George Pappageorge v. George W. Sumner, Warden

concurring:

I concur in the result. At the same time, however, I believe that the exhaustion problem warrants more extensive discussion.

Although the habeas statute speaks of the exhaustion of “the remedies available in the courts of the State,” 28 U.S.C. § 2254 (b), the Supreme Court has normally spoken of the exhaustion requirement in terms of the exhaustion of “federal claims” or “claims of constitutional error.” See Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 1203 , 71 L.Ed.2d 379 (1982) (emphasis added). Thus, the majority appears correct when it asserts that the Supreme Court has never explicitly decided whether an allegation of different “operative facts” in federal court transforms a particular legal theo ry, e.g., ineffective assistance of counsel, into a different “claim of constitutional error.”

I do not think, however, that Rose v. Lundy supplies inferential support as strong as the majority’s Order suggests. Justice O’Connor’s concern that the District Court considered facts not raised before the state courts related to her conclusion that the District Court had actually considered two unexhausted claims that were separate from but related to the two exhausted claims.…