Thomas F. Plunkett v. Sally Johnson, Superintendent , 828 F.2d 954 ( 1987 )

PER CURIAM:

Thomas Plunkett appeals from the dismissal of his petition for a writ of habeas corpus by the United States District Court for the Western District of New York, Michael A. Telesca, Judge.

Plunkett was convicted in Chemung County Court, New York, of grand larceny and of criminal possession of stolen property, both in the second degree, in connection with the theft of goods from a railroad car in Elmira, New York. Plunkett was sentenced to concurrent terms of three and one-half to seven and two to four years’ imprisonment. The Appellate Division affirmed his conviction, People v. Plunkett, 111 A.D.2d 566, 489 N.Y.S.2d 870 (3d Dep’t 1984), and leave to appeal to the New York Court of Appeals was denied.

Plunkett petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting two grounds for relief. He claimed, first, that New York state courts lacked jurisdiction in his case. He argued that Congress preempted state law involving thefts of goods flowing in interstate commerce by virtue of 18 U.S.C. § 659, so that New York lacked jurisdiction over charges that he had stolen goods that were being transported interstate by train. Second, Plunkett claimed that the search of his vehicle that led to the discovery of the stolen goods had been illegal because it was warrantless and not incident to or contemporaneous with his arrest.

Though Plunkett asserted in his petition that he had exhausted state remedies as to both of the grounds upon which he was seeking the writ, and although the State conceded that Plunkett had exhausted state remedies, this was not the case in fact. Plunkett had never raised his first, jurisdictional, ground for disputing his conviction before any state court, and it was still open to him to file a motion to vacate judgment pursuant to New York’s Criminal Procedure Law § 440.10, in which he could raise the claim. The district court held that because Plunkett had not moved to vacate judgment, he had not satisfied the exhaustion requirement as to his first claim for relief. Accordingly, the court dismissed the petition in its entirety, pursuant to the total exhaustion rule set forth in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). We treat the notice of appeal as constituting a request for a certificate of probable cause, pursuant to Fed.R.App.P. 22(b), and grant the request.

In holding “that a prosecutor ‘may not waive the exhaustion defense, and that such a purported waiver of the defense has no effect upon the Court’s general obligation to dismiss habeas petitions where state remedies are not exhausted.’ ” Plunkett v. Johnson, No. Civ-85-1104T, slip op. at 2 (W.D.N.Y. Oct. 9, 1986) (quoting Barracano v. Lord, 620 F.Supp. 1284, 1286 (E.D.N.Y.1985)), the district court to all intents and purposes adopted the view that a petition must automatically be dismissed when it appears there has been a failure to exhaust. This approach, however, is inconsistent with the Supreme Court’s decision in Granberry v. Greer, — U.S. -, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987).

To be sure, Granberry was a case in which the State had waived its exhaustion defense in the district court and the district court had reached the merits of the habeas petition. The question posed in Granberry was whether the State’s failure to raise nonexhaustion in the district court constituted a waiver of that defense in the court of appeals. The Court rejected both of the extreme answers to this question — that the waiver in the district court is “a procedural default precluding the State from raising the issue on appeal,” or, alternatively, that “nonexhaustion [is] an inflexible bar to consideration of the merits of the petition by the federal court.” Id. at 1673. It adopted instead an “intermediate approach,” according to which the courts of appeals are “to exercise discretion in each case to decide whether the administration of justice would be better served by insisting on exhaustion or by reaching the merits of the petition forthwith.” Id. The Court reasoned that “comity was the basis for the exhaustion doctrine,” id. at 1675 (quoting Rose v. Lundy, 455 U.S. at 515,102 S.Ct. at 1202); that exceptions to the exhaustion requirement have nevertheless been made where, for example, judicial efficiency so requires, or where there is a need for prompt federal intervention; and that these different factors can readily be weighed by a court of appeals in light of the particular circumstances of the case before it, in order to determine whether nonexhaustion should bar it reaching the merits.

This same reasoning leads to the conclusion that district courts also must exercise their discretion to determine what effect to give to a state’s waiver of the exhaustion defense, and must not adopt a per se rule that in the case of nonexhaustion the petition must be dismissed. Just as Granberry directs the courts of appeals to do, a district court faced with a habeas petition that includes unexhausted claims “should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state ... court proceedings before reviewing the merits of the petitioner’s claim.” 107 S.Ct. at 1675.

Although the district court applied an erroneous per se rule that, rather than exercise its discretion, it must dismiss petitions including unexhausted claims even when the State has waived, we see no reason for a remand to permit the district court now to exercise its discretion. When a court is convinced that the petition lacks merit and when the State has waived any exhaustion defense, application of the exhaustion doctrine would merely result in useless litigation in the state courts. Id. at 1674. When “the applicant does not raise even a colorable federal claim,” id. at 1675, that is a reason for reaching the merits and denying the petition, for this preserves judicial resources. In this case, a proper exercise of discretion under Granberry would have resulted in the district court’s reaching the merits for the very reason that Plunkett presented no colorable federal claim. Plunkett’s preemption argument is untenable, in light of Congress’s statement in 18 U.S.C. § 659 that “[n]othing contained in this section shall be construed as indicating an intent on the part of Congress to occupy the field in which provisions of this section operate to the exclusion of State laws on the same subject matter____” Similarly, Plunkett’s Fourth Amendment claim lacks merit. The issue was fully litigated in a suppression hearing conducted on April 27, 1983, which was subject to state appellate review, and “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (footnotes omitted), reh’g denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). Hence the denial of Plunkett’s habeas petition is

Affirmed on the merits.