IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-30042

_____________________

PETER MERCADEL,

Petitioner-Appellant,

v.

BURL CAIN, Warden, Louisiana State Penitentiary; RICHARD P

IEYOUB, Attorney General, State of Louisiana,

Respondents-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________________________________________________

June 21, 1999

Before KING, Chief Judge, and REAVLEY and BENAVIDES, Circuit

Judges.

PER CURIAM:

 Peter Mercadel appeals the district court’s denial of

habeas relief on the merits of his claim that he was deprived of

the effective assistance of counsel on direct appeal because his

attorney filed only an errors-patent brief on his behalf. We

conclude that Mercadel has failed to fairly present this claim to

the Louisiana state courts, and therefore that he has failed to

exhaust his state court remedies. We therefore vacate the

district court’s judgment and remand with instructions to dismiss

Mercadel’s habeas application without prejudice to allow him to
2

exhaust his remedies in Louisiana state court. 

I. FACTUAL AND PROCEDURAL HISTORY

In 1976, Peter Mercadel was convicted of second-degree

murder in Louisiana state court and sentenced to life

imprisonment. In 1977, Mercadel filed an application for a writ

of habeas corpus in Louisiana criminal district court, arguing

that his attorney’s failure to file a timely appellate brief on

his behalf violated his rights under the Fifth, Sixth and

Fourteenth Amendments. The Louisiana Supreme Court apparently 

construed his habeas corpus application as a writ of mandamus and

granted Mercadel an out-of-time appeal. On June 23, 1980,

Mercadel’s appellate counsel, Dwight Doskey, filed an appellate

brief with the Louisiana Supreme Court on behalf of Mercadel. 

The appellate brief was, including the cover page, the table of

contents, and the certification, only four pages long. After

setting forth the statement of the case, the brief addressed only

one issue:

ASSIGNMENT OF ISSUE No. 1

Defendant respectfully requests the Court to

review the record for error patent on the face of the

record. La. Constitution of 1974, Article 1, Section

19, State v. Martin, 329 So.2d 688 (La. 1975). In

accord with such a review, the defendant asks the Court

to reverse his conviction and sentence.

On October 15, 1980, the Louisiana Supreme Court affirmed

Mercadel’s conviction without a formal opinion. See State v.

Mercadel, 391 So. 2d 1182 (La. 1980).

On April 6, 1983, Mercadel filed another habeas petition in
1 It also appears from the record that at some point between

1983 and 1991, Mercadel filed a “blanket” application for postconviction relief and a motion for an extension of time within

which to file a more specific application for collateral relief. 

Mercadel appealed the trial court’s denial of these motions to

the Louisiana Supreme Court, which affirmed the trial court’s

dispositions on September 18, 1992. 

3

state court, alleging that the evidence was insufficient to

support his conviction. After the Louisiana Supreme Court

granted Mercadel’s motion for a writ of mandamus and ordered the

trial court to rule on the habeas petition, the state trial court

denied Mercadel collateral relief in a one-page order. In total,

the trial court ruled:

In his writ, petitioner contends that the evidence

adduced at trial was insufficient to sustain a

conviction.

This case was argued before the Supreme Court of

Louisiana who affirmed said conviction on October 15,

1980 in case number 66,998.

Accordingly, the writ is denied.

In June 1994, Mercadel filed another application for postconviction relief, this time in the Louisiana Supreme Court.1 In

this application, Mercadel raised the issue before us today,

i.e., whether he was denied the effective assistance of counsel

on direct appeal. Two years later, on June 28, 1996, the

Louisiana Supreme Court rejected this claim in a one-word order

in which the court stated that his application was “[d]enied.”

On May 23, 1997, Mercadel, proceeding pro se, filed an

application for habeas relief in the United States District Court

for the Eastern District of Louisiana. In his federal habeas
2 In our order granting Mercadel a COA, we noted that

because the district court did not toll the applicable one-year

statute of limitation for the time during which Mercadel had a

properly filed state habeas petition pending, the court

incorrectly ruled that Mercadel’s application was time-barred. 

See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (holding

that petitioner whose conviction became final before enactment of

AEDPA may rely on 28 U.S.C. 2244(d)(2)’s tolling provisions). 

Respondents do not pursue the timeliness issue on appeal.

4

application, he argued that he was constructively denied his

Sixth Amendment right to the effective assistance of counsel on

direct appeal. The district court denied the application; after

noting that the Anti-Terrorism and Effective Death Penalty Act of

1996 (AEDPA) applied, the court ruled that the application was

untimely under 28 U.S.C. § 2244(d), and, alternatively, that the

Louisiana Supreme Court’s resolution of the Sixth Amendment issue

did not constitute an unreasonable application of clearly

established federal law as determined by the Supreme Court under

28 U.S.C. § 2254(d)(1). A panel of this court granted Mercadel a

certificate of appealability (COA) to appeal the issue of

“whether Mercadel was constructively denied counsel when his

appellate attorney filed only an ‘errors-patent’ brief on his

behalf.”2 This timely appeal followed.

II. DISCUSSION

A. Adjudication on the Merits

Mercadel filed his habeas application after April 24, 1996,

and it is therefore subject to AEDPA. See Lindh v. Murphy, 521

U.S. 320, 336 (1997). Under AEDPA, we may not grant collateral
5

relief

with respect to any claim that was adjudicated on the

merits in State court proceedings unless the

adjudication of the claim– 

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States.

28 U.S.C. § 2254(d). The first question we must consider is

whether the Louisiana Supreme Court’s one-word denial of

Mercadel’s June 1994 motion for post-conviction relief is an

adjudication on the merits to which we must defer under AEDPA.

In this circuit, the question of whether a state court’s

decision is an adjudication on the merits turns on “the court’s

disposition of the case--whether substantive or procedural.” 

Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997) (discussing

whether state court’s decision constituted a resolution on the

merits, the pre-AEDPA equivalent of an adjudication on the

merits); see Fisher v. Texas, 169 F.3d 295, 299-300 (5th Cir.

1999) (applying Green to adjudication on the merits analysis). 

Under the test outlined in Green, we determine whether a state

court’s disposition of a petitioner’s claim is on the merits by

considering:

(1) what the state courts have done in similar cases;

(2) whether the history of the case suggests that the

state court was aware of any ground for not

adjudicating the case on the merits; and (3) whether

the state courts’ opinions suggest reliance upon

procedural grounds rather than a determination on the

merits.
3 In his habeas petition, Mercadel cites Louisiana Supreme

Court Rule 27 and Louisiana Constitution Article 1, Sections 19

and 21 in support of his assertion that the Louisiana Supreme

Court has original jurisdiction over his petition. However, none

of these provisions grant the Louisiana Supreme Court the power

to entertain a state prisoner’s habeas petition in the first

instance. See La. Sup. Ct. Rule 27 (approving a Uniform

Application for Post-Conviction Relief for use in habeas

petitions); LA. CONST. art. 1, § 19 (“No person shall be subjected

to imprisonment or forfeiture of rights or property without the

right of judicial review . . . .”); LA. CONST. art. 1, § 21 (“The

writ of habeas corpus shall not be suspended.”).

6

116 F.3d at 1121. 

Consideration of these factors leads us to conclude that the

Louisiana Supreme Court’s denial of relief on Mercadel was on

procedural grounds, and therefore not on the merits. The third

Green factor does not come into play in this case; the Louisiana

Supreme Court’s one-word rejection of Mercadel’s petition is

silent as to the reason for the denial of relief. However, our

thorough review of the record convinces us that the first and

second Green factors weigh heavily in favor of our treating the

state court denial as a procedural decision. Mercadel addressed

his July 1994 habeas application to the Louisiana Supreme Court,

rather than “the district court for the parish in which the

petitioner was convicted.”3 LA. CODE CRIM. PROC. ANN. art. 926(A)

(“An application for post conviction relief shall be by written

petition addressed to the district court for the parish in which

the petitioner was convicted.”). Obviously, the Louisiana

Supreme Court lacks original jurisdiction to hear the merits of

state prisoners’ habeas petitions; its normal role is, of course,
7

to review the decisions made by Louisiana state courts that are

granted original jurisdiction to hear such claims. Thus, the

history of the case suggests that the Louisiana Supreme Court was

aware of a ground for not adjudicating the case on the merits;

article 926(E) of the Louisiana Code of Criminal Procedure

provides that “[i]nexcusable failure of the petitioner to comply”

with the filing requirements “may be a basis for dismissal of his

application.”

Further, the first Green factor, “what the state courts have

done in similar cases,” Green, 116 F.3d at 1121, suggests

strongly that the Louisiana Supreme Court did not adjudicate the

merits of Mercadel’s Sixth Amendment claim. The Louisiana

Supreme Court has consistently refused to consider the merits of

state court prisoners’ habeas petitions originally filed in its

court. See, e.g., State v. Shoemaker, 558 So. 2d 597, 597 (La.

1990) (stating that habeas petition was “[n]ot considered”

because petitioner “has not petitioned the juvenile and district

courts for the relief he now seeks,” and advising that petitioner

should “present his claims to the appropriate lower courts”)

(citing LA. CODE CRIM. PROC. ANN. art. 926); State ex rel. Lay v.

First Circuit Court of Appeal, 541 So. 2d 853, 853-54 (La. 1989)

(denying relief to habeas petitioner because “[t]here is no

indication that relator applied for and has been denied post

conviction relief in the district court. Relator should file his

application in the court below . . . .”); State v. Bob, 541 So.
8

2d 863, 863 (La. 1989) (stating that habeas relief was “[d]enied”

because petitioner “must first seek relief from trial court by

application for post-conviction relief . . . .”); State v.

Washington, 533 So. 2d 5, 5-6 (La. 1988) (same); State v. Miller,

508 So. 2d 815, 815 (La. 1987) (same). Thus, if the Louisiana

Supreme Court was aware of the fact that the filing was improper,

it appears that it would have dismissed the petition pursuant to

Louisiana Code of Criminal Procedure art. 926(E) as a matter of

course.

In sum, we conclude that the AEDPA deference scheme outlined

in 28 U.S.C. § 2254(d) does not apply to Mercadel’s application. 

The obvious procedural defect in Mercadel’s filing of his

petition in the Louisiana Supreme Court instead of the district

court, coupled with the Louisiana Supreme Court’s consistent

practice of denying such improperly-filed petitions without

considering the merits of the underlying claim, dictates this

result. 

B. Exhaustion of State Court Remedies

We may not proceed directly to a de novo review of

Mercadel’s Sixth Amendment claim, however, because it appears

that the fact that Mercadel improperly filed his habeas petition

including that claim with the Louisiana Supreme Court leads

inexorably to the conclusion that he has failed to exhaust his

state court remedies with respect to that claim. 
9

Applicants seeking habeas relief under § 2254 are required

to exhaust all claims in state court prior to requesting federal

collateral relief. See Fisher, 169 F.3d at 302; Whitehead v.

Johnson, 157 F.3d 384, 387 (5th Cir. 1998). The exhaustion

requirement is satisfied when the substance of the federal habeas

claim has been fairly presented to the highest state court. See

Fisher, 169 F.3d at 302; Whitehead, 157 F.2d at 387. Although

Mercadel arguably presented his Sixth Amendment claim to the

Louisiana Supreme Court when he erroneously filed his habeas

petition with that court, a claim is not exhausted unless the

habeas petitioner provides the highest state court with a “fair

opportunity to pass upon the claim,” which in turn requires that

the applicant “present his claims before the state courts in a

procedurally proper manner according to the rules of the state

courts.” Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988)

(alteration and internal question marks omitted). The Louisiana

Supreme Court was denied a fair opportunity to consider

Mercadel’s claim because Mercadel filed his state habeas petition

improperly; his claim therefore remains unexhausted. 

Respondents did not make this argument before the district

court or on appeal; they focused solely (assuming that § 2254(d)

would apply to Mercadel’s application) on whether the Louisiana

Supreme Court’s denial of relief on Mercadel’s claim was “an

unreasonable application of[] clearly established Federal law, as

determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The
10

state’s implicit waiver of the exhaustion issue, however, is not

determinative. Under AEDPA, “[a] State shall not be deemed to

have waived the exhaustion requirement or be estopped from

reliance upon the requirement unless the State, through counsel,

expressly waives the requirement.” Id. § 2254(b)(3) (emphasis

added). There is no evidence of such an explicit waiver in this

case.

Mercadel’s failure to exhaust notwithstanding, this court

could reach the merits of his Sixth Amendment claim if we were

convinced that it lacked merit. See id. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust

the remedies available in the courts of the State.”); Nobles v.

Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 118 S.

Ct. 1845 (1998). We cannot avail ourselves of § 2254(b)(2) in

this case, however, because Mercadel’s claim that his attorney’s

filing of only an error-patent brief on appeal, which raised no

specific grounds of error, and which did not conform to the

withdrawal requirements outlined in Anders v. California, 386

U.S. 738 (1967), does not obviously lack merit. See Lofton v.

Whitley, 905 F.2d 885, 890 (5th Cir. 1990) (“Because we cannot

determine that there would have been no nonfrivolous grounds for

appeal, and because Lofton’s appellate counsel asserted no

grounds for appeal yet failed to follow the Anders procedures, we

hold that Lofton is entitled to [habeas] relief.”); Lombard v.
4 We do not hold that Mercadel would necessarily be entitled

to relief; his case is arguably distinguishable from Lofton and

Lombard in that Mercadel does not identify any nonfrivolous

issues that could have been raised in his direct appeal. In

addition, Mercadel’s conviction became final in 1980, and relief

might be barred under the anti-retroactivity doctrine announced

in Teague v. Lane, 489 U.S. 288 (1989). However, we cannot say

that “it is perfectly clear that the applicant does not raise

even a colorable federal claim,” Granberry v. Greer, 481 U.S.

129, 135 (1987), and denial of relief under § 2254(b)(2) is

therefore inappropriate. See Lambert v. Blackwell, 134 F.3d 506,

514-15 (3d Cir. 1997), petition for cert. filed, (U.S. Apr. 23,

1998) (No. 97-8812); Hoxsie v. Kerby, 108 F.3d 1239, 1242-43

(10th Cir.), cert. denied, 118 S. Ct. 126 (1997).

11

Lynaugh, 868 F.2d 1475, 1484 (5th Cir. 1989) (“We conclude that

although Lombard in form had the assistance of counsel on his

direct appeal, counsel’s performance was so pervasively

defective, in that he took virtually no action at all on his

client’s behalf despite the presence of at least two clearly

nonfrivolous appellate issues, that Lombard in substance was

denied any effective assistance of counsel whatever on his direct

appeal.”).4 

Although AEDPA makes clear that a federal court can deny

relief on unexhausted claims, two of our recent cases suggest

that the converse is not also true and that federal courts lack

the power to grant relief on unexhausted claims. See Alexander

v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998); Jones v. Jones,

163 F.3d 285, 299 (5th Cir. 1998). In Jones, a panel of this

court considered a habeas petitioner’s claim that her trial

counsel’s performance violated her Sixth Amendment rights. The

court denied the petitioner’s claim on the merits, despite her
12

failure to exhaust her state court remedies, citing 28 U.S.C.

§ 2254(b)(2). See 163 F.3d at 299-307. In responding to the

dissent’s argument that the petitioner’s Sixth Amendment

challenge had merit, the majority stated that “although AEDPA

gives a federal court the discretion to deny such [unexhausted]

claims on the merits, notwithstanding the State’s failure to

expressly waive exhaustion, it does not authorize . . . granting

habeas relief on unexhausted claims.” Id. at 299. Similarly, in

Alexander, we vacated a district court’s grant of a writ of

habeas corpus on a claim that had not been fairly presented to

the state courts, stating that the district court lacked the

power to grant the writ on an unexhausted claim absent an

explicit waiver of the exhaustion requirement by the state. 

See 163 F.3d at 908-09. The Alexander panel explained the

interplay between § 2254(b)(2) and § 2254(b)(3):

Although AEDPA authorizes a district court to deny

relief on an unexhausted claim, it does not authorize a

district court to grant relief on an unexhausted claim

unless the State, through counsel, expressly waives the

requirement. The State has not done so in this case. 

Accordingly, the district court lacked the authority to

grant relief on the state statutory ground.

163 F.3d at 908 (internal quotation marks and citations omitted).

Admittedly, the issue in Alexander was whether the district court

erred in raising sua sponte the issue of the constitutionality of

a particular Texas statute. However, the analysis of the

necessity to dismiss without prejudice an unexhausted claim in

both Alexander and Jones is not limited to such situations; each
13

opinion makes clear that, absent the applicability of an

exception to the exhaustion requirement, a federal court lacks

the authority to grant habeas relief on an unexhausted claim. 

See also Larry W. Yackle, A Primer on the New Habeas Corpus

Statute, 44 BUFF. L. REV. 381, 386 (1996) (stating that under

AEDPA, when “a federal court initially thinks a claim is

meritorious, the court may not act promptly but must withhold

judgment while the prisoner first seeks relief in state court”).

The general rule enforced by Alexander and Jones comports

with the policy concerns underlying the exhaustion doctrine. The

“exhaustion requirement is . . . grounded in principles of

comity; in a federal system, the States should have the first

opportunity to address and correct alleged violations of state

prisoner’s [sic] federal rights.” Coleman v. Thompson, 501 U.S.

722, 731 (1991); see Keeney v. Tamayo-Reyes, 504 U.S. 1, 10

(1992) (“The purpose of exhaustion is not to create a procedural

hurdle on the path to federal habeas court, but to channel claims

into an appropriate forum, where meritorious claims may be

vindicated and unfounded litigation obviated before resort to

federal court.”). Thus, we have recognized that the concern for

comity weighs more heavily when it appears that a state

prisoner’s claim has arguable merit than when it is easily

dismissed as frivolous by a federal court, thus saving a state

court from needless and repetitive litigation. See Granberry,

481 U.S. at 135 (“[I]f it is perfectly clear that the applicant
5 In fact, we note that the Louisiana Supreme Court has

granted out-of-time appeals to state prisoners in situations

similar to Mercadel’s. See, e.g. State v. Hampton, 667 So. 2d

550 (La. 1996); State ex rel. Green v. Whitley, 625 So. 2d 1051

(La. 1993); State v. Robinson, 590 So. 2d 1185 (La. 1992).

14

does not raise even a colorable federal claim, the interests of

the petitioner, the warden, the state attorney general, the state

courts, and the federal courts will all be well served even if

the State fails to raise the exhaustion defense, the district

court denies the habeas petition, and the court of appeals

affirms the judgment of the district court forthwith.”); Jones,

163 F.3d at 299 (“[O]bviously, when a federal court denies habeas

relief on the merits for an unexhausted claim, concerns for

comity are much less compelling than when it grants relief on

such a claim.”). 

Furthermore, we are mindful that “there is a strong

presumption in favor of requiring the prisoner to pursue his

available state remedies.” Granberry, 481 U.S. at 131; see Bear

v. Boone, No. 98-7043, 1999 WL 215721, at *1 (10th Cir. Apr. 14,

1999). No exception to the exhaustion requirement, such as the

futility doctrine or the lack of an available remedy in the state

court appears to apply to the circumstances of this case that

would rebut this presumption.5 Cf. Fisher, 169 F.3d at 303

(noting that exhaustion of state court remedies would be futile

where highest state court recently rejected petitioner’s claim). 

We therefore conclude that, even if we do have discretion to
15

consider Mercadel’s petition on the merits and are not precluded

from granting relief on an unexhausted claim by AEDPA, we would

not choose to exercise such discretion in this case. Instead, we

are convinced that the proper remedy is to dismiss Mercadel’s

petition without prejudice and allow him to pursue his claim in

Louisiana state court. If, after exhausting his claim in the

state courts, he is ultimately unsuccessful in obtaining relief,

he can, of course, re-file his application in federal district

court without having to contend with the requirements under AEDPA

relating to successive habeas applications. See Alexander, 163

F.3d at 909. 

III. CONCLUSION

For the foregoing reasons, we VACATE the judgment and this

case is REMANDED to the district court with instructions to

dismiss without prejudice.