456 U.S. 953 (1982)

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U.S. Supreme Court

BERGMAN v. BURTON , 456 U.S. 953 (1982)

456 U.S. 953

Jack BERGMAN, Warden, v. Arthur Jackson BURTON
No. 81-310 Supreme Court of the United States May 3, 1982

On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit. The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Rose v. Lundy, 455 U.S. 509 (1982).

Justice STEVENS, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. In Rose v. Lundy, 455 U.S. 509, the Court wrote: "There is no basis to believe that today's holdings will 'complicate and delay' the resolution of habeas petitions (STEVENS, J., post, at 550 [] ), or will serve to 'trap the unwary pro se prisoner.' (BLACKMUN, J., post, at 530 [] )." Id., at 520. Today, however, the Court interprets Rose as requiring further proceedings that can serve no purpose other than to "complicate and delay" the ultimate termination of this litigation. In 1975 the respondent was convicted in a Michigan state court of assault with intent to commit murder and was sentenced to life imprisonment. His conviction was affirmed by the Michigan Court of Appeals in 1977 and the Michigan Supreme Court denied leave to appeal. In 1980 the respondent sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan on two grounds : (1) that the trial court's instructions to the jury deprived him of due process of law; and (2) that he was denied the effective assistance of counsel. The District Court found no merit to the first claim and refused to consider the second because the respondent had not exhausted his state remedies as required by 28 U.S.C. 2254(b). The Court of Appeals reversed, holding that the instructions were improper under Sandstrom v. Montana, 442 U.S.

Page 456 U.S. 953 , 954

510, and that even though trial counsel had not objected to the erroneous instruction, Wainwright v. Sykes, 433 U.S. 72, did not foreclose relief because the Michigan Court of Appeals had reviewed the asserted errors in the trial court's jury charge and rejected the respondent's claims on the merits. The Sixth Circuit did not address the respondent's unexhausted claim of ineffective assistance of counsel.

The warden's petition for certiorari in this Court raises the Wainwright v. Sykes issue and three questions concerning Sandstrom v. Montana. [Footnote 1] The petition makes no reference to the unexhausted claim. Ignoring the four questions presented by the warden, the Court grants his petition, vacates the judgment of the Court of Appeals, and remands for reconsideration in the light of Rose v. Lundy.

Under Rose v. Lundy -if I read the Court's opinion correctly-after the case gets back to the District Court, that court must dismiss the habeas corpus petition that is now a part of the record. [Footnote 2] Thereafter, the respondent immediately will be entitled to resubmit a petition eliminating the unexhausted claim and confining his claim to relief to the issue [456 U.S. 953 , 955]

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