*2 OAKES, Before MESKILL and judgment, he satisfied the exhaus PRATT, Judges. as to his first claim for Accordingly, relief. the court dismissed
PER CURIAM:
entirety,
in
pursuant
its
to
from the
Plunkett
dis-
total exhaustion rule
in
set forth
v.
missal of his
for a writ of
habeas
corpus by the
(1982).
United States District Court L.Ed.2d 379
We
of
treat
notice
York,
appeal
constituting
for the Western
of New
request
District
Mi-
for a cer
Telesca, Judge.
probable cause,
chael A.
of
pursuant
tificate
to Fed.
22(b),
R.App.P.
grant
request.
Chemung
Plunkett was
in
convicted
Court,
York,
County
grand larceny
holding
of
prosecutor
New
‘may
“that
possession
proper-
defense,
and of criminal
of stolen
waive
and that
ty,
degree,
both
the second
in connection such a
waiver of the defense has
theft
goods
general
with the
of
from a railroad
car
the Court’s
obli
Elmira,
gation
Plunkett
New York.
was sen-
to
dismiss
concurrent terms
three
tenced to
state
remedies
are not
exhausted.’
Civ-85-1104T,
years’
one-half
seven and two to four
Plunkett
imprisonment.
Appellate
slip
1986)
(quot
The
Division af-
conviction,
Plunkett,
People
firmed
Barracano
(3d
(E.D.N.Y.1985)),
Dep’t
A.D.2d
tuted a waiver The Court both of the a court is convinced that the lacks appeals. question to this the merit and when the State has answers waived extreme —that application court is “a in the district ex- raising merely precluding the State haustion doctrine would result default or, appeal,” alternatively, useless in the state courts. the issue on Id. *3 to con- applicant an inflexible bar 1674. When “the does not raise “nonexhaustion [is] claim,” petition by of the merits of the even a colorable federal id. at sideration adopted reaching at It is a the federal court.” Id. the merits and approach,” petition, denying preserves ju- an “intermediate ac- the for this instead case, cording appeals the courts of dicial proper to which resources. exercise discretion in each case to de- exercise of discretion under “to justice the administration of cide whether would have resulted the district court’s by insisting reaching on ex- very be better served the merits for the reason would by reaching presented or the merits of the no colorable feder- preemption argument forthwith.” Id. The Court rea- al claim. Plunkett’s untenable, “comity light Congress’s the basis for the is soned doctrine,” (quoting “[n]othing exhaustion id. at ment 18 U.S.C. 659 that 515,102 455 U.S. at S.Ct. at contained in this section shall be construed exceptions indicating part as an intent on the of Con- gress made occupy provi- have nevertheless been the field in which where, example, judicial efficiency operate sions of this section to the exclu- requires, or there is a need for subject sion of State laws on the same matter____” intervention; prompt federal and that these Plunkett’s Fourth readily weighed by different factors can be Amendment claim lacks merit. The issue appeals light particular fully litigated suppression hearing court of in a it, 27, 1983, circumstances of case in or- April before conducted on which was subject appellate review, der to determine whether to state provided opportu- should bar it the merits. “where the State has nity for full and fair of a Fourth reasoning This same leads to the claim, prisoner may not Amendment a state conclusion that courts also must granted corpus be federal habeas relief on exercise to determine what their discretion ground that evidence in an obtained give effect to to a state’s waiver of the in- unconstitutional search or seizure was adopt and must Powell, troduced trial.” Stone v. per se rule that the case of nonexhaus 3037, 3052, U.S. 96 S.Ct. tion the must be dismissed. Just (footnotes omitted), reh’g de- the courts of Granberry directs nied, 50 L.Ed.2d do, a district court faced with a habeas Hence the denial of Plunkett’s petition that includes unexhausted claims is “should determine the interests of Affirmed on the merits. comity served and federalism will be better by addressing by the merits forthwith
requiring a series of additional state ...
MESKILL,
Judge, concurring in
proceedings
reviewing
dissenting
part:
petitioner’s
merits of
claim.”
by I concur in the decision reached
at 1675.
conclusion
majority
from its
but dissent
—
-,
Greer,
Although
ap
U.S.
the district court
plied
that,
re-
per
an erroneous
se
rather
rule
the mer-
discretion,
than
to review
quires
exercise its
it must dismiss
the district court
corpus
of a habeas
including unexhausted claims
its of certain claims
waived,
petitioner
exhausted
even when the
see no
that have
been
State has
we
judicial
case,
though
state courts. Even
effi-.
complete
tional”
where a
record on
might
ciency
be enhanced in some instanc-
merits of the habeas
—
generated.
by
summary
es
district court review and
See
-,
Although
obviously
denial of
meritless
con-
complete
the existence of a
record
claims,
taining
prosecu
be
generally
require
and the cases
reaffirms
tion’s waiver
non-exhaustion de
prejudice
without
dismissal
for non-exhaus-
fense, it
complete record,
is the
not the
These
tion.
cases
federal habeas
waiver, that makes the
exceptional.
rule
courts to
on the merits of unexhausted
“
id. at-n.
n. 6
Cf.
‘in
claims
rare cases where
(waivers might
be
used
peculiar urgency
tional circumstances of
gain
advantage).
unfair tactical
In such
are shown to exist.’
gained
cases there is
by appel
much
at-,
(quoting
parte
Ex
clearly
late review of
clearly
meritorious or
Hawk,
-,
non-meritorious claims.
See
(1944)).
Strickland v.
See
Wash-
case,
cial it termed an