The opinion of the court was delivered by: Mukasey, District Judge.
Hazen Solomon petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (1982). For the reasons set forth below, the
petition is dismissed.
Solomon claims that he was denied his Sixth Amendment right to
effective assistance of counsel in three ways: (1) his trial
counsel's failure to pursue a meritorious Bartolomeo motion,
see People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894,
423 N.E.2d 371 (1981); (2) his trial counsel's failure to
request a jury charge on the affirmative defense of extreme
emotional disturbance and his trial counsel's "elicitation" of
incriminating hearsay testimony; and (3) his trial counsel's
failure to present mitigating evidence about Solomon's
background at trial and sentencing. In addition, Solomon claims
that his Fourteenth Amendment due process rights were violated
by the trial judge's imposition of an "excessive sentence."
(Pet. at 6)
Petitioner has exhausted his state court remedies on the first
two Sixth Amendment claims and the Fourteenth Amendment claim.
However, he has not exhausted the third Sixth Amendment claim,
raising it for the first time in this petition.
Generally, a state prisoner must exhaust available state court
remedies before seeking federal habeas review. See, e.g.,
28 U.S.C. § 2254 (1980); Rose v. Lundy, 455 U.S. 509, 102 S.Ct.
1198, 71 L.Ed.2d 379 (1982); Picard v. Connor, 404 U.S. 270,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Irvin v. Dowd,
359 U.S. 394, 404-05, 79 S.Ct. 825, 831-32, 3 L.Ed.2d 900 (1959); Ex
parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886).
This requirement, which is based on principles of federalism
and comity, provides state courts with "an initial `opportunity
to pass upon and correct' alleged violations of its prisoners'
federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92
S.Ct. 407, 409, 30 L.Ed.2d 418
(1971) (quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822,
848, 9 L.Ed.2d 837 (1963)). Moreover, "[t]he exhaustion
requirement recognizes that state courts are bound to safeguard
the federal rights of state criminal defendants." Daye v.
Atty. Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982); see
also, Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93
S.Ct. 1123, 35 L.Ed.2d 443 (1973).
Only unusual cases justify exceptions to the exhaustion
requirement. As the Supreme Court stated in Ex parte Hawk,
321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572 (1944)
(quoting United States ex rel. Kennedy v. Tyler, 269 U.S. 13,
17, 46 S.Ct. 1, 2, 70 L.Ed. 138 (1925)), federal courts should
interfere with the "administration of justice in the state
courts only `in rare cases where exceptional circumstances of
peculiar urgency are shown to exist.'" See also Tyler,
269 U.S. 1, 17, 46 S.Ct. 1, 70 L.Ed. 138 (1925) ("In the regular
and ordinary course of procedure, the power of the highest
state court in respect of such questions should first be
Applying these principles, the Supreme Court, in Rose v.
Lundy, found that habeas petitions containing both exhausted
and unexhausted claims present no "exceptional" circumstance.
Accordingly, the Court held that district courts must dismiss
such mixed petitions in their entirety. This rule, the Court
reasoned, best serves the interests of comity because "strict
enforcement" of the exhaustion requirement encourages habeas
petitioners "to exhaust all of their claims in state court and
to present the federal court with a single habeas petition."
455 U.S. at 520, 102 S.Ct. at 1204. Moreover, a strict rule
reduces "piecemeal litigation." Id.
In Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95
L.Ed.2d 119 (1987), the Court found that a certain subset of
mixed petitions — those to which the state had waived a valid
exhaustion defense — presented an exceptional circumstance.
Therefore, the Court held that courts of appeals could, in
their discretion, reach the merits of mixed habeas petitions in
two waiver situations: (1) when the unexhausted claim raises
"not even a colorable federal claim," id. at 135, 107 S.Ct.
at 1675; and (2) when "a full trial has been held in the
district court and it is evident that a miscarriage of justice
has occurred." Id. In these two situations, the Court found
that it may be in the interest of both comity and judicial
efficiency to reach the merits of the petition. In the first,
the state has failed to raise a valid exhaustion defense,
thereby indicating that it believes it has no interest in
having its judicial system pass upon the claim. In addition,
the federal court of appeals has determined that the state has
no interest in invoking the exhaustion defense because the
unexhausted claim is frivolous. In the second scenario, the
interests of justice demand review on the merits in order to
avoid "unnecessary delay in granting relief that is plainly
In Plunkett v. Johnson, 828 F.2d 954 (2d Cir. 1987), the
Second Circuit applied Granberry to district courts when it
held that the same reasoning that informed Granberry "leads
to the conclusion that district courts must also exercise their
discretion to determine what effect to give to a state's waiver
of the exhaustion defense. . . ." Id. at 956. Therefore, if
Granberry can be read to apply to non-waiver as well as
waiver situations, Plunkett authorizes me to reach the merits
of Solomon's petition if, in my discretion, I find that doing
so would further the interests of comity and judicial
The sole question at hand is whether Rose or Granberry
controls habeas petitions that contain unexhausted, as well as
exhausted, claims when the state has not waived a valid
exhaustion defense. Although Solomon's unexhausted claim is
probably frivolous, it is impossible to conclude that
Granberry authorized me to hear the petition on its merits.
If I were to read Granberry as having invested federal courts
with the discretion to hear mixed petitions in all cases, and
not just in waiver cases, Rose would be a nullity.
Although the district court in Best v. Superintendent of
Clinton Correctional Facility, 1990 WL 164673, 1990 U.S. Dist.
LEXIS 14213 (E.D.N.Y. Oct. 17, 1990), read Davis v. Lansing,
851 F.2d 72 (2d Cir. 1988), as having extended Plunkett to
non-waiver scenarios, I decline to read Davis that way.
Best asserted that Davis "stated that the district court
need not rely on the state's waiver to dispense with exhaustion
issues and may proceed to the merits of a habeas petition, so
long as it was `perfectly clear' that no meritorious federal
claim existed." 1990 WL 164673 at *2, 1990 U.S. Dist. LEXIS
14213 at *4. However, I do not read Davis to alter the basic
waiver requirement set forth in Granberry. First, the state
in Davis effectively waived the exhaustion defense. See 851
F.2d at 76 ...