Gеnnero GALTIERI, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant. John MATERA, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
Nos. 75-4169, 76-1006
United States Court of Appeals, Fifth Circuit
Oct. 23, 1978
Rehearing En Banc Denied Dec. 11, 1978
582 F.2d 348
With respect to the claims for denial of assistance of counsel, failure to hold a sanity hearing, excessiveness of the sentence, and involuntariness of the guilty plea, the decision of the trial court is AFFIRMED.
The case is REMANDED for further proceedings consistent with this order.
AFFIRMED IN PART and REMANDED IN PART.
Robert L. Shevin, Atty. Gen., Linda Collins Hertz, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.
Milton E. Grusmark, Miami, Fla., for petitioners-appellees.
Before BROWN, Chief Judge, TUTTLE, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.*
James C. Hill, Circuit Judge, concurred specially and filed opinion.
Thornberry, Circuit Judge, dissented and filed opinion in which Godbold, Circuit Judge, joined.
Goldberg, Circuit Judge, dissented and filed opinion in which Tuttle, Circuit Judge, joined.
Roney, Circuit Judge, dissented and filed opinion in which Thornberry, Godbold and Lewis R. Morgan, Circuit Judges, joined.
The exhaustion of state remedies is a doctrine, grounded on notions of comity, that requires a state prisoner to present his claim of constitutional error to the state court system prior to petitioning for federal habeas corpus relief. The rule in this circuit is that a federal district court generally must dismiss, without prejudice, a state prisoner‘s petition for a writ of habeas corpus that contains a mixture of exhausted and unexhausted claims. Strong policy considerations require us to adhere to our rule that petitioners present all their claims to the state court system before turning to the federal courts.
This case was taken en banc because it poses a question not clearly answered by our precedent: what is the proper course for this court when a district court declines to dismiss a mixed petition and reaches the merits of an exhausted claim, and we are asked to review the decision on the merits? In the case before us, the court below granted writs of habeas corpus to petitioners Galtieri and Matera on the strength of an exhausted claim, although their petitions also raised unexhausted claims. The policy considerations bearing on the desirability of a district court‘s dismissal of a mixed petition are outweighed at the appellate level by new policy considerations; therefore, we shall review the merits of the issue decided by the court below rather than vacate the grant of the writs and require dismissal for want of exhaustion.1
The writs were granted on the petitioners’ claim that the state prosecutor withheld certain vital information from the defense in violation of the Supreme Court‘s decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We hold that the petitioners’ exhausted claim does not assert an error of constitutional dimension under Brady and its progeny. The district court‘s judgment granting the writs is therefore reversed.
I
A. Exhaustion of State Remedies
In May, 1967, the petitioners, Gennero Galtieri and John Matera, were convicted of robbery by a Florida jury in a joint trial. Galtieri and Matera appealed their convictions and sentences through the Florida court system.2 After their direct appeals failed, the petitioners began unsuccessful collateral attacks on their judgments and sentences.3 Following their second journey
Thereafter, the petitions under review here were filed in the court below. Despite the petitioners’ three trips through the Florida state court system, the district court found that two of the four constitutional claims they raised had not been presented to the Florida courts.7
The district court held a consolidated evidentiary hearing on the petitions of Galtieri and Matera. At that hearing, evidence was heard on all the claims asserted by the petitioners. On September 16, 1975, the district judge entered an order finding no merit in one of the exhausted claims: that the failure of a Florida appellate court to rule on a speсific point raised on appeal deprived the petitioners of their constitutional right of appeal.8 Record, vol. 1, at 91-92, No. 75-4169. As to the other exhausted claim, however, the district court concluded that the petitioners had proved their claim of a federal constitutional deprivation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Id.
B. The Brady Claim
Prior to their trial, the petitioners made a general request under Brady for any evidence favorable to the defense. The Brady claim treated by the court below involved the prosecutor‘s alleged withholding from defense counsel of grand jury testimony of a court witness. This witness, Bruce Braverman, had appeared before a New York grand jury on four occasions.9 On the first two occasions, Braverman invoked the fifth amendment. He testified, however, at his third and fourth appearances, and his testimonies are relevant to the petitioners’ claims. In Braverman‘s third appearance, he apparently recounted nothing incriminatory to the petitioners. In his fourth appearance, however, Braverman testified that in March, 1966, he met with the petitioners in New York and that they men
Braverman was called at the petitioners’ trial as a court witness. Record, transcript of state trial, vol. 3, at 763. His direct testimony, in response to questions posed by the court, was innocuous. During the state‘s cross-examination, Braverman was impeached with his fourth grand jury testimony. Id. at 790-849. The petitioners, who claimed they were unaware of the third grand jury testimony until Braverman took the stand, then made a specific request to the trial judge for the transcript of that testimony. Id. at 826-27. The judge ordered that the trial proceed without the transcript, with the proviso that the defense could inquire into the third grand jury testimony during its cross-examination. Id. at 836. As we point out in Part III infra, the substance of the third grand jury testimony was adopted by Braverman during the course of his cross-examination by the defense.
II
In order to explore the roles of the federal habeas courts in the treatment of “mixed” petitions, it is necessary both to define what exhausted and unexhausted claims are and to identify the conflicting policy considerations involved in the decision whether to dismiss a mixed petition. The federal writ of habeas corpus serves as a “swift and imperative remedy in all cases of illegal restraint or confinement.” Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973) (quoting Secretary of State for Home Affairs v. O‘Brien, [1923] A.C. 603, 609 (H.L.)). The exhaustion doctrine, however, has long operated to delay federal consideration of constitutional claims raised by state prisoners.10 This doctrine, which is codified at
“it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation . . . . Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.”
Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 838-39, 9 L.Ed.2d 837 (1963) (quoting Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). A major concern is that, without the exhaustion doctrine, the
In some circumstances, however, it is proper for federal courts to treat claims technically unexhausted. As the Supreme Court stated in Fay v. Noia, “The rule of exhaustion ‘is not one defining power but one which relates to the appropriate exercise of power.‘” 83 S.Ct. at 839 (quoting Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)). The Supreme Court has “consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint.” Id. 83 S.Ct. at 842. Because exhaustion is not considered to be a jurisdictional prerequisite, the federal courts have heard claims not previously considered by the state courts.
The exceptions to the exhaustion doctrine illustrate the tension between the swift vindication of the petitioner‘s constitutional rights and the comity principles undergirding the doctrine. Whether the reason for reaching an unexhausted claim is termed a satisfaction of or an exception to the doctrine, it is clear that the federal court must weigh the conflicting intеrests served by the federal writ of habeas corpus and by the exhaustion doctrine before addressing the merits of an unexhausted claim. Exceptions to the exhaustion doctrine have been developed judicially to cover situations where mechanical adherence would not further the goals of the exhaustion doctrine or would frustrate an overriding federal concern.
Two of the exceptions to the exhaustion doctrine are codified in section 2254(b). A person in state custody need not attempt to exhaust the state‘s remedies when “either there is an absence of available State corrective process”12 or there is “the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”13
With the general background of the policies served by the writ of habeas corpus, the exhaustion doctrine, and the exceptions to the exhaustion doctrine in mind, we shall discuss the approach we think a federal court must adopt in considering a mixed petition. Because the policy considerations differ significantly at the trial and appellate stages of a federal habeas proceeding, we shall assess the respective functions of the district court and the court of appeals in considering a mixed petition.
A. The Federal District Court
The policy in this circuit is that a federal district court must dismiss without prejudice a “mixed” petition for a writ of habeas corpus filed by a state prisoner. West v. Louisiana, 478 F.2d 1026, 1034 (5th Cir. 1973), aff‘d regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975). A “mixed” petition is one that asserts both exhausted claims and unexhausted claims that do not fit an exception to the exhaustion doctrine; that is, some of the claims have not been presented to the state court system so that the custodial state has not yet had an opportunity to correct all of the alleged constitutional errors.
At the outset, we note that requiring exhaustion of all claims does not “bar the federal courthouse door” to any petitioner. But cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (both cases holding that some issues are not cognizable in federal habeas proceedings). Nor does our discussion today in any way abrogate or infringe upon the exceptions to the exhaustion doctrine that have been developed through the years. If the unexhausted claims in a mixed petition fit an exception to the exhaustion doctrine, it would be improper for the district court to dismiss the petition.
The language of the habeas corpus statute refers to the exhaustion of a “question” rather than of the “case.”14 We do not consider this language to be a mandate to the federal courts to hear each “question” as it is exhausted; rather, we consider the statute to set forth the minimum limits of the exhaustion doctrine. The Supreme Court has not addressed this issue directly. In Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974), a petitioner sought to overturn a lower court‘s dismissal of his exhausted claim because it was joined with an unexhausted one. The Court expressly reserved this issue and decided the case on other grounds.15
As a starting point for our explication, we note the presence of a strong federal policy in the Rules Governing Section 2254 Cases in the United States District Courts,
It is urged that we adopt the policy followed in other circuits of encouraging district courts, when presented with mixed petitions, to treat unrelated exhausted claims while dismissing the unexhausted ones. See note 16 supra. In balancing the relevant considerations, other circuits find that the immediate treatment of the exhausted claims outweighs all other concerns. In our opinion, this approach is unrealistic and ignores many strong federal policies. We think that our requirement of complete exhaustion is the better practice and is in linе with explicit congressional pronouncements.
Rule 9(b) of the Rules Governing Section 2254 Cases was adopted by Congress “to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims and to file multiple petitions.” Rules Governing Section 2254 Cases in the United States District Courts, Rule 9,
A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
This provision, embodying a laches concept, is designed to ensure the prompt presentation of claims.19
Thus, rule 9 forces a petitioner to assert his claims promptly and in one petition. To the extent that he withholds a claim, whether exhausted or not, from his habeas petition, he runs the risk of a rule 9(a) laches defense.20 If a petitioner does not assert an already exhausted claim in his first petition, he runs the additional risk of a rule 9(b) dismissal.
The obvious intent in the enactment of rule 9 is to bring all of a petitioner‘s claims to light the first time he petitions in a federal habeas court. This purpose must be considered in conjunction with the section 2254 provision that forbids federal court treatment of unexhausted claims. Consequently, one federal proceeding embracing all claims can be attained only by requiring a petitioner to submit all of his claims to the state courts before he seeks federal habeas corpus relief.
We think that our approach comports with the purposes of rule 9 and section 2254. Although there is an initial delay in the consideration of an exhausted claim when a federal court dismisses а mixed petition, we are nevertheless convinced that our approach eventually will result in the timely disposition of all claims in both the state and the federal courts. By dismissing mixed petitions, thus giving full effect to the objectives of rule 9, we enhance the potential for the prompt and efficient consideration of all of a petitioner‘s claims in state court and for an early end to his litigation. Since it is axiomatic that the prompt and efficient consideration of claims increases the chance for a just result, should it not be anticipated that a state court would grant relief on a meritorious claim seasonably presented and fully litigated? And should it not also be anticipated that a state prisoner might accept an adverse state court determination of his
We think our policy serves another salutary objective: it reduces the likelihood that an otherwise meritorious claim will be dismissed on grounds of delay. This is a desirable goal from a petitioner‘s standpoint, and, moreover, it serves the ends of justice.
A petitioner who, for tactical reasons, seeks habeas relief in this circuit in a piecemeal fashion and clutters up his federal habeas petition with unexhausted claims is deterred by our requirement that the mixed petition be dismissed. The only way a petitioner can carry out a strategy of piecemeal attacks on his conviction and also avoid the consequences of our policy is to withhold altogether the assertion of unexhausted claims in his federal petition. In doing so, he runs the risk of a rule 9(a) dismissal when, later, he initially asserts such claims in federal court. He runs this risk because he invites the state to contend that his failure to present the claims in his first petition, along with his exhausted claims, lulled the state into believing that the first petition constituted a full constitutional attack on his conviction. The prejudice to the state could take many forms, such as its inability to preserve the evidence necessary to refute the delayed claims. The presence of rule 9(a) makes it unlikely, we think, that a petitioner with unexhausted meritorious claims will forego the chance to preclude a possible laches defense; there is a great incentive for him to incorporate such claims into his petition.
In sum, the rule of this circuit encourages the presentation of exhausted claims in one petition as the norm. Where the petitioner is cognizant of the possible constitutional infirmities of his conviction, multiple petitions should not occur unless he is willing to run the risk of a laches dismissal under rule 9(a). There are, of course, situations in which successive petitions cannot be avoided. We are concerned here, however, with the petitioner who, prior to seeking federal relief, knows that he has several claims and not with the petitioner who, through a change in the law or other excusable circumstance, realizes after his first federal habeas petition that he has other possibly meritorious claims.
We are convinced that the alternative approach, followed in the majority of circuits, runs against the spirit of rule 9 and upsets the balance between the rule and section 2254, because it encourages, rather than discourages, piecemeal litigation. Under that approach, the petitioner, while pursuing his exhausted claims in federal court, may simultaneously litigate his remaining claims in state court and, if unsuccessful in that forum, return to the federal system. In our judgment, a policy that invites the prosecution of successive petitions, each asserting newly exhausted claims, impedes the orderly and complete consideration of the constitutional issues in state court and greatly diminishes the ability of the federal habeas court to dispose of a petitioner‘s claims in one proceeding. The federal district judge who dismisses only the unexhausted claims creates, in effect, two petitions for writs: one, containing the exhausted claims, that is ripe for immediate adjudication; the other, containing the unexhausted claims, that must await state court treatment. Unlike our rule, the rule of these circuits does not discourage the litigious prisoner; as long as he is able to evade the rule 9(a) laches defense by the state, he is free to prosecute multiple petitions. By filing a mixed petition, a state prisoner maneuvers himself into a position from which he can contend, in a subsequent habeas petition containing his formerly unexhausted claims, that the state, having had previous notice of the claims, cannot establish prejudicial delay. The rule of these circuits also frustrates the notion of expedition embodied in rule 9(a) by creating an atmosphere in which the norm is that
The filing of a mixed petition not only aids a petitioner in circumventing a future laches defense but also may serve his trial strategy as well. The mere inclusion of unexhausted claims, especially those appearing to be meritorious, might be calculated to influence the district court‘s resolution of the exhаusted claims even though the unexhausted claims will ultimately be dismissed. The petitioner might even succeed in influencing the court by proffering evidence of apparent constitutional error in support of his unexhausted claims. This could well occur, despite the prohibition against hearing the merits of unexhausted claims, because it is sometimes difficult for a district judge to determine from the state court record alone whether all the claims have actually been exhausted, and thus should be entertained, or, if there are unexhausted claims, whether they are “related” to the exhausted ones, thus mandating that all claims be dismissed. If, under these circumstances, the petitioner succeeds in litigating to final judgment the merits of his exhausted claims, he has received whatever benefit might flow from the premature incorporation of “unrelated” unexhausted claims in his petition. And even where he suffers the dismissal of such claims, he has reserved the right to return to federal court another day, if need be, in his quest for release from custody.
As an example of what can transpire at the evidentiary hearing on the merits of an exhausted claim when matters germane to unexhausted claims are introduced, we note what took place in the court below. Although the district judge found that two of the claims of petitioners Galtieri and Matera were unexhausted, testimony was heard on all the claims, and during the course of the hearing new and unexhausted claims surfaced. The record of the hearing clearly shows that the district judge considered all the claims, even though his dispositive order granted relief only on a claim that was found to be exhausted.
If the court below had followed the rule of this circuit, any prejudicial influence that might have derived from the unexhausted claims would have been avoided. The district court would have dismissed the petitions for want of complete exhaustion. If the petitioners were to return to federal court after submitting their claims to the state system, all the evidence could properly be considered.
In addition to harmonizing rule 9 and section 2254, our approach furthers federal-state comity. Although comity in a narrow sense has been served by the prior state consideration of the exhausted claim, there arе broader aspects to comity between concurrent court systems.
First, we observe that the state has an interest in the resolution of the entire case, as well as in each of the component constitutional assertions that the petitioner may bring to challenge his conviction. An important value in our jurisprudence is the finality of criminal trials, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 3050 n. 31, 49 L.Ed.2d 1067 (1976) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2064, 36 L.Ed.2d 854 (1973) (Powell, J., concurring)), and the concept of finality encompasses the resolution of the petitioner‘s entire case, not just the resolution of each claim. See Wheeler v. Beto, 407 F.2d 816, 817 (5th Cir. 1969). The Supreme Court has admonished the federal habeas courts not to “detract from the perception of the trial of a criminal case in state court as a decisive and portentous event.” Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). The piecemeal litigation of challenges to a conviction obviously disparages the state courts. Insofar as the state has an interest in the conviction, our
Second, there is less disruption in the custodial status of the petitioner when he is required to be brought before a federаl tribunal only once. Complete exhaustion lessens the possibility of intermittent interruption of a petitioner‘s prison sentence. In this case, the court below released Galtieri and Matera under the sponsorship of their attorneys. Record, No. 75-4169, vol. 1, at 84; Record, No. 76-1006, vol. 1, at 77. Since we are reversing the district court, they will be incarcerated again, although it is possible that they may ultimately be released on one or more of their as yet unexhausted claims. Clearly, the state‘s correctional system, especially its rehabilitation programs, suffers when this occurs.
Third, dismissing only the unexhausted claims could produce untoward effects if the petitioner prosecutes those claims in state court while pursuing the exhausted claims through the federal system. The possibility is not remote that the state and federal courts would grant inconsistent relief on the claims. Depending on the character of each of the claims involved, one system might grant the petitioner a new trial while he remains incarcerated; the other might fashion relief that results in his immediate release from custody. The specter of such incompatible dispositions clearly does not foster harmonious federal-state relations. If the state courts stay the prosecution of the unexhausted claims pending before them, awaiting the outcome of the federal litigation, the petitioner might be able to assert the “undue delay” exception to the exhaustion doctrine, and the state courts would be deprived altogether of considering his unexhausted claims.
Finally, each time the federal court interferes with the state‘s criminal justice system, it disrupts the state‘s orderly administration of its affairs. Our intent is to keep these intrusions to a minimum.
B. The Appellate Court
We must reevaluate the conflicting policy considerations to determine the proper course of action for this court when we are asked to review a district court‘s decision on the merits of an exhausted claim presented in a mixed petition. The panel of this court that originally heard this appeal refused to consider the merits and vacated the district court‘s grant of the writs on the procedural ground of lack of exhaustion. Galtieri v. Wainwright, 545 F.2d 942 (5th Cir. 1977). This was the logical disposition in light of this circuit‘s policy against the entertainment of mixed petitions.23
When the district court has granted the writ on an exhausted claim in a mixed petition and we decline to review the merits, vacate the issuance of the writ, and order the district court to dismiss the petition so that the state courts will have an opportunity to consider all of the constitutional attacks on the petitioner‘s conviction, federal-state court friction is inevitable. A refusal to review the merits places the state courts in the anomalous position of considering claims, brought by a prisoner in state custody, while knowing that a federal district court has already found constitutional error in the prisoner‘s conviction. It would be reasonable for a state judge hearing the unexhausted claims to expect that the conviction would ultimately be set aside regardless of the result he reached. This would be so even though the district court‘s earlier findings and conclusions justifying the grant of the writ, having been vacated on appeal without intimation as to their correctness, were a nullity and, moreover, may have been erroneous. Of course, if the state judge grants relief and sets the conviction aside, the frustration of the state system of criminal justice wrought by the earlier federal intrusion will be ameliorated since the state court will have joined in the determination that the conviction was unconstitutionally obtained. If, however, the state court finds no merit in the prisoner‘s claims, thus placing the two judicial systems in direct conflict, further friction would follow inexorably.
If the state court denies relief, the prisoner will promptly return to federal court to obtain the relief awarded him on his first trip to that forum. If the case is assigned to the district judge who issued the writ on the earlier occasion, the state may seek to disqualify him on the theory that it is unrealistic to expect the same district judge to reach a contrary result on a claim simply resubmitted. Transferring the case to another judge would not allay the dilemma. Even though the successor judge‘s ruling on the merits might in truth be unassailable, it might be perceived as less than impartial: was the writ granted in deference to the prior judge‘s ruling, or was it denied to foreclose the inference that the previous action was rubber-stamped? This potential for perceived injustice could be exacerbated if the state court, in upholding the prisoner‘s conviction following a hearing on the merits, made comprehensive findings of fact. Section 2254(d)24 creates a presumption that state court findings are correct. Upon the prisoner‘s return to federal district court, the court could well be faced with a state court judgment with findings and conclusions of law indicating that the state court either reconsidered the prison
The potential for federal-state conflict is substantial even when the district court does not grant the writ on the merits and the appellate court vacates the district court‘s judgment for want of exhaustion of all claims. Since the appellate disposition carries no implication as to the correctness of the district court‘s resolution of the merits, the prisoner is free, depending on the outcome of the state court consideration of his unexhausted claims, to relitigate in federal court the merits of his previously exhausted claim. There is nothing to preclude the state court, if it reconsiders that claim (together with the previously unexhausted claims), or the district court, in round two, from reaching a result on the exhausted claim that is at odds with the district court‘s initial disposition. Moreover, in the second presentation of the petition in district cоurt, the problem regarding the judge‘s qualification to sit may arise.
The primary goal of the exhaustion doctrine is to prevent “unnecessary conflicts between courts equally bound to guard and protect rights secured by the Constitution.”26 Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) (quoting Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886)). As we have discussed, a refusal to reach the merits on appeal when the court below has reached them will not advance this goal; the conflict has already been created, and a declination on our part would merely aggravate the problem. In addition to the federal-state conflict, we have also demonstrated the potential for antithetical resolutions of the petitioner‘s case in the federal court system when it is required to consider the merits of a claim for a second time following intervening state proceedings. Such inconsistency in disposition, which in a given case may simply be the product of procedural nuances, is a consequence inexplicable in logic or reason to the public, if not to the legal profession.
To summarize our discussion today, we conclude that federal district courts in this circuit must dismiss state prisoners’ mixed petitions. In the rare event, however, that a district court erroneously reaches the merits of an exhausted claim in a mixed petition and an appeal is taken from its dispositive order, we shall review the merits of the claim.
III
Turning to the claim on which the district court granted relief, we shall treat the claim as it did: as an unrelated, exhausted Brady claim of error in the withholding of Braverman‘s prior grand jury testimony. We note, however, that the record of the evidentiary hearing raises serious questions, which have not been presented to the state courts, that are intertwined with the narrow question reached by the district court.
In addressing the petitioners’ Brady claim, we note at the outset that a defendant is not denied a fair trial in the context of Brady and the due process clause
The trial transcript shows that Braverman was called as a court witness and was therefore cross-examined by both sides. Record, transcript of state trial, vol. 3, at 763-945. On questioning by the court, Braverman stated that on March 16, 1966, he conversed with the petitioners but that the Harbor Island Spa, the site of the robbery, was not mentioned. Id. at 771. Following this direct testimony, the state sought to impeach Braverman with the inconsistent testimony he had given at his fourth New York grand jury appearance. At that stage in the trial proceedings, defense counsel objectеd to the state‘s use of the fourth grand jury testimony, which was then made available to the defense. Id. at 773, 784-85. In response to the state‘s impeachment, Braverman himself disclosed that he had testified during his third grand jury appearance. He stated that his trial testimony was consistent with this prior grand jury testimony and that his fourth grand jury testimony was a fabrication. Id. at 791, 807, 826. The defense sought to obtain the third grand jury testimony from the state, but the state denied ever having access to that evidence.30 Id. at 826-27,
In response to the state‘s questioning, Braverman stated that at the March meeting with the petitioners, Galtieri offered to lend him $1,000 after he made his “score” in Miami. Id. at 842-47. Braverman‘s testimony included nothing else of substance on the issue of the petitioners’ guilt.
The defense followed with its cross-examination of Braverman, centering on his statements that no incriminating statements were made by the petitioners. Id. at 849-923. The trial transcript leaves no doubt that the defense extensively and effectively cross-examined Braverman with the apparent substance of his third grand jury testimony (as recounted by Braverman). After reviewing the trial transcript, we find ourselves in accord with the Florida Supreme Court‘s conclusion that Braverman had been so effectively impeached “that little, if anything, remained of his credibility.” State v. Matera, 266 So.2d 661, 665 (Fla. 1972). See United States v. Washington, 550 F.2d 320, 330 (5th Cir. 1977), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977).
In summary, there are a number of distinctions between this case and the Brady line of cases. Here, the omitted evidence was “discovered” during, not after, the trial. The trial judge, not the prosecutor, made the decision that the trial should continue without the transcript. The relevant information contained in the omitted evidence was put before the jury. The testimony at the third grand jury proceedings, as recounted by Braverman, was not clearly exculpatory.31 Viewing the record as a whole, we cannot say that the actual possession by the defense of the transcript of the third grand jury proceedings for use in cross-examining Braverman could have created “a reasonable doubt thаt did not otherwise exist.” Agurs, 96 S.Ct. at 2401-02. Moreover, since Braverman adopted at trial the complete essence of his testimony before that grand jury, for the defense to have introduced the transcript would have been a repetitious, cumulative, and, we think, clearly improper use of a prior consistent statement. Therefore, we hold that no constitutional error was committed.
IV
For the reasons stated above, we continue to adhere to our policy that federal district courts must dismiss mixed petitions. Through the efficient use of pretrial procedures, the district courts can ferret out and identify the nature of all of a petitioner‘s claims and determine which of them have not been exhausted. As for the unexhausted claims, the district court can ascertain, on the record, whether the petitioner knowingly and willingly chooses to abandon them, and, if he does, can proceed with the exhausted claims. If the petitioner does not abandon these claims, his petition must be dismissed.
In this case, we AFFIRM the district court‘s finding of no merit in petitioners’ exhausted claim relating to the Florida intermediate appellаte court‘s refusal expressly to consider an assignment of error, REVERSE the grant of the writ on the Brady claim, and REMAND for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSE IN PART, and REMANDED.
GERALD B. TJOFLAT
UNITED STATES CIRCUIT JUDGE
Notes
(а) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall enter-tain an application for a writ of habeas cor-pus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) 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 availa-ble in the courts of the State, or that there is either an absence of available State correc-tive process or the existence of circumstanc-es rendering such process ineffective to pro-tect the rights of the prisoner.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available proce-dure, the question presented.
The Supreme Court has held that the doc-trine does not require state prisoners to file repetitious applications in the state courts. Therefore, if a prisoner has fairly raised the issue on direct appeal, he is not also required to attempt a collateral attack in state postconvic-tion proceedings. The mere possibility of suc-cess in additional state proceedings does not bar federal consideration of the claim. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971); Cronnon v. Alabama, 557 F.2d 472, 473 (5th Cir. 1977); Bishop v. Wainwright, 511 F.2d 664 (5th Cir. 1975), cert. denied, 425 U.S. 980, 96 S.Ct. 2186, 48 L.Ed.2d 806 (1976).
In Sanders, the Court stated as follows: [I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being grаnted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . . Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.
83 S.Ct. at 1078. The initial burden is on the government to plead an abuse of the writ. Id., 83 S.Ct. at 1074-75, 1075, 1078. The burden then shifts to the petitioner to prove that he has not abused it. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948).Congress also provided for a form petition, which “encourages the petitioner to raise all of his available grounds in one petition. It sets out the most common grounds asserted so that these may be brought to his attention.” Id. at 1139.
In the first situation, where the district court has declined to reach the merits and has dismissed the entire petition without prejudice, we have affirmed its decision. E. g., Parson v. Beto, 463 F.2d 249 (5th Cir. 1972); Burroughs v. Wainwright, 454 F.2d 1165 (5th Cir. 1972); Wheeler v. Beto, 407 F.2d 816 (5th Cir. 1969). We have found no case in which this court has reversed a district court‘s dismissal for want of complete exhaustion and remanded for a hearing on the merits.
In the second situation, where the district court has denied relief on the merits of the exhausted claims and has dismissed the unexhausted ones, we have sometimes vacated the district court‘s judgment and required dismissal of the petition to ensure that the premature claims would receive prior state court treatment. E. g., Hargrett v. Wainwright, 474 F.2d 987 (5th Cir. 1973). In other cases, however, this circuit has reached the merits of the exhausted claims and affirmed the denial of the writ. E. g., Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978); Singleton v. Estelle, 492 F.2d 671 (5th Cir. 1974); Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974); Hill v. Dutton, 440 F.2d 34 (5th Cir. 1971). We have also reversed the district court‘s denial on the merits and remanded the case for further proceedings. Allen v. Henderson, 434 F.2d 26 (5th Cir. 1970).
In the third situation, where the district court grants relief on the exhausted claim in a mixed petition, this court has both affirmed the grant, Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), aff‘g Moye v. Georgia, 330 F.Supp. 290 (D.Ga. 1971), and reversed the grant, Shuler v. Wainwright, 491 F.2d 1213 (5th Cir. 1974), after reviewing the issue on the merits.
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determina-tion after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the ap-plicant for the writ and the State or an offi-cer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct . . . .
Subsection (d) goes on to place the burden on the petitioner “to establish by convincing evi-dence that the factual determination by the State court was erroneous” unless one of the exceptions to the presumption of correctness, which are enumerated in the statute, is estab-lished or is admitted by the state.