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GRANBERRY v. GREER

decided: April 21, 1987.

GRANBERRY
v.
GREER, WARDEN



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Stevens, J., delivered the opinion for a unanimous Court.

Author: Stevens

[ 481 U.S. Page 130]

 JUSTICE STEVENS delivered the opinion of the Court.

Petitioner, a state prisoner, applied to the District Court for the Southern District of Illinois for a writ of habeas corpus pursuant to 28 U. S. C. ยง 2254. The Magistrate to whom the District Court referred the case ordered the State of Illinois to file an answer; the State instead filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the petition failed to state a claim upon which relief could be granted. The District Court adopted the Magistrate's recommendation and dismissed the petition on the merits. When petitioner appealed to the Court of Appeals for the Seventh Circuit, respondent for the first time interposed the defense that petitioner had not exhausted his state remedies.*fn1 In response, petitioner contended that the State had waived that defense by failing to raise it in the District Court. The Court of Appeals rejected the waiver argument and remanded the cause to the District Court with instructions to dismiss without prejudice. Granberry v. Mizell, 780 F.2d 14 (1985). Because the Courts of Appeals have given different answers to the question whether the State's failure to raise nonexhaustion in the district court constitutes a waiver of that defense in the court of appeals,*fn2 we granted certiorari. 479 U.S. 813 (1986).

[ 481 U.S. Page 131]

     How an appellate court ought to handle a nonexhausted habeas petition when the State has not raised this objection in the district court is a question that might be answered in three different ways. We might treat the State's silence on the matter as a procedural default precluding the State from raising the issue on appeal.*fn3 At the other extreme, we might treat nonexhaustion as an inflexible bar to consideration of the merits of the petition by the federal court, and therefore require that a petition be dismissed when it appears that there has been a failure to exhaust.*fn4 Or, third, we might adopt an intermediate approach and direct the courts of appeals 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.

We have already decided that the failure to exhaust state remedies does not deprive an appellate court of jurisdiction to consider the merits of a habeas corpus application. See Strickland v. Washington, 466 U.S. 668, 684 (1984) (citing Rose v. Lundy, 455 U.S. 509, 515-520 (1982)); see also Frisbie v. Collins, 342 U.S. 519, 521-522 (1952). As the Strickland case demonstrates, there are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion. Although there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies, his failure to do so is not an absolute bar to appellate consideration of his claims.

[ 481 U.S. Page 132]

     We have also expressed our reluctance to adopt rules that allow a party to withhold raising a defense until after the "main event" -- in this case, the proceeding in the District Court -- is over. See Wainwright v. Sykes, 433 U.S. 72, 89-90 (1977). Although the record indicates that the State's failure to raise the nonexhaustion defense in this case was the result of inadvertence,*fn5 rather than a matter of tactics, it seems unwise to adopt a rule that would permit, and might even encourage, the State to seek a favorable ruling on the merits in the district court while holding the exhaustion defense in reserve for use on appeal if necessary. If the habeas petition is meritorious, such a rule would prolong the prisoner's confinement for no other reason than the State's postponement of the exhaustion defense to the appellate level.*fn6

[ 481 U.S. Page 133]

     Moreover, if the court of appeals is convinced that the petition has no merit, a belated application of the exhaustion rule might simply require useless litigation in the state courts.

We are not persuaded by either of the extreme positions. The appellate court is not required to dismiss for nonexhaustion notwithstanding the State's failure to raise it, and the court is not obligated to regard the State's omission as an absolute waiver of the claim. Instead, we think the history of the exhaustion doctrine, as recently reviewed in Rose v. Lundy, 455 U.S. 509 (1982), points in the direction of a middle course:

"The exhaustion doctrine existed long before its codification by Congress in 1948. In Ex parte Royall, 117 U.S. 241, 251 (1886), this Court wrote that as a matter of comity, federal courts should not consider a claim in a habeas corpus ...


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