No substantive capital cases are reported this week. Justice Breyer and Justice Thomas squared off this week in a pair of certiorari denials. The war between the justices seemingly indicates a continued Supreme Court interest in the role of international law in American jurisprudence and an equally undecided direction that interest might take. Justice Breyer's dissent is posted in full form.

In Depth this week covers the concept of exhaustion.

Full search of all back issues is now available at http://capitaldefenseweekly.com/index.html thanks to my fellow techno-geeks at atomz.com. Currently certiorari petitions for all capital cases pending before the United States Supreme Court in which certiorari has been granted are either online or awaiting upload, if you need something don't be afraid to ask.

Finally, if you have in your possession any item you want to share with the community, a brief, motion, pleading, clemency petition, certiorari petition, etc., please feel free to forward it electronically or contact me karlkeys@capitaldefenseweekly.com (or at 617.249.0219 FREE to make other arrangements). Any file format is welcome, we even taken roughs. If there is a specific item not readily accessible here, please feel free to email and ask for availability, however, be forewarned the website does not keep the office lights on CJA vouchers do so turn around may be slow on occasion.

Supreme Court

Knight v. Florida Justice Breyer dissenting on the denial of certiorari:

These petitions ask us to consider whether the Eighth Amendment prohibits as “cruel and unusual punishmen[t]” the execution of prisoners who have spent nearly 20 years or more on death row. Both of these cases involve astonishingly long delays flowing in significant part from constitutionally defective death penalty procedures. Where a delay, measured in decades, reflects the State’s own failure to comply with the Constitution’s demands, the claim that time has rendered the execution inhuman is a particularly strong one. I believe this Court should consider that claim now. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from denial of certiorari). . . .

It is difficult to deny the suffering inherent in a prolonged wait for execution–a matter which courts and individual judges have long recognized. See Lackey, supra, at 1045—1047. More than a century ago, this Court described as “horrible” the “feelings” that accompany uncertainty about whether, or when, the execution will take place. In re Medley, 134 U.S. 160, 172 (1890). The California Supreme Court has referred to the “dehumanizing effects of … lengthy imprisonment prior to execution.” People v. Anderson, 6 Cal. 3d 628, 649, 493 P.2d 880, 894 (1972). In Furman v. Georgia, supra, at 288—289 (concurring opinion), Justice Brennan wrote of the “inevitable long wait” that exacts “a frightful toll.” Justice Frankfurter noted that the “onset of insanity while awaiting execution of a death sentence is not a rare phenomenon.” Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (dissenting opinion). See Strafer, Volunteering for Execution, 74 J. Crim. L. & C. 860, 872, n. 44 (1983) (a study of Florida inmates showed that 35% of those confined on death row attempted suicide; 42% seriously considered suicide). And death row conditions of special isolation may well aggravate that suffering. See Connolly, Better Never Than Late, 23 New Eng. J. on Crim. & Civ. Confinement 101, 121 (1997); Strafer, supra, at 870—871, n. 37.

At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment’s basic retributive or deterrent purposes. Lackey, supra, at 1046. Nor can one justify lengthy delays by reference to constitutional tradition, for our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades. See Pratt v. Attorney General of Jamaica, [1994] 2 A. C. 1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) (Great Britain’s “Murder Act” of 1751 prescribed that execution take place on the next day but one after sentence).

A growing number of courts outside the United States–courts that accept or assume the lawfulness of the death penalty–have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel. In Pratt v. Attorney General of Jamaica, supra, for example, the Privy Council considered whether Jamaica lawfully could execute two prisoners held for 14 years after sentencing. The Council noted that Jamaican law authorized the death penalty and that the United Nations Committee on Human Rights has written that “ ‘capital punishment is not per se unlawful under the [Human Rights] Covenant.’ ” Id., at 26, 4 All E. R., at 780. But the Privy Council concluded that it was an “inhuman act to keep a man facing the agony of execution over a long extended period of time,” id., at 29, 4 All E. R., at 783, and the delay of 14 years was “shocking,” id., at 33, 4 All E. R., at 786. It held that the delay (and presumptively any delay of more than five years) was “ ‘inhuman or degrading punishment or other treatment’ ” forbidden by Jamaica’s Constitution unless “due entirely to the fault of the accused.” Id., at 29, 4 All E. R., at 783.

The Supreme Court of India has held that an appellate court, which itself has authority to sentence, must take account of delay when deciding whether to impose a death penalty. Sher Singh v. State of Punjab, A. I. R. 1983 S. C. 465. A condemned prisoner may ask whether it is “just and fair” to permit execution in instances of “[p]rolonged delay.” Id., at 470—471. The Supreme Court of Zimbabwe, after surveying holdings of many foreign courts, concluded that delays of five and six years were “inordinate” and constituted “ ‘torture or . . . inhuman or degrading punishment or other such treatment.’ ” Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, [1993] 1 Zimb. L. R. 239, 240, 269 (S) (Aug. 4, 1999), http://www.law.wits.ac.za/salr/catholic.html. And the European Court of Human Rights, interpreting the European Convention on Human Rights, noted the convention did not forbid capital punishment. But, in the Court’s view, the convention nonetheless prohibited the United Kingdom from extraditing a potential defendant to the Commonwealth of Virginia–in large part because the 6- to 8-year delay that typically accompanied a death sentence amounts to “cruel, inhuman, [or] degrading treatment or punishment” forbidden by the convention. Soering v. United Kingdom, 11 Eur. Ct. H. R. (ser. A), pp. 439, 478, ¶111 (1989).

Not all foreign authority reaches the same conclusion. The Supreme Court of Canada, for example, held that Canadian constitutional standards, though roughly similar to those of the European Convention on Human Rights, did not bar extradition to the United States of a defendant facing the death penalty. Kindler v. Minister of Justice, [1991] 2 S. C. R. 779, 838 (joint opinion). And the United Nations Human Rights Committee has written that a delay of 10 years does not necessarily violate roughly similar standards set forth in the Universal Declaration of Human Rights. Views adopted by the United Nations Human Rights Committee, 44th Sess., Mar. 30, 1992, In re: Barrett v. Jamaica (Nos. 270/1988 and 271/1988) §8.4. Given the closeness of the Canadian Court’s decision (4 to 3) and language that the United Nations Human Rights Committee used to describe the ten-year delay (“disturbingly long”), one cannot be certain what position those bodies would take in respect to delays of 19 and 24 years.

Obviously this foreign authority does not bind us. After all, we are interpreting a “Constitution for the United States of America.” Thompson v. Oklahoma, 487 U.S. 815, 868, n. 4 (1988) (Scalia, J., dissenting). And indeed, after Soering, the United States Senate insisted on reservations to language imposing similar standards in various human rights treaties, specifying, for example, that the language in question did not “restrict or prohibit the United States from applying the death penalty consistent with the … Constitution, including any constitutional period of confinement prior to the imposition of the death penalty.” 136 Cong. Rec. 36192—36199 (Oct. 27, 1990) (U.S. Senate Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

Nonetheless, the treaty reservations say nothing about whether a particular “period of confinement” is “constitutional.” And this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances. In doing so, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment. Thompson v. Oklahoma, supra, at 830—831 (opinion of Stevens, J.) (considering practices of Anglo-American nations regarding executing juveniles); Enmund v. Florida, 458 U.S. 782, 796—797, n. 22 (1982) (noting that the doctrine of felony murder has been eliminated or restricted in England, India, Canada, and a “number of other Commonwealth countries”); Coker v. Georgia, 433 U.S. 584, 596, n. 10 (1977) (observing that only 3 of 60 nations surveyed in 1965 retained the death penalty for rape); Trop v. Dulles, 356 U.S. 86, 102—103 (1958) (noting that only 2 of 84 countries surveyed imposed denationalization as a penalty for desertion). See also Washington v. Glucksberg, 521 U.S. 702, 710, n. 8, and 718—719, n. 16 (1997) (surveying other nations’ laws regarding assisted suicide); Culombe v. Connecticut, 367 U.S. 568, 583—584, n. 25, and 588 (1961) (considering English practice concerning police interrogation of suspects); Kilbourn v. Thompson, 103 U.S. 168, 183—189 (1881) (referring to the practices of Parliament in determining whether the House of Representatives has the power to hold a witness in contempt). Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a “decent respect to the opinions of mankind.”

In these cases, the foreign courts I have mentioned have considered roughly comparable questions under roughly comparable legal standards. Each court has held or assumed that those standards permit application of the death penalty itself. Consequently, I believe their views are useful even though not binding.

Further, the force of the major countervailing argument is diminished in these two cases. That argument (as set out by the Human Rights Commission) recognizes that there must be an “element of delay between the lawful imposition of a sentence of death and the exhaustion of available remedies.” Barrett, supra, §8.4. It claims that “even prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies.” Ibid. As the Canadian Supreme Court noted, “a defendant is never forced to undergo the full appeal procedure, but the vast majority choose to do so. It would be ironic if delay caused by the appellant’s taking advantage of the full and generous avenue of the appeals available to him should be viewed as a violation of fundamental justice.” Kindler, supra, at 838; see also Richmond v. Lewis, 948 F.2d 1473, 1491—1492 (CA9 1990).

The cases before us, however, involve delays which resulted in large part from the States’ failure to apply constitutionally sufficient procedures at the time of initial sentencing. They also involve extensive delays of close to two decades or more. The petitioners argue that the state-induced portion of the delay, perhaps up to 12 years in Moore’s case, up to 15 years in Knight’s, should not be charged against them in any constitutional calculus. Cf. Pratt, 2 A. C., at 29, 4 All E. R., at 783 (counting against the prisoner only that portion of the delay caused by “escape … or frivolous and time wasting resort to legal procedures”). Twenty years or more could not be necessary to provide a “reasonable time for appeal and consideration of reprieve.” Id., at 33, 4 All E. R., at 786. For these reasons, I think petitioners’ argument cannot be rejected out of hand.

Nor do I agree with Justice Thomas that the lower courts have “resoundingly rejected” petitioner’s claim. Ante, at 4. I have found about two dozen post-1995 lower court cases in which prisoners have raised Lackey claims. Most involve procedural failings that in part or in whole determined the outcome of the case. Of the eight cases (other than the two cases below) that decided Lackey claims solely on the merits, only four involve lengthy delays for which the State arguably bears responsibility. See Bell v. State, 938 S. W. 2d 35 (Tex. Crim. App. 1996) (20 years; conviction overturned once); Ex parte Bush, 695 So. 2d 138 (Ala. 1997) (16 years; conviction overturned twice); State v. Smith, 280 Mont. 158, 931 P.2d 1272 (1996) (13 years; sentence overturned once); People v. Massie, 19 Cal. 4th 550, 967 P.2d 29 (1998) (16 years; sentence overturned once). Neither the opinions in these four cases, nor those in any other of the lower court cases that I have found, discuss the potential significance of that state responsibility at any length. Thus, although the experiment may have begun, it is hardly evident that we “should consider the experiment concluded.” Ante, at 4—5.

Finally, the constitutional issue, even if limited to delays of close to 20 years or more, has considerable practical importance. Available statistics indicate that as of two years ago, December 1997, 24 prisoners sentenced to death had been on death row for more than 20 years. At that time 125 prisoners on death row had been sentenced in or before 1980 and therefore may now fall within the relevant category. U.S. Dept. of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment 1997, p. 13 (Dec. 1998). Given these figures and the nature of the question, despite the absence of a division among the lower federal courts, this Court should consider the issue.:

Habeas Cases

Swoopes v. Sublett (9th Cir.) "[W]e conclude that Arizona state prisoners need not appeal an Arizona Court of Appeals' denial of post-conviction relief to the Arizona Supreme Court in order to exhaust their state remedies for federal habeas corpus purposes, except in capital cases or cases involving the imposition of a life sentence. . . . O'Sulllivan requires that before a state prisoner files a federal habeas petition, he or she must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." 119 S. Ct. at 1732. Arizona has declared that its "complete round" does not include discretionary review before the Arizona Supreme Court."

Robinson v. United States (7th Cir) Writ granted in part. "Double jeopardy claim, we remand to the district court with instructions to vacate Robinson's conviction and sentence under either the CCE count or conspiracy count, and to direct the United States to refund the excess $50 assessment." As to the procedural questions

the government argues that if Robinson's guilty plea did not waive his double jeopardy claim it is barred by Teague v. Lane, 506 U.S. 461, 467 (1993). The government concedes that Rutledge created a new rule of law, but contends that under Teague new rules may not be applied retroactively to cases on collateral review. However, in Bousley v. United States, 523 U.S. 614, 620 (1998), the Supreme Court made it clear that Teague's retroactivity bar applies only to new rules of criminal procedure not to changes in substantive law. Thus, the government is incorrect; Teague has no bearing on Robinson's double jeopardy claim.

Bobb v. Senkowski (2nd Cir) Relief denied on claims that Petitioner was denied his constitutional right to a public trial when the state trial judge closed the courtroom during the testimony of an undercover police officer.

Prisoner's Rights/Governmental Misconduct Cases

Nevada v. Hicks (9th Cir) Law enforcement officials purportedly violated constitutional rights and committed torts on tribally owned property " The tribal court has civil jurisdiction in this case based on the Tribe's right to adjudicate disputes arising out of actions within tribal regulatory authority that take place on Indian land. The district court did not err in holding that the tribal court has jurisdiction. Nevada's claims of sovereign and qualified immunity on behalf of the state officials and of Hicks' failure to state a claim against William Molini have not been exhausted in tribal court. Although exhaustion is not a jurisdictional prerequisite, it is required as a matter of comity. Strate, 520 U.S. at 453. The district court did not err in declining to reach the merits of those claims."

Grayson v. Peed (4th Cir) PCP ingestion and cardiac condition vitiated any liability on the part of state actors for person dying in police detention.

Speigel v. Cortese (7th Cir) "[Q]ualified immunity shields a police officer who concludes that there is probable cause to arrest a suspect based on a putative victim's allegations that the suspect denies.

Agushi v. Duerr (7th Cir) Excessive force claims by plaintiff that the "district court abused its discretion in admitting testimony regarding her husband's physical abuse of their daughter Olivia, and in refusing to allow Olivia to testify that she heard Officer Duerr state that she wanted to "ruin" both of Olivia's parents."

In Depth

This week continues the series on the nuts and bolts of habeas litigation, this week exhaustion (from various sources at http://capdefnet.org).

Bland v. Calif. Dept. of Corrections, 20 F.3d 1469, 1474 (9th Cir.), cert. denied, 115 S.Ct. 357 (1994), Another good exhaustion "fair presentation" case; additionally, panel held that state essentially admitted petitioner's factual allegations when it failed to dispute the allegations in the petition and traverse in its return and failed to request an evidentiary hearing.

Story v. Kindt, 26 F.3d 402, 405 (3rd Cir.), cert. denied, 115 S.Ct. 593 (1994), Petitioner did not have to exhaust state remedies due to nine year delay in state post-conviction proceedings; the panel stated that federal courts need not defer to the state judicial process when no appropriate remedy exists at the state level or when the state process would frustrate the use of an available remedy.

Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994), New factual allegations supporting claim in federal court do not render a claim unexhausted unless they fundamentally alter the legal claim already considered by the state courts; here, allegation that interpreter intentionally misadvised petitioner did not fundamentally alter claim that petitioner was induced to plead guilty by grossly incorrect advice regarding the consequences of a guilty plea.

Beauchamp v. Murphy, 37 F.3d 700, 704 (1st Cir. 1994), cert. denied, 115 S.Ct. 1365 (1995), Another good fair presentation case recognizing that state court would not have viewed the claim differently had the word "federal" appeared in the heading to the issue.

Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir. 1994), cert. denied, 115 S.Ct. 940 (1995), Good discussion of fair presentation, discussing ways in which petitioner can fairly present claims to state courts including: citing a specific provision of the Constitution; alerting the state court to the claim's federal nature through the substance of the claim; relying on federal constitutional precedents; claiming a particular right guaranteed by the Constitution; and, asserting a state law claim that is "functionally identical" to a federal claim.

Laswell v. Frey, 45 F.3d 1011, 1013-14 (6th Cir.), cert. denied, 116 S.Ct. 199 (1995), Court held that petitioner's pre-state-court trial double jeopardy claim was exhausted.

Williams v. Washington, 59 F.3d 673, 677-78 (7th Cir. 1995), Petitioner fairly presented her ineffective assistance of counsel claim; in applying this rule courts should "avoid hypertechnicality."

Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996), Petitioner fairly presented his claim that counsel was ineffective; he "explicitly alleged violations of his right to effective assistance of counsel and his Fourteenth Amendment due process rights."

Allen v. Attorney General of State of Maine, 80 F.3d 569, 573 (1st Cir. 1996), State appellate review of trial court's decision that suspension of driver's license did not preclude prosecution for drunk driving was not a prerequisite to seeking federal habeas relief where recent state supreme court decision made clear that seeking review in this case would be futile and no reason existed to believe state court would reverse its position if petitioner presented the issue on appeal.

Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996), cert. denied, 117 S.Ct. 530 (1996), In determining whether claim has been fairly presented to state courts, court requires that "same factual arguments and legal theories should be presented in both state and federal claims." Petitioner's state court claim that counsel was ineffective in sentencing phase for failure to seek mental evaluation was sufficient to preserve claim that counsel was similarly ineffective in guilt phase for federal habeas review.

O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996), cert. denied, 117 S.Ct. 742 (1997), Fact that district court held an evidentiary hearing on some issues raised in mixed habeas petition did not warrant excusal of petitioner’s failure to exhaust some of the claims presented; petition was therefore dismissed to allow petitioner to exhaust state remedies.

Victor v. Hopkins, 90 F.3d 276, 279 (8th Cir. 1996), cert. denied, 117 S.Ct. 1091 (1997), When mixed federal habeas petition is filed in capital case, district court has no authority to hold petition in abeyance or maintain stay of execution pending exhaustion; proper procedure is to dismiss the petition and lift the federal stay of execution.

Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996), cert. denied, 117 S.Ct. 266 (1996), Inordinate delay in receiving a ruling on state post conviction application may satisfy exhaustion and allow petitioner to bring federal habeas petition.

Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th Cir. 1996), Exhaustion is not a prerequisite to court of appeals’ consideration of an application for leave to file a second or successive habeas petition; if claim is unexhausted, that is an issue for the district court to take up once leave to file the petition has been granted.

Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996), Petition raising claims of ineffective assistance of counsel and actual innocence was dismissed for failure to exhaust state remedies where, although the claims had been presented to state courts, petitioner had offered significant additional evidence not presented to the state courts in support of his claims in federal court and state courts had indicated that relief was available to petitioner. State’s attempted waiver of exhaustion was not accepted by court of appeals where large body of factual information had not been presented to state courts, and state’s reason for waiving exhaustion, to prevent petitioner from politicizing his case, was "questionable at best."

Huynh v. King, 95 F.3d 1052, 1060 (11th Cir. 1996), Court refused to find petitioner’s double jeopardy claim unexhausted where state responded on direct appeal to several possible interpretations of the claim as it was raised at that stage and argued the merits of the claim in its direct appeal answer brief. State’s claim that its "discussion of the merger issue [on direct appeal] was inadvertent and gratuitous" was rejected.

Doctor v. Walters, 96 F.3d 675, 683 (3rd Cir. 1996), Habeas petition dismissed for failure to exhaust state remedies where, although petitioner’s claims would likely be barred because they were not raised on appeal and because petitioner would be deemed to have waived his appeal rights under the state fugitive forfeiture rule, petitioner’s claim that his conviction in absentia was not the result of an actual trial in absentia, if true, could constitute a miscarriage of justice sufficient to excuse his default and allow him to pursue relief under the Pennsylvania Post Conviction Relief Act.

Matthews v. Evatt, 105 F.3d 907, 914 (4th Cir. 1997), cert. denied, 118 S.Ct. 102 (1997), The court held that neither the state court’s statutory review to determine whether petitioner’s death sentence was imposed under the influence of passion, prejudice or other arbitrary factors nor its in favorem vitae review was sufficient to exhaust petitioner’s claim that the prosecutor’s decision to seek the death penalty against him was racially motivated.

Gomez v. Acevedo, 106 F.3d 192, 195-96 (7th Cir. 1997), cert. granted, 118 S.Ct. 37 (1997), (vacating judgment for reconsideration in light of Lindh), opinion on remand, Gomez v. DeTella, 1998 WL 60383 (7th Cir. Feb. 6, 1998), Petitioner exhausted his sufficiency of the evidence claim despite failure to raise it on appeal from intermediate appellate court to state supreme court or to seek state post-conviction relief where attempt to seek PCR would have been futile because claim would have been barred by res judicata since intermediate appellate court considered it, or by waiver since claim was not raised in petition to state supreme court.

Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997), cert. denied, 117 S.Ct. 2488 (1997), The court found "arguable factual commonality" between petitioner’s state appellate court claim that the trial court’s ruling precluding certain testimony prevented counsel from providing effective assistance, and his federal habeas claim that trial counsel was ineffective. This "arguable factual commonality" was sufficient for purposes of fair presentation to allow the federal court to reach the merits of the IAC claim.

Murray v. Wood, 107 F.3d 629, 631 (8th Cir. 1997), Habeas petitioner to whom non-futile state post-conviction remedy is available should be required to pursue such remedy unless state waives exhaustion requirement.

Calderon v. U.S. Dist. Court for. E.D. of Cal. (Gordon), 107 F.3d 756, 760-61 (9th Cir. 1997), cert. denied, 118 S.Ct. 265 (1997), Because petitioner’s amended petition contained unexhausted claims, dismissal was required under Rose; dismissal in this circumstance did not preclude district court from considering ex parte funding requests made pursuant to § 848(q)(9).

Hoxsie v. Kerby, 108 F.3d 1239, 1242 (10th Cir. 1997), cert. denied, 118 S.Ct. 126 (1997), The court noted that "[the AEDPA] codifies the holding in Granberry [v. Greer, 481 U.S. 129, 134 (1987),] by authorizing denial of a petition on the merits despite failure to exhaust state remedies….Because § 2254(b)(2), standing alone, does not contain the standard for determining when a court should dismiss a petition on the merits instead of insisting on complete exhaustion, we read § 2254(b)(2) in conjunction with Granberry".

Reutter v. Crandel, 109 F.3d 575, 577 (9th Cir. 1997), cert. denied, 118 S.Ct. 142 (1997), Petitioner exhausted his "as applied" confrontation clause challenge to Alaska statute allowing closed circuit video testimony of child victims where his prayer for relief on direct appeal alleged that application of the statute "deprived the petitioner of ‘fair confrontation of the child witness, and of the right to a fair trial.’" But this language was not enough to fairly present petitioner’s facial challenge to the same statute, thus rendering the petition mixed.

Dorsey v. Kelly, 112 F.3d 50, 54 (2nd Cir. 1997), Pro se petitioner fairly presented his IAC claim to the state courts where he asserted in state proceedings that he had been denied effective assistance of counsel in violation of the federal constitution, indicated that lab reports in question were exculpatory, and "connected his ineffective assistance claim with his counsel’s failure (a) to introduce the lab reports and (b) to challenge those parts of the prosecution’s evidence and summation that were inconsistent with those reports."

Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1996), cert. denied, 118 S.Ct. 330 (1997), Where petitioner is denied due process as a result of delay in adjudication of state collateral review petition, the appropriate remedy is to excuse the federal habeas corpus exhaustion requirement.

Porter v. Gramley, 112 F.3d 1308, 1315 (7th Cir. 1997), cert. denied, 118 S.Ct. 886 (1998), The Seventh Circuit explained that "[a] habeas petitioner must only ‘fairly alert’ the state court of the federal constitutional grounds for his claim," and that "’what is important is that the substance of the federal claim be presented fairly.’" (internal citations omitted). Petitioner’s contention in federal court that he was denied an impartial jury met this standard where his brief on direct appeal argued that "’The trial court improperly denied defendant’s motion for new trial…where the trial court failed to inquire in depth as to the existence of bias or prejudice of a juror after verdict.’"

Moleterno v. Nelson, 114 F.3d 629, 635 (7th Cir. 1997), Petitioner did not fairly present his claim that the Illinois trial court’s instructions shifted the burden of proof in violation of the federal constitution. Use of the words "’due process and fair trial’" in the concluding paragraph of his opening brief on direct appeal, and citations to state cases characterizing the issue as "’constitutional’" in his reply brief only for the purpose of arguing that a state court decision on this issue favorable to petitioner applied retroactively, were not enough to constitute "presentment of an error of ‘constitutional dimension.’"

Yahweh v. Zavaras, 1997 WL 303657 at *3 (10th Cir. June 6, 1997) (unpublished), cert. denied, 118 S.Ct. 892 (1998), The Tenth Circuit rejected petitioner’s contention that presentation of his speedy trial claim to Colorado courts would be futile. The court pointed out that the adverse state court decision on the issue petitioner sought to raise was not binding on any other appellate court in Colorado, and that Colorado courts "have recognized the defect in the Colorado Speedy Trial Act" and have been "willing to recognize" federal speedy trial claims even when state law did not give rise to a claim.

In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997), The court held that § 2244(b) did not require petitioner, whose initial habeas petition was dismissed for failure to exhaust state remedies, to seek leave from the court of appeals to refile following exhaustion. The court observed that "nothing in the AEDPA affects the determination of what constitutes a ‘second or successive’ petition," and concluded that petitioner’s "refiled petition is merely a continuation of his first collateral attack, not a ‘second or successive’ petition within the meaning of § 2244(b)."

Morris v. Bell, 1997 WL 560055 (6th Cir. Sept. 5, 1997) (unpublished), cert. denied, 118 S.Ct. 1169 (1998), The district court properly dismissed the death-sentenced petitioner’s mixed petition rather than holding it in abeyance where petitioner’s second state PCR application was still pending. The court rejected petitioner’s contention that forcing him to file anew would prejudice him by subjecting him to the stricter standard of review set forth in new § 2254(d), stating that it did "not give much credence to Morris’s underlying assumption that the state courts will fail to adjudicate his federal claims properly." Id. at *2.

Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997), Petitioner had exhausted state remedies with regard to his double jeopardy claim, and thus was not required to raise the claim on direct appeal, where he sought a pre-trial state writ of habeas corpus on the issue, and the claim had been before the Texas Court of Criminal Appeals twice. Additionally, the court construed § 2254(b)(2) to allow only for the denial of an entire mixed petition, as opposed to selective denial of meritless unexhausted claims.

Smith v. Horn, 120 F.3d 400, 407 (3rd Cir. 1997), cert. denied sub nom. District Attorney of Bucks County v. Smith, 118 S.Ct. 1037 (1998), Where the issue of exhaustion has not been raised in the district court, the court of appeals has discretion to decide whether the interests of comity and federalism are better served by proceeding to the merits or requiring additional state and federal proceedings.

McWilliams v. State of Colorado, 121 F.3d 573, 575 (10th Cir. 1997), The Tenth Circuit "accept[ed] the view espoused by every circuit that has considered this issue since enactment of the [AEDPA]: a habeas petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies does not qualify as a ‘second or successive’ application within the meaning of § 2244(b)(1)."

Harpster v. Ohio, 128 F.3d 322, 325 (6th Cir. 1997), cert. denied, 118 S.Ct. 1044 (1998), "[T]he federal adjudication of double jeopardy claims raised on pre-trial petitions for habeas corpus is appropriate when those claims have been raised and rejected in the state trial court and under state law there is no right to interlocutory appeal."

Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997), Petitioner’s assertion of his ineffective assistance claim for the first time in his petition for certiorari filed with the Wyoming Supreme Court did not satisfy the fair presentation requirement because certiorari review in Wyoming "is discretionary and limited."

Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997), "[A]lthough a habeas petitioner will be allowed to present ‘bits of evidence’ to a federal court that were not presented to the state court that first considered his claim, evidence that places the claims in a significantly different legal posture must first be presented to the state courts." (internal citation omitted).

Adelson v. DiPaola, 131 F.3d 259, 262-63 (1st Cir. 1997), Describing the fair presentation requirement, the court stated that "a habeas petitioner bears a heavy burden to show that he fairly and recognizably presented to the state courts the factual and legal bases of "his federal claim." (emphasis added). The court also cautioned that "mere incantation of constitutional buzzwords, unaccompanied by any federal constitutional analysis, does not suffice to carry the burden of demonstrating fair presentment of a federal claim").

Earhart v. Johnson, 132 F.3d 1062, 1065-66 (5th Cir. 1998), The Fifth Circuit affirmed the district court’s decision to accept Texas’ waiver of exhaustion in this capital case in which petitioner filed his federal habeas petition in order to get a stay of execution after the state courts refused to withdraw his execution date and appoint counsel for an initial round of state habeas proceedings; the Fifth Circuit reasoned that all of petitioner’s claims were either questions of law or questions concerning facts already in the record, and therefore, in this case, comity did not require that the state courts be given the first opportunity to pass on petitioner’s claims.

Lambert v. Blackwell, 134 F.3d 506, 514-15 (3rd Cir. 1997), The court observed that, "under the AEDPA, a district court may no longer infer that a state has waived the nonexhaustion defense from its failure to invoke the defense expressly," and that § 2254(b)(2) "codifies the holding in Granberry v. Greer, 481 U.S. 129 (1987), by conferring upon the district court the authority to deny a habeas petition on the merits despite the petitioner’s failure to exhaust state remedies." After noting that § 2254(b)(2) "does not provide a standard for determining when a court should dismiss a petition on the merits rather than requiring complete exhaustion," the court adopted its reading of Granberry’s standard -- failure to raise "even a colorable federal claim" -- as the standard for dismissal on the merits of unexhausted claims pursuant to § 2254(b)(2). Thus, "if a question exists as to whether the petitioner has stated a colorable federal claim, the district court may not consider the merits of the claim if the petitioner has failed to exhaust state remedies and none of the exceptions set forth in sections 2254(b)(1)(B)(i) and (ii) applies." Finally, with regard to Granberry, the court remarked that, "[g]iven the new express waiver requirement of the AEDPA, it is doubtful that Granberry continues to have any import in a situation other than where the state has expressly waived the nonexhaustion defense." Applying these principles to this case, in which the district court reached the merits, granted the writ and ordered petitioner’s immediate release over the state’s exhaustion defense, the Third Circuit vacated the district court’s order and remanded with instructions to dismiss the petition without prejudice).

Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 954 (9th Cir. 1998), The court refused to relax the requirement that petitioner, a Native American, exhaust his tribal court appellate remedies because (1) the tribal court appellate process was made available to petitioner; (2) petitioner’s tribal court notice of appeal indicated that he did not consider the remedies available in that court to be futile; (3) the tribal court’s "summary form of appeal" is not presumptively futile or inadequate; and, (4) petitioner had not shown "either that exhaustion would have been futile or that the tribal court of appeals offered no adequate remedy."

Calderon v. U.S. Dist. Court for N.D. Cal., 134 F.3d 981 (9th Cir 1998), cert. denied sub nom. Calderon v. Taylor, 119 S.Ct. 274 (1998) The Ninth Circuit denied the state’s petition for a writ of mandamus, which challenged the district court’s procedure allowing a death-sentenced California inmate to delete the unexhausted claims in his mixed habeas petition, have the then-fully exhausted petition held in abeyance while he returned to state court to exhaust the deleted claims, and then return to federal court to re-amend the deleted claims back into the previously stayed petition. In denying the petition, the court pointed out that its decision in Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997), stated that a "’district court has discretion to stay a petition which it may validly consider on the merits,’" and that a petition amended to contain only exhausted claims is such a petition. 134 F.3d at 987 (quoting Greenawalt). The court did agree with the state, however, that the district court’s plan to allow petitioner to re-amend his presently exhausted petition to add newly exhausted claims would be subject to challenge as an abuse of the writ, but declined to consider that issue because, as the district court reasoned, "any ruling as to the legitimacy of a step not yet taken would be tantamount to an advisory opinion." 134 F.3d at 989.

Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998), The Fifth Circuit reaffirmed that district courts "clearly [have] authority to either abate or dismiss" a habeas petition when a prisoner returns to state court to exhaust claims. The court also agreed with petitioner that no "controlling precedent dictate[s] the dismissal of the federal action" under such circumstances.

Hood v. Helling, 141 F.3d 892, 896 (8th Cir. 1998), cert. denied 119 S.Ct. 556 (1998), Petitioner fairly presented his claim that he was denied due process by the state trial court’s failure to grant his motion for severance where the state court "referred to [petitioner]’s due process right to a fair trial in evaluating his appeal," and petitioner "made reference in his brief before [the state supreme] court to his "due process right to a fair trial."

Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998), Petitioner adequately exhausted state remedies concerning his double jeopardy claim where, although petitioner did not appeal his conviction, the state supreme court had already ruled that his prosecution did not offend the Double Jeopardy Clause, the United States Supreme Court denied certiorari from that decision, and further state court review was unavailable.

Frey v. Schuetzle, 151 F.3d 893, 897 (8th Cir. 1998), Petitioner fairly presented his claim that he did not knowingly and intelligently waive his right to testify where, on appeal from the denial of post-conviction relief, the state supreme court listed as one of five issues petitioner’s claim "that trial counsel impermissibly interfered with his right to testify," and petitioner specifically claimed in his brief to that court that this interference by counsel violated his constitutional right to testify.

Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999), The Fifth Circuit found that the "futility exception [to the exhaustion requirement] applies when, as here, the highest state court has recently decided the same legal question adversely to the petitioner." The "legal question" resolved adversely to petitioner’s position in this case was the claim that exercise of peremptory challenges on the basis of religion violates the Equal Protection Clause.

Cameron v. Lefevre, 887 F.Supp. 425, 428-29 (E.D.N.Y. 1995), Petitioner was not required to exhaust state remedies where delay in state's direct appeal process was chargeable to the state and unreasonable.

Simmons v. Blodgett, 910 F.Supp. 1519, 1523-24 (W.D.Wash. 1996), Because inmate's jury misconduct claim hinged on testimony of juror who was elderly, marginally incompetent and in poor health, the case was "exceptional" and exhaustion of state remedies was not required.

Calhoun v. Farley, 913 F.Supp. 1218, 1221 (N.D.Ind. 1995), Because the state courts had not ruled on petitioner's pro se petition for approximately two years, federal court could excuse the need for exhaustion; delay was so great that it outweighed the concerns of comity and federalism.

U.S. ex rel. Whitehead v. Page, 914 F.Supp. 1541, 1543 (N.D.Ill. 1995), Motion for appointment of counsel to prepare federal habeas petition denied due to failure to exhaust state remedies where petitioner's appeal from denial of state post conviction relief was still under consideration by state supreme court.

U.S. ex rel. Green v. Washington, 917 F.Supp. 1238, 1269 (N.D.Ill. 1996), Class of petitioners who sought federal habeas relief challenging delays in state direct appeal process averaging nearly two years were not required to exhaust state appellate remedies.

Puchner v. Kruzicki, 918 F.Supp. 1271, 1276 (E.D.Wis. 1996), Petitioner, a father serving remedial contempt sentence for failure to pay child support, exhausted state remedies where state's highest court was given fair opportunity to rule on substance of his claims and therefore, no state remedy was available.

Lee v. Bennett,927 F.Supp. 97, 100 (S.D.N.Y. 1996), aff’d, 104 F.3d 349 (2nd Cir. 1996) Petitioner satisfied exhaustion requirement where the "facts alleged in [his] appellate briefs should have called to mind fundamental due process principles, and as such, fully and fairly apprised the state court of the constitutional issue."

Lambright v. Lewis, 932 F.Supp. 1547, 1568 (D.Ariz. 1996), The court treated petitioner's unexhausted claims as "technically exhausted" to avoid extension of nine year delay that had already resulted from petitioner's efforts at exhaustion. The court cited § 104, which allows denial on the merits of unexhausted claims, and notes that Title I does not give the court power to grant relief on an unexhausted claim.

Sanabria v. Morton, 934 F.Supp. 138, 143 (D.N.J. 1996) Petitioner exhausted his due process claim regarding state court’s failure to give a lesser-included offense instruction because he had cited cases addressing when federal due process requires such an instruction.

Smith v. Cambra,1996 WL 310117 (N.D.Cal. June 3, 1996),Court dismissed § 2254 petition containing unexhausted claims without prejudice and warned pro se petitioner of one-year statute of limitations contained in AEDPA.

United States ex rel. Brown v. Washington, 1996 WL 312097 (N.D.Ill. June 7, 1996), The court applied the AEDPA to a §2254 petition without discussion, pointed out the two exceptions to the exhaustion requirement contained in §2254(b)(1)(B), and ordered further briefing on availability of relief for petitioner in state court.

Cooper v. Calderon, No. CV 92-427 H (S.D.Cal. June 17, 1996), The court determined that the AEDPA is applicable to cases pending at date of enactment, but refrained from exercising its authority to deny petitioner's mixed application on the merits, stating that staying the federal proceedings to allow petitioner to exhaust state remedies "is consistent with the policies expressed in the [AEDPA]."

Walker v. Ward, 934 F.Supp. 1286, 1294 (N.D.Okla. 1996), State court would have first opportunity to review petitioner’s claim, arising out of intervening state supreme court decision, that state court earlier applied wrong standard in determining petitioner’s competency.

Amaker v. Lacy, 941 F.Supp. 1340, 1352 (E.D.N.Y. 1996), aff’d, 133 F.3d 906 (2nd Cir. 1997) (unpublished), Petitioner did not fail to exhaust state remedy on IAC claim, so as to be precluded from raising it before federal court, by failing to present fact that videotaped statement of codefendant, which was to be used only against that codefendant in murder trial, contained one reference to defendant's nickname which should have been redacted; muffled reference was not essential fact which state should be required to review in order to determine ineffective assistance claim.

United States ex rel. Murdock v. Gilmore, 1996 WL 674151 at *1 (N.D. Ill. Nov. 19, 1996), After determining that the petition could be dismissed because petitioner had failed to exhaust his state remedies, the court proceeded to examine the merits of petitioner’s claims and to "summarily dismiss" the petition, noting that "Congress has also authorized district courts to deny habeas applications on the merits of unexhausted claims (Section 2254(b)(2))…"

Cephas v. Gavin, 1997 WL 21385 at *2-3 (E.D.N.Y. Jan. 13, 1997), Petitioner’s letter application for leave to appeal to the New York Court of Appeals, which was accompanied by his brief in the court below, was sufficient to incorporate all of the issues raised below even though the cover letter referred to only one of those issues. However, several of the claims presented in the federal petition were either not raised at all in state court, or were not presented as constitutional claims in the state courts. The petition was therefore dismissed as mixed.

United States ex rel. Walton v. Gilmore, 1997 WL 51703 at *5 (N.D.Ill. Feb. 4, 1997), The court dismissed the petition as premature because petitioner had not exhausted his state remedies. The court noted that the AEDPA gives it the authority to deny the unexhausted petition on the merits but declined to exercise this power because, "[a]t this stage, we cannot be confident that Walton’s habeas petition lacks merit."

Washington v. Superintendent, Otisville Corr. Facility, 1997 WL 178616 at *4 (S.D.N.Y. April 11, 1997), Petitioner fairly presented his claims where his brief in the state appellate court "not only referred to the Constitution generally, but relied on state cases employing constitutional analysis in like fact situations and asserted his claims in terms so particular as to call to mind specific rights protected by the Constitution."

Lyda v. Tah-Bone, 962 F.Supp. 1434, 1435 (D.Utah 1997), Indian Civil Rights Act required petitioner to exhaust remedies available through the Ute Tribal Court before bringing federal habeas petition seeking relief from that court’s judgment of confinement for contempt.

Gaylor v. Harrelson, 962 F.Supp. 1498 (N.D.Ga. 1997), The court found that the "AEDPA preserves the traditional exhaustion requirement…[and] leaves undisturbed the holding in Rose v. Lundy," but found that the Act "contains two significant changes[:]" (1) elimination of the "district court’s ability to infer a State’s waiver of the exhaustion requirement from the State’s failure to expressly invoke [it];" and (2) "discretion to deny a habeas petition on the merits, notwithstanding the petitioner's failure to exhaust the remedies available in State court. § 2254(b)(2)." 962 F.Supp. at 1499. The court next determined that, under § 2254(b)(2), if initial review of a mixed petition "arouses the slightest suspicion that the [unexhausted] claims have merit, dismissal without prejudice is appropriate to allow the State court an opportunity to consider the claims. If no such suspicion is aroused, the Court may proceed to perform the meticulous review necessary to determine if denial on the merits is appropriate." 962 F.Supp. at 1500.

United States ex rel. Kokoraleis v. Dir. of Illinois Dept. of Corrections, 963 F.Supp. 1473, 1482 (N.D.Ill. 1997), aff’d, 131 F.3d 692 (7th Cir. 1997), Petitioner did not fairly present federal claim relating to felony murder aggravating circumstance in state court even though he cited Zant v. Stephens, 462 U.S. 862 (1983), because that case "did not clearly address a federal constitutional issue."

United States ex rel. Gillespie v. Nelson, 1997 WL 201563 (N.D.Ill. April 17, 1997), Pursuant to 28 U.S.C. § 2254(b)(2), the district court denied petitioner’s unexhausted IAC claim on the merits despite the fact that this claim was still pending before the state appellate court following denial of state post-conviction relief.

Ramos v. Costello, 1997 WL 231129 at *5 (S.D.N.Y. May 7, 1997), Citing Loving v. O’Keefe, 1997 WL 128562 (S.D.N.Y. March 21, 1997), the district court denied this pre-Act petition on the merits under §2254(b)(2), stating that "Ramos may not have exhausted all of his claims in state court. However, it is appropriate to dismiss them on the merits."

United States ex rel. Cannon v. Page, 1997 WL 264310 at *1 (N.D.Ill. May 13, 1997), Following the procedure it set forth in Parisi v. Cooper, 1997 WL 241800 (N.D.Ill. May 8, 1997), the district court dismissed the petition, which contained claims still pending on appeal from denial of state post-conviction relief, with leave to move for reinstatement within 63 days after issuance of a decision by the Illinois Appellate Court.

Santos v. New York, 1997 WL 282269 at*1-2 (S.D.N.Y. May 28, 1997) aff’d, 159 F.3d 1348 (2nd Cir. 1998), Petitioner fairly presented his federal IAC claim by including in a point heading that "’[a]ppellant was deprived of his federal right to the effective and meaningful representation of counsel’ and cited federal cases in support of this argument." Also, "petitioner’s general citations to the Sixth and Fourteenth Amendment in point headings and in the text, while brief and unexplained," were sufficient to present his claims of denial of the rights to a jury trial and to due process.

Martin v. Jones, 968 F.Supp. 1058, 1063 (M.D.Tenn. 1997), Because petitioner had not yet exhausted two of his five claims, the court dismissed the petition without prejudice to allow for completion of state post-conviction proceedings, and expressly stated that petitioner may refile following exhaustion without seeking leave of the court of appeals.

Edkin v. Travis, 969 F.Supp. 139, 141 (W.D.N.Y. 1997), Petitioner’s "mere mention of the term Brady, in reference to Brady v. Maryland,…-- a pertinent federal case employing constitutional analysis -- was sufficient to alert the state court to the federal constitutional nature of his claim."

Story v. Kindt, 970 F.Supp. 435, 443 (W.D.Pa. 1997), Exhaustion was excused as to all of petitioner’s claims where his state court appeals of some of the issues presented in his federal petition continued unresolved in the state courts for nine years.

Garcia v. Keane, 973 F.Supp. 364, 369 (S.D.N.Y. 1997), In New York, "claims for ineffective assistance of appellate counsel are considered exhausted upon the filing and consideration of a petition for writ of error coram nobis" since "[o]rders of the Appellate Division denying a writ of error coram nobis are not appealable to the Court of Appeals."

Ely v. Matesanz, 983 F. Supp. 21, 44 (D. Mass. 1997), Petitioner exhausted state remedies and fairly presented his claim to the state courts by repeatedly calling to the state court’s attention during collateral review his belief that government had failed to produce plea agreement and that his conviction was obtained through the use of perjured testimony.

Barker v. Yukins, 993 F.Supp. 592, 596 (E.D.Mich. 1998), To satisfy the fair presentation requirement, "all that is required is that the federal constitutional issue be fairly identified and presented to the state court in such a way that the state court has an opportunity to be alerted to the existence of a federal constitutional question and have the opportunity to pass on the question."

Williams v. Vaughn, 3 F.Supp.2d 567 (E.D.Pa. 1998) The court held that under Habeas Corpus Rule 11 and 28 U.S.C. § 2242, petitioner’s amendments to his petition relate back to the date the original petition was filed because "both petitions [original and amended] allege constitutional defects surrounding the same ‘occurrence’ -- petitioner’s trial and penalty phases…" 3 F.Supp.2d 570. The court went on to conclude that the petition would have to be dismissed because it contained both exhausted and unexhausted claims. However, in light of potential statute of limitations problems, the court dismissed the petition "without prejudice to petitioner’s right to file a second amended petition after exhaustion," and made clear that the "filing of such a second amended petition would…relate back to the original filing date of the habeas corpus petition…" 3 F.Supp.2d 578. See also Morris v. Horn, 1998 WL 150956 at *4 (E.D.Pa. March 19, 1998) (employing similar procedure); Williams v. Vaughn, 1998 WL 238466 (E.D.Pa. May 8, 1998) (denying respondents’ motion for relief from judgment; court’s action in dismissing without prejudice not equivalent of holding claim or petition in abeyance; by dismissing petition without prejudice, court relinquished jurisdiction while protecting petitioner’s right to refile against possible statute of limitations if state court exhaustion petition were found to be not "properly filed."

Lakram v. Senkowski, 1998 WL 329652 at *2 (E.D.N.Y. June 15, 1998), Dismissing petitioner’s mixed petition, the court noted that, "[b]ecause Section 2254(b)(2) is part of chapter 153, this Court will not apply it retroactively and therefore holds that it does not have the discretion to deny [petitioner’s] mixed petition on the merits."

Kethley v. Berge, 14 F.Supp.2d 1077, 1078 (E.D.Wis. 1998), The court dismissed petitioner’s §2254 petition, which had been dormant in the federal district court for three years, for failure to exhaust all available state remedies. However, citing the possibility that petitioner would be time barred by the statute of limitations if he returned to federal court after exhaustion, the court allowed petitioner to "retain the benefit of the present case number and filing date when his file is reopened."

Guido v. Booker, 37 F.Supp.2d 1289, 1291-1292 (D.Kan. 1999), The court waived the usual requirement that prisoners challenging actions by the Federal Bureau of Prisons exhaust administrative remedies for the following reasons: the issues "are legal and do not depend on the resolution of factual matters through th development of an administrative record; the case is "‘sufficiently extraordinary’" in that the agency that would be responsible for conducting any administrative proceeding has "consistently maintained in litigation across the country that the policy [challenged by petitioner] is lawful"; "dismissal of this action to require petitioner to exhaust administrative remedies could result in his claim for release becoming moot"; and "the BOP has routinely denied the claims raised by petitioner when presented by other inmates on administrative appeal".

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