Appeal from an order of the United States District Court for the Southern District of New York, Knapp, J., granting a petition for a writ of habeas corpus. Vacated and remanded for further proceedings.
Oakes, Meskill and Kearse, Circuit Judges.
Respondents, Stephen Dalsheim, Superintendent, Downstate Correctional Facility, and Robert Abrams, Attorney General of the State of New York, appeal from an order of the United States District Court for the Southern District of New York, Knapp, J., granting Charles Anthony Gulliver's petition for a writ of habeas corpus. We vacate the order and remand for further proceedings.
Gulliver was charged in County Court, Westchester County, with burglary in the second degree and petit larceny. The state alleged that on June 26, 1977, Gulliver knowingly entered and remained unlawfully in the dwelling of Mary Lipscomb with the intent to commit larceny and that he stole $200 from a closet in Lipscomb's home. The evidence indicated that on that date Lipscomb's teenage son Aaron discovered an intruder he later identified as Gulliver crouching behind his mother's bedroom door at approximately 4:00 a.m. Aaron yelled, awakening his mother, who saw the intruder leap over Aaron's brother, who was lying on a mattress in Lipscomb's bedroom, and jump from the bedroom window to the street twelve feet below. Lipscomb and Aaron were the only prosecution witnesses presented at trial. Both identified Gulliver as the intruder and testified that they had seen him in their neighborhood several times over the preceding four to six years. Gulliver presented an alibi defense through his mother, who testified that he was at home watching television at the time Lipscomb discovered the intruder in her bedroom.
The jury found Gulliver guilty of burglary in the second degree and the County Court sentenced him as a second felony offender to an indeterminate prison term of from six to twelve years. The conviction was affirmed by the New York Supreme Court, Appellate Division, Second Department on April 23, 1979, and the Court of Appeals denied leave to appeal on May 31, 1979. On December 5, 1980, Gulliver petitioned the Appellate Division for a writ of habeas corpus claiming that he had been denied the effective assistance of appellate counsel. That petition was denied without opinion, and the Court of Appeals again denied leave to appeal.
On April 7, 1981, Gulliver, acting pro se, filed the instant application for a writ of habeas corpus. In addition to asserting a claim of ineffective assistance of appellate counsel, Gulliver argued that: (1) he had been denied the effective assistance of trial counsel; (2) the state trial court's refusal to grant him an identification hearing denied him due process; (3) certain remarks and arguments by the prosecutor at trial denied him due process; (4) the evidence adduced at his trial was insufficient to support the verdict; and (5) his sentence was excessive. After reviewing Gulliver's pro se petition, the district court appointed counsel to represent him. Counsel briefed only the claim of ineffective assistance of appellate counsel, but never explicitly abandoned Gulliver's other claims. On February 26, 1982, the district court concluded that the claim relating to appellate counsel was "the only substantial issue presented on this writ." The court ruled that Gulliver's appellate counsel failed to meet the minimum standards for constitutionally adequate appellate advocacy in criminal cases set forth in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and ordered that the writ issue "unless, within a reasonable period not to exceed ninety days, the State grants petitioner leave to appeal from his conviction." The state then filed the instant appeal. The district court's order has been stayed pending this Court's ruling.
At the outset, we must consider an issue not addressed in the parties' briefs: whether Gulliver has exhausted his state remedies on all of the claims presented in his petition.*fn1 The recent case Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379, 50 U.S.L.W. 4272 (1982), requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims which the petitioner has not fairly presented to the state courts.*fn2 From our review of the record, it appears that Gulliver's petition might contain some unexhausted claims.*fn3
On his direct appeal to the Appellate Division, Gulliver raised all of the claims initially presented in the instant habeas petition except the claim of ineffective assistance of appellate counsel, which he raised in his state habeas petition. However, Gulliver presented his claims in state terms only, except those of ineffective assistance, which he argued in federal terms. Therefore, Gulliver has failed to give the state courts a fair opportunity to consider several of his federal claims of error. See Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979); Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979).
Before a federal court can properly reach the merits of Gulliver's claim of ineffective assistance of appellate counsel, Gulliver must either return to the state courts to exhaust his other claims, or amend his petition to delete all unexhausted claims. See Rose, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379, 50 U.S.L.W. at 4275. During oral argument in this case, Gulliver's counsel represented that he had orally stipulated in the district court that Gulliver desired to abandon all claims except that of ineffective assistance of appellate counsel. Gulliver's brief in the district court, because it addresses only the claim relating to appellate counsel, lends credence to this assertion. Nevertheless, we have carefully reviewed the record in this case and have found no statement, either written or oral, indicating that Gulliver had amended his petition to delete his unexhausted claims. In light of the ambiguity in the record on this point, we are constrained by Rose to remand this matter for reconsideration and such further proceedings as may be necessary. On remand, the district court should determine whether Gulliver has amended his petition to delete his unexhausted claims and, if he has not, the court should give him an opportunity to do so. If Gulliver has already amended his petition or amends it on remand to delete all but the claim of ...