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August 1, 1983

RENE SANTANA, Petitioner
PETER FENTON, etc., et al., Respondents

The opinion of the court was delivered by: BIUNNO

 This is the second presentation of Santana's petition under § 2254 of Title 28. At the first presentation three claims were made: (1) a remark by the prosecutor impermissibly commenting on Santana's failure to testify; (2) the trial court's refusal to reopen the trial on a motion made after summations but before the jury instructions deprived Santana of an alleged "constitutional right to testify"; and (3) numerous instances of alleged prosecutorial misconduct denied Santana a fair trial.

 The disposition reached was that the comments in summation were found to amount to a not permissible invasion of Santana's Fifth Amendment rights, and a conditional writ was granted. The claim of a "constitutional right to testify" was found not to raise a federal constitutional issue and not to provide a ground for issuance of a writ. The third claim was not dealt with.

 On appeal, the Court of Appeals reversed without reaching the merits. It applied Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), decided while the appeal was pending, which requires dismissal of a § 2254 petition if it asserts any unexhausted claims, 28 USC § 2254(b).

 The Court of Appeals analysis was directed solely to the claim of a constitutional right to testify, and found it had not been exhausted. The other two grounds were not reviewed because failure to exhaust remedies on the one ground required that the entire petition be dismissed under Rose.

 The order granting the conditional writ was accordingly reversed with remand on instructions to dismiss the petition, leaving Santana the choice of returning to state court to exhaust his claims or of amending or resubmitting the petition to present only exhausted claims.

 Santana chose the course of amending his petition to present only the claim on which the conditional writ was granted.

 This choice presents the court with two questions, which have been argued. One is whether Santana had exhausted available state remedies on the sole claim remaining in light of the decision of this court in Herring v. Fenton, 531 F. Supp. 937 (D.N.J., 1981). The other is whether, if the state remedies were exhausted, the result reached before should be adhered to. This aspect arises because the first ruling was grounded on Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), without considering and applying Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and see the discussion on the point in U.S. v. Hasting, 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983).

 So far as exhaustion is concerned, Santana argues that the decision in Herring should not be followed, and that the exhaustion requirement is satisfied by showing that the federal claim has been "fairly presented" to the state courts, see Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). As the Rose decision makes clear, the doctrine goes back at least to Ex parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734 (1886), and was codified by Congress in 1948, see 455 U.S. at 515-516, and footnote 8 thereto.

 The Rose court also said:

"A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error". 455 U.S. at 518-519 (emphasis added).

 There is no need to repeat here the detailed analysis of Herring. It is sufficient to note that under New Jersey's Constitution, there are two avenues of review by the Supreme Court. One is by appeal of right grounded on federal constitutional issues (among others). The other is permissive, on leave only, by a petition for certification. As Herring pointed out, every federal claim that is cognizable under 28 USC § 2254 is, by definition, one on which there was an appeal of right to the Supreme Court.

 Herring also records that since 1953 the N.J. Rules of Court have put an appellant to no election in that regard, but have allowed the filing of both an appeal of right and a petition for certification.

 Researchers may be misled by the affirmance of Herring reported without opinion at 701 F.2d 157 (CA-3, 1983). The fact is that after this court's ruling, 531 F. Supp. 937 (D.N.J., 1981), Herring returned to the New Jersey courts for post-conviction relief, N.J. Court Rule R. 3:22, exhausted his remedies in that fashion, and filed a new petition here. The same result was reached on the merits, and it was ...

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