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A divided 2nd U.S. Circuit Court of Appeals on Thursday issued the latest in a series of opinions interpreting congressional limitations on judicial powers in handling habeas corpus petitions. By a 2-1 margin, the 2nd Circuit said that where a prisoner has not exhausted challenges to his conviction in state court, a federal court may deny the prisoner’s habeas corpus petition on the merits only when the petition has no hope of success. Second Circuit Judges Robert Katzmann and Amalya Kearse ruled that a lower court judge erred when he denied the petition of prisoner Desmond Jones on the merits but nonetheless found that an unexhausted state claim was substantial enough to allow an appeal to the 2nd Circuit. In a strong dissent from the 2nd Circuit majority, Judge Pierre N. Leval wrote: “Instead of applying the statute Congress passed, my colleagues have written their own … .” The statute at issue in Jones v. Senkowski, 00-2145, is 28 U.S.C. � 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The amendment, one of several made by Congress to restrict the availability of habeas relief in the federal courts, states that an “application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” “Thus,” Katzmann wrote, “the AEDPA explicitly confers upon the federal courts some discretion to deny (but not to grant) petitions based in part or in whole on unexhausted claims.” He said further: “On its face, however, the statute provides no indication whatsoever of the standard to be used by courts in exercising their discretion to deny unexhausted claims.” Reviewing the amendment’s legislative history, Katzmann said there was some indication that Congress intended to give judges the discretion to deny unexhausted habeas petitions on the merits where the claim was “hopeless,” or what Katzmann called “a circumstance in which it will be simpler and more expeditious for the district court to dismiss the petition than to engage in potentially onerous and prolonged inquiries regarding exhaustion.” And the appellate courts that have addressed the issue, he said, “have suggested that dismissal is appropriate only where the petition fails to advance a colorable claim or where the petition is clearly meritless.” Katzmann then announced the 2nd Circuit’s standard: “that an unexhausted claim should not be dismissed on the merits unless it is obvious that the claim is not one upon which habeas relief may be granted.” Jones had been convicted of multiple counts of robbery and burglary in 1996 and sentenced to serve 15 years in prison. In his petition to Eastern District of New York Senior Judge Jack B. Weinstein, Jones made several claims, including that the procedure used by police in which the robbery victims identified Jones was so suggestive that it amounted to a violation of Jones’ right to due process. Weinstein was confronted with a so-called “mixed petition,” in which Jones had exhausted his avenues of relief in state court on some claims but not on others. Weinstein said he had two options: either dismiss the petition for failure to exhaust state remedies, or pursuant to � 2254(b)(2), deny the petition on the merits. Since all of Jones’ contentions were “without any merit,” Weinstein said, “I see no reason to force the petitioner to go back to the state court further extending the proceedings and the burdens on the state court before the petitioner comes back here to the federal court to seek a petition for a writ.” Weinstein then erred, according to Judge Katzmann, when he granted Jones a certificate of appealability (COA) on a claim that the procedures used to identify him were suggestive. The “central question,” Katzmann said, was whether a court may use its discretion to deny an unexhausted claim on the merits when a petitioner has made a substantial enough showing of the denial of a constitutional right that a certificate of appealability is warranted. “[W]hile we agree with the district court that petitioner made the ‘substantial showing of the denial of a constitutional right’ necessary for the issuance of the COA … such a finding is at odds with a determination, pursuant to � 2254(b)(2), that it is obvious that the claim is not one upon which relief may be granted,” Katzmann said. The majority remanded the matter back to Judge Weinstein to either dismiss the petition without prejudice or retain jurisdiction and stay further proceedings pending the exhaustion of state remedies. In his dissent, Judge Leval said, “My colleagues have rewritten ‘may be denied on the merits,’ so that it now means – may NOT be denied on the merits ‘unless it is obvious that the claim is not one upon which habeas relief may be granted.’” In undertaking what he termed “this startling revision of the statute,” Leval said his fellow judges were “effectively undoing much of the benefit that Congress’s version would have provided, and imposing needless wasteful inefficiencies on the adjudication of petitions for habeas corpus.” Leval said the meaning of the statute was clear. “When dealing with a meritorious unexhausted claim, the court may not grant it; the court’s only option is to stay or dismiss it without prejudice by reason of failure to exhaust. The prisoner must first exhaust his state remedies,” he said. “As to a non-meritorious claim, the court is given the option to deny on the merits. The choice whether to dismiss for exhaustion or deny on the merits is left to the court’s discretion.” Georgia J. Hinde represented Jones. Assistant Attorney General Michael J. Keane, Deputy Solicitor General Michael S. Belohlavek and Assistant Solicitor General Marion Buchbinder represented New York state.

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