455 U.S. 509 (1982)
Noah Lundy was convicted in a Tennessee state court after a jury trial on charges of rape and crime against nature.1
He received consecutive sentences of 120 years on the rape charge and 5 to 15 years on the crime against nature charge.2 The Tennessee Court of Criminal Appeals affirmed the convictions. The Tennessee Supreme Court denied review.3 Lundy then filed an unsuccessful petition for postconviction relief in the Knox County Criminal Court.4
Lundy subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Tennessee under 28 U.S.C. § 2254.5 His petition alleged four grounds for relief. The first claimed that he had been denied the right to confrontation because the trial court limited defense counsel's questioning of the victim. The second claimed that he had been denied the right to a fair trial because the prosecuting attorney stated that Lundy had a violent character. The third claimed that he had been denied the right to a fair trial because the prosecutor remarked in closing argument that the State's evidence was uncontradicted. The fourth claimed that the trial judge improperly instructed the jury that every witness is presumed to swear the truth.6
After reviewing the state-court records, the District Court concluded that only the first two claims had been presented to the Tennessee courts.7 The court stated that it could not consider the third and fourth claims in the constitutional framework. It noted that in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally.8 The District Court reviewed the state trial transcript and identified 10 instances of prosecutorial misconduct, only 5 of which Lundy had raised before the state courts.9 The court granted the writ subject to the state's right to retry him within 90 days.10
The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment in an unreported order. It concluded that Lundy's constitutional rights had been seriously impaired by the improper limitation of his counsel's cross-examination of the prosecutrix and by the prosecutorial misconduct.11 The Sixth Circuit specifically rejected the state's argument that the petition should have been dismissed because it included both exhausted and unexhausted claims.12 The Supreme Court granted certiorari.13
Whether the exhaustion rule in 28 U.S.C. §§ 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts?14
The exhaustion requirement of 28 U.S.C. § 2254(b) and (c) obliges a federal district court to dismiss a habeas corpus petition containing both exhausted and unexhausted claims.15 A total exhaustion rule promotes comity by giving state courts the first opportunity to address all federal constitutional claims.16 It also produces a complete factual record for federal review.17
Yes. Lundy presented a habeas petition containing four claims to the District Court, yet only the first two had been exhausted in Tennessee courts.18 The District Court nevertheless proceeded to evaluate the unexhausted claims collaterally when assessing the overall trial atmosphere and granted relief on that basis.19 The Court of Appeals upheld this disposition without requiring exhaustion of all claims.20
Because the unexhausted claims were intertwined with the exhausted ones, the District Court explicitly relied on the unexhausted claims in its analysis.21 The total exhaustion rule therefore requires dismissal of the entire petition so that state courts may first address every federal constitutional claim.22
The district court must dismiss the mixed petition.23
Related opinions on this issue
Justice Blackmun concurred in the judgment but sharply criticized the total exhaustion rule.24 He observed that the rule can be read into the statute only by sheer force and that it operates as a trap for the uneducated and indigent pro se prisoner-applicant.25 The rule also tends to increase rather than alleviate case load burdens on both state and federal courts.26
He would have permitted district courts to review exhausted claims while holding unexhausted claims in abeyance.27 This approach better serves comity by avoiding unnecessary delay and by not forcing state courts to waste resources on patently frivolous claims.28 It also preserves the swift remedy that habeas corpus is intended to provide without sacrificing the interests underlying the exhaustion doctrine.29
Joined by Justice Marshall
Justice Brennan joined the Court's holding that mixed petitions must be dismissed in their entirety.30 He dissented from the plurality's suggestion in Part III-C that a prisoner who deletes unexhausted claims to proceed on exhausted ones risks later dismissal of the unexhausted claims as an abuse of the writ under Rule 9(b).31
He maintained that Rule 9(b) incorporates the Sanders standard, which requires a finding that the prisoner deliberately withheld claims for the purpose of delay before successive petitions may be dismissed.32 That standard is not met when a prisoner is forced to abandon unexhausted claims by the total exhaustion rule itself. The plurality's interpretation would permit dismissal in a much broader class of cases than Sanders permits.33
Justice White agreed with Justice Brennan that a mixed petition should be dismissed only as to the unexhausted claims.34 He would allow the district court to rule on the exhausted claims unless they are intertwined with the unexhausted ones or unless the habeas petitioner prefers to have the entire petition dismissed.35
He would not treat a later petition presenting the previously unexhausted claims as an abuse of the writ.36 This measured approach avoids the unnecessary delay that would result from forcing every prisoner to return to state court even when the exhausted claims are ripe for federal adjudication.37
Justice Stevens dissented from the adoption of a total exhaustion rule.38 He argued that it constitutes unnecessary lawmaking that will merely delay the final disposition of cases without advancing comity.39 He maintained that district judges should retain discretion to consider exhausted claims on the merits even when unexhausted claims are present in the petition.40
This discretion is particularly important where the exhausted claims demonstrate fundamental unfairness. The inflexible rule demeans the writ by imposing needless procedural hurdles on prisoners whose liberty is at stake and by treating all constitutional claims as fungible regardless of their gravity.41