42 USC § 1983. Petitioner chose neither route, but instead sought discretionary review by petition for writ of certiorari to the Supreme Court.
While the question did not relate directly to the matter of exhaustion (because both neglected remedies were federal remedies, not state remedies), the court's awareness of the difference between an appeal of right and a discretionary review, when both are available state remedies, as noted in Herring, has significance here. The Supreme Court, in the text and accompanying footnote 5, also notes the difference. See, also, Wainwright v. Torna, 455 U.S. 586, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982), and Hicks v. Miranda, 422 U.S. 332, at 343-345, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975).
Because Santana failed to exhaust available state remedies as of the time his petition was filed in 1979, he has not satisfied the requirements to that end and the petition must be dismissed.
The second branch noted above is presented because Santana argues that the ruling made August 12, 1981 is the "law of the case", and he has moved for judgment on the pleadings under F.R.Civ.P.12(c).
If the court were satisfied that the sole claim advanced was an "exhausted" claim, it does not follow that the court would be obliged to apply its first ruling as the "law of the case" and reorder issuance of a conditional writ.
For one thing, the mandate directing dismissal of the entire petition because it contained at least one unexhausted claim (the one analyzed by the Court of Appeals) wipes out the earlier ruling entirely.
For another, both this court and the Court of Appeals referred to the present claim by reference only to Griffin, supra, and neither referred to Chapman.
The recent decision in U.S. v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) indicates that the initial review was not conducted in the manner which current views of the highest court intend, as a matter of law.
The accused passage in the summation made no direct mention of Santana, and there is less ground for considering it to be constitutional error at all than the comments in Hasting. This was the view of Justice Stevens in his concurring opinion, even though the comment there directly called attention to what "the defendants did not do" on their cross-examination and with the evidence they did offer even though none of them took the stand himself. He regarded the comments as directed to the weaknesses of the defendants' case, not an improper comment on failure to testify, and a question capable of decision without a Chapman review of the whole record.
The majority recognized that "Justice Stevens may well be correct that the prosecutor's argument was permissible comment." It proceeded to make a Chapman review of the entire record itself, because "the question on which review was granted assumed that there was error." 76 L. Ed. 2d at 104, footnote 4.
Consequently, if the remaining ground had been exhausted, nothing about the first ruling would preclude consideration of the question whether the comment here was permissible comment and not constitutional error at all, even without a Chapman review.
Second, while U.S. v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) is a direct review of a conviction after trial in a federal court, rather than a habeas review of a state court proceeding under § 2254, the opinion makes it eminently clear that the "harmless error" test must be made on review of the whole record, under Chapman, and it undertook that review itself.
Thus, Hasting establishes that the same harmless error test of Chapman must be applied in both a review on direct appeal and on a collateral attack under § 2254 in both federal and state courts.
So far as direct review on appeal in federal courts is concerned, Hasting makes clear that the Courts of Appeal may not set a stricter standard than Chapman calls for as by invoking their supervisory powers over the district courts. And, while nothing in Chapman or in Hasting bars a state court from applying a stricter standard than Chapman as a matter of state law, the federal courts may not do so on a collateral attack under § 2254.
It is also of note that the Supreme Court in Hasting undertook a review of the whole record itself and tested it against Chapman. This implies that the harmless error test is a matter of law, or a mixed question of fact and law, allowing the upper court to arrive at its independent decision.
This court's analysis of the challenged comment in the text accompanying footnote 7 of the first opinion has a distinct flavor of a prophylactic perspective characteristic of an exercise of "supervisory power" which, as noted, does not exist in the district courts on a § 2254 petition.
Consequently, if it were determined that Santana's claim is one for which he had exhausted all available state remedies at the time his petition was filed in 1979, it would be necessary to decide whether the comment were constitutional error at all, and if it were, whether it was harmless error without consideration of prophylactic aspects.
Since the first issue in respect to exhaustion is decided against petitioner, the court does not proceed to deal directly with the merits of the claim beyond observing that the first ruling is not controlling. Courts cannot adhere to past rulings for the sake of adherence alone, and intervening decisions of the higher courts must be taken into account.
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