Opinion
Case No. 2:05-CV-51 PGC.
April 13, 2005
ORDER
Petitioner, Christopher George Hart, has filed a habeas corpus petition. See 28 U.S.C.S. § 2254 (2005). Petitioner was sentenced in state court, and judgment was entered on October 18, 2004. He did not appeal.
Petitioner raises the following issues in this Court: (1) "Arrest was unconstitutional and resulted from defamation of character." (2) "Evidence obtained pursuant to an unlawful arrest." (3) "Judge Ronald Kunz was prejudicial, hostile and argumentative." (4) "Evidence favorable to [Petitioner] not admitted."
In general, before a petitioner may seek review of a state conviction in federal court, he must exhaust all remedies in the state court system. See id. § 2254(b) (c); Picard v. Connor, 404 U.S. 270, 275, 276, 92 S. Ct. 509, 512 (1971); Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at *2 (10th Cir. Nov. 9, 1998). To exhaust his remedies, Petitioner must properly present to the highest available Utah court the federal constitutional issues on which he seeks relief. See Picard, 92 S. Ct. at 512-13; Knapp, 1998 WL 778774, at *2-3. However, because Petitioner did not directly appeal, he raised none of the claims he asserts here. His claims are thus unexhausted.
This Court has two options regarding a petition stating only unexhausted claims. Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002) (citing 28 U.S.C.S. § 2254(b) (1) (A) (2005)). "First, it may dismiss the petition and allow the petitioner to return to state court to exhaust his claims. Second, it may deny the petition on the merits, notwithstanding the petitioner's failure to exhaust his state court remedies." Id. (emphasis added) (citing Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198, 1199 (1982); 28 U.S.C.S. § 2254(b) (2) (2005)).
"As indicated by Congress' use of the word `may,' the court has discretion whether to dismiss without prejudice or deny the petition on the merits under such circumstances." Hamill v. Ferguson, 937 F. Supp. 1517, 1522 n. 1 (D. Wyo. 1996).
Section 2254(b) "`does not contain the standard for determining when a court should dismiss a petition on the merits instead of insisting on complete exhaustion.'" Id. at 1234 (quoting Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir. 1997)). That section should therefore be read together with Granberry v. Greer, 481 U.S. 129, 107 S. Ct. 1671 (1987), which held that, if a court is satisfied that a habeas petition lacks merit, use of the exhaustion rule to dismiss the petition may merely result in futile state court litigation. See Moore, 288 F.3d at 1234 (citing Hoxsie, 108 F.3d at 1243; Granberry, 481 U.S. at 133). The Tenth Circuit has "observed that Lambrix v. Singletary, 520 U.S. 518, 524 (1997), suggests that in the interest of judicial economy, a court should deny a habeas petition that is easily resolvable against the petitioner on the merits rather than require complete exhaustion." Rudolph v. Galetka, No. 99-4207, 2000 WL 33407004, at *3 (D. Utah May 23, 2000). Other courts have described the dismissal of a petition on the basis of exhaustion rather than the merits as warranted when the petition "does not obviously lack merit," Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir. 1999), or is not "patently frivolous," Goines v. Walker, 54 F. Supp. 2d 153, 155 (E.D.N.Y. 1999).
Considering the grounds for habeas relief raised by Petitioner against the backdrop of § 2254(b) (2), the Court declines to use its discretion to dismiss this petition on the merits. See Rudolph, 2000 WL 33407004, at *3. First, it is not readily apparent that Petitioner has wholly failed to raise a "colorable federal claim." See id. The Court therefore cannot say that Petitioner's claims obviously have no merit or are patently frivolous. See id.; Mercadel, 179 F.3d at 276; Goines, 54 F. Supp. 2d at 155. Moreover, resolution of at least some of Petitioner's allegations would entail a review of trial court records. See Rudolph, 2000 WL 33407004, at *3.
When dismissing an unexhausted petition on the merits under § 2254(b)(2), "it is the entire petition, rather than individual claims, that must be dismissed." Moore v. Schoeman, 288 F. 3d 1231, 1234 (10th Cir. 2002). To dismiss this petition on the merits, then, this Court must be convinced that not one of Petitioner's claims is "colorable."
Accordingly, "the claims are not `easily resolvable' against the petitioner." Id. (citing Cowans v. Artuz, 14 F. Supp. 2d 503, 507 (S.D.N.Y. 1998) (dismissing petition for failure to exhaust when claims could not be resolved "without reviewing virtually the entire trial and appellate record")). And, "it is appropriate that [P]etitioner's . . . claim[s] be heard by a . . . [s]tate court before this Court passes on [them]." Goines, 54 F. Supp. 2d at 157.
IT IS HEREBY ORDERED that Petitioner's § 2254 petition is dismissed without prejudice.