h process ineffective to protect the rights of the prisoner.

28 U .S.C. § 2254(b) (1994). The exhaustion requirement "is grounde d primarily upon the respect which federal courts have for the state judicia l proces ses and upon the administrative necessities of the federa l judiciary." Wade v. Mayo , 334 U.S. 672, 679 (1948). A federal court may "properly intervene" only when "state remedies h ave been exhausted without the federal claim having been vindicated" becaus e state and federal courts share the same responsibility to protect the constitutional rights o f criminal defendants. Id. We cannot assume that state courts fail to carr y
ou t that responsibility. Id. It is the duty of this Court "to giv e preference to such principles and methods of procedure as shall seem t o conciliate the distinct and independent tribunal s of the states and of the Union , so that they may co-operate as harmonious members of a judicia l system co-extensive with the United States, and submitting to the paramoun t authority of the same constitution." Ex parte Royall , 117 U.S. 241, 252 (1886) (qu oting Taylor v. Carryl , 61 U.S. (20 How.) 583, 595 (1858))

. "[O]nly `in rare cases where exceptional circums tances 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 stat e 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 circumstance s exist when, for

### We have explicitly recognized several exceptions to th e 2 

### general rule stated in Rose v. Lundy that we believe are con sistent with the Supreme Court's opinion in that case. For example, w e 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,
-7- example, state remedi es are inadequate or fail to "afford a full and fair adjudication of the federal contentions raised." Id. at 118.

In Ros e v. Lundy , 455 U.S. 509 (1982), the Supreme Court applie d these prin ciples to a case in which the habeas petition included bot h 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 rul e requir ing exhaustion of all claims furthers the purposes underlying th e habea s statute, we hold that a district court must dismiss such `mixe d 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 permitte d distri ct courts to review exhausted claims rather than dismissing mixe d 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, 5 9 (8th Ci r. 1977), that required district courts to dismiss those mixe d petitions that includ ed 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 federa l court, be sure that you first have taken each on e to state court." Id. at 520.
Despite the apparent clarity of the holding of Rose v. Lundy , thi s Court has not always required the dismissal of petitions containin g unexhausted claims. As the District Court noted in its 2

### 393 (8th Cir. 1984) (applying 28 U.S.C. § 1915(d)) . Othe r

exceptions to the Rose v. Lundy rule include cases in whic h exhaustion would be futile or cases in which the state has waived the exhaustion requirement. See Duvall v. Purkett , 15 F.3d 745 , 746 (8 th Cir.), cert. denied , 114 S. Ct. 2753 (1994). None o f these exceptions, of course, i s in play in this case. (We already have held that the state has not waived the exhaustion requi rement. See supra part II.A.)
-8- memorandumand order, and as the state acknowledges on appeal, we have , "ove r time, both ordered abeyance and affirmed denial of a requeste d 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 hav e stated that district courts have discretionary authority to hold habea s petitions in abeyance and maintain stays of execution pending exhaustion of state remedies. I n Collins v. Lockhart , we relied on Rose v. Lundy to
rev erse the district court's denial of a habeas petition that containe d 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 abeyan ce under the existing stay of execution pending Collins' promp t presen tation to the Arkansas Supreme Court of all his federa l constitutional claims." Id. In Collins , we rec ognized 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 fa shioned a course of action wit hout reference to the dismissal rule explicitly announced in Rose v
. Lundy . Our opinion does not contain any analysi s of the issue nor does it indicate whether the

### See a lso Simpson v. Camper , 927 F.2d 392, 393-94 (8th Cir

. 3 

### 1991) (holding, without citation to authority, that court o f 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. Ca mper in their briefs. We discourage citation of any vacated case a s authority.
-9- abeyance i ssue was briefed by the parties or a subject of controvers y between the parties. 3

After C ollins , we made at least three additional conclusor y statements, either indicta 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 juri sdiction and hold a petition in abeyance in Williams

v. Wyrick , 763 F.2d 363, 366 (8th Cir. 1985). The question before us in Willia ms was whether a district court must retain jurisdiction pendin g exh austion. We held that the district court could dismiss a mixe d petition; thus we did not need to decide whether the court, in the first instance, even had the discretion to retain jurisdiction. Despite ou r statement that courts have such discretion, id. , Williams does not contain any independent analy sis of the issue and, in any event, reaches a result

con sistent with Rose v. Lundy : the mixed petition was dismissed. I n 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 i n abeyance pending exhaustion. Id. at 377. In Simmons , however, we wer e
cons idering whether counsel's failure to file a state post-conviction

relief 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 Collin s , we rejected the district court's concern that the federal habeas petition would have been dismissed and the stay of executio n lif ted had counsel filed a petition for post-conviction relief in stat e court. Id. The issue of the district court's authority to hold a petitio n 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 o ur independent research, we have discovered one additional
case in which we noted the possibility of retaining jurisdiction while a prisoner pursued unex hausted 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 b e rej ected by the state courts, the habeas proceeding should be dismisse d 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 suc h
cases was not decided because we held that any further state proceedings would be futile and thus proceeded to consider the petitioner's claim s without requiring the petitioner to attempt to exhaust his state cour t remedies.

In contradistinction to Sloanand th e 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.3 d 1178, 1179-80 (8th Cir. 1993); Gray v. Hopkins , 986 F.2d 1236, 1237 (8th Cir.) (per curiam), c ert. denied , 114 S. Ct. 112 (1993); Shook v. Clarke , 894 F.2d 1496, 1497 ( 8th Cir. 1990) (modifying order of dismissal so that dismis sal would be without prejudice); Nottlemann v. Welding , 861 F.2 d 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 clearl y 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 petition s or required the petit ioners to forego their unexhausted claims. In other words, we only needed to decide

### -11-

whether compliance with Rose v. Lundy was permis sible -- an easy question, indeed. In Ashker an d Snethen , we reversed the district court's grant of the writ and remanded with instructions to dismiss the habeas petitio n wi thout prejudice because it included both exhausted and unexhauste d claims. 5 F.3d at 1178-79; 736 F.2d at 1246. Our opinions do not indicat e whether any party arg ued that the case should have been remanded to allow the district court to consider whether to dismiss the petition or hold it in a beyance pending exhaustion. In this case, however, we are aske d explicitly to decide whether Rose v. Lundy leaves open the possibility of

a district court's retaining jurisdiction and holding a habeas case i n abeyance pending exhaustion rather than requirin g dismissal. As far as we

can s ee, this Court never squarely has been presented with the precis e issue that now is before us in this case.

We conc lude that any suggestion in our prior cases that a distric t court has broad discretion to hold in abeyance a habeas petition including both exhausted and unexhausted claims pending ex haustion of state remedies is contrary to the Supreme Court's explicit directions in Rose v. Lundy

. Except fo r cases of the sort noted earlier, see supra note 2, a mixe d petition must be dismissed or the petitioner mus t 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 t o "articulate standards by which" the court could determine "whether holding this case in abeyance and maintaining the existing stay of execution i s appropriate." Victor v. Hopkins , Mem. & Order at 19. We agree. Moreover , we do not believe that Sloanand the cases citedby the District Court can be squared with Rose v. Lundy . The correct view is represented by our lin e of cases, cited earlier in this opinion, in which we have given recognitio n to the cl ear teaching of Rose v. Lundy regarding the treatment of mixe d petitions. According ly, 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 th e 4 

### petition, the result he believed would be required by the Court's order, would cause unwarranted delay. He noted that th e unexhausted claim was not addressed by the Sixth Circuit and wa s not one of the issues raised i n the petition for certiorari. Thus the pe titioner could refile his petition without the unexhauste d claim and the litigation would substantively be repeated right up to the refiling of the very same certiorari petition that wa s 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 : dism issal of habeas petitions that include exhausted an d 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 decis ion is bolstered by the Supreme Court's post- Rose v. Lundy practice. The Court twice has granted certiorar i in cases involving mixed petit ions and summarily disposed of them. In Duckworth v. Cowell , th e Court remanded the ca se 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 fur ther 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 habea s petition should have been dismissed if state remedies had not bee n 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. 50 9 (1982), the Court announced that a habeas petition containing exhausted an d unexhausted claims must be dismissed."); Engle v . Isaac , 456 U.S. 107, 124 n. 25 (1982) ("If [anunexhausted] claim were present, Rose v. Lundy , 455 U.S
. 509 (1982), would mandate dismissal of the entire petition."); se e 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 i s 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.