                                  ___________

                                  No. 95-2801
                                  ___________

Clarence Victor,                      *
                                      *
           Appellee,                  *
                                      *   Appeal from the United States
     v.                               *   District Court for the
                                      *   District of Nebraska.
Frank X. Hopkins,                     *
                                      *
           Appellant.                 *


                                  ___________

                    Submitted:    December 14, 1995

                         Filed:   July 19, 1996
                                  ___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE,* District Judge.
                               ___________

BOWMAN, Circuit Judge.


     Pursuant to 28 U.S.C. § 1292(b) (1994), the District Court has
certified the following question for our consideration:


     Can and should a federal district court in a federal habeas
     corpus action involving the death penalty hold the federal case
     in abeyance, retaining jurisdiction and maintaining the stay
     against execution, to allow the petitioner to exhaust his state
     remedies in a situation where it is unclear under state law
     that state procedures are available to the petitioner to raise
     his claims in state court?


We answer this question in the negative, holding that the proper course of
action for a district court in these circumstances is to




     *The HONORABLE CHARLES R. WOLLE, Chief Judge, United
     States District Court for the Southern District of Iowa,
     sitting by designation.
dismiss the petition for a writ of habeas corpus, put the petitioner to his
state remedies, and lift the federal stay of execution.


                                           I.


     The     evidence     presented   at        Victor's    trial       in   state   court
overwhelmingly proved that on December 26, 1987, Victor murdered 82-year-
old Alice Singleton in her home in Omaha, Nebraska, by slashing her throat
several times.     Victor had been Singleton's gardener.              A jury found Victor
guilty of first degree murder and use of a weapon to commit a felony.                      A
three-judge sentencing panel imposed the death penalty.                 On direct appeal,
the Nebraska Supreme Court affirmed Victor's conviction and the imposition
of the death penalty.     State v. Victor, 457 N.W.2d 431 (Neb. 1990), cert.
denied, 498 U.S. 1127 (1991).      Victor's effort at obtaining relief through
state post-conviction proceedings was similarly unsuccessful.                    State v.
Victor, 494 N.W.2d 565 (Neb. 1993), aff'd, 511 U.S. 1 (1994).


     On September 2, 1994, Victor, representing himself, filed a petition
for a writ of habeas corpus, a motion for appointment of counsel, a motion
for a stay of execution, and a motion to proceed in forma pauperis.                      The
District Court, having jurisdiction to "entertain an application for a writ
of habeas corpus" pursuant to 28 U.S.C. § 2254 (1994), granted Victor's
motions for appointment of counsel and for a stay of execution and granted
in part his motion to proceed in forma pauperis.                      Victor's appointed
counsel    filed   an   amended   petition      for   a   writ   of    habeas   corpus   on
January 17, 1995.        In that petition, Victor makes numerous claims for
relief.    Later, Victor realized that some of the claims in his amended
petition never have been presented to the Nebraska state courts either on
direct appeal or in post-conviction proceedings.            Victor then requested the
District Court to hold his petition in abeyance and maintain the stay of
execution while he attempted to




                                        -2-
raise these claims in a second state petition for post-conviction relief.
The District Court granted Victor's motion over the state's objection.


       In its order granting Victor's motion to hold his petition in
abeyance and maintain the stay of execution, the District Court certified
that the question set out above is "a controlling question of law as to
which there is substantial ground for difference of opinion" and "that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation."      Victor v. Hopkins, Mem. & Order at 20, No.
4:CV94-3263 (D. Neb. June 15, 1995) (quoting 28 U.S.C. § 1292(b) (1994)).
The    state   then   petitioned   this   Court   for   permission   to   appeal   the
interlocutory order of the District Court.          We granted the petition, and
we thus have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(b).


                                          II.


       The state argues that the District Court abused its discretion when
it granted Victor's motion because both this Court and the Supreme Court
have held that federal courts must dismiss habeas petitions that include
both exhausted and unexhausted claims unless either the petitioner chooses
to proceed on his exhausted claims only or the state waives the requirement
of    exhaustion.     In this case, the state argues that it has waived
exhaustion and, to a certain extent, urges that the case proceed to a
decision on the merits.1       Victor argues that, under other precedents of
this Court, the District Court has the discretion to retain jurisdiction
over a habeas petition pending a petitioner's exhaustion of state-court
remedies and that the state's qualified waiver of the exhaustion




       1
     As discussed below, the state does not waive its defense that
Victor's new claims are procedurally defaulted because they were
not raised in his first state-court petition for post-conviction
relief.

                                          -3-
requirement is insufficient to allow the District Court to reach the merits
of his petition at this time.


                                           A.


     As an initial matter, we must consider whether the state has waived
the exhaustion requirement.           If the state's waiver was effective, the
question certified by the District Court would be moot.               Exhaustion would
not be necessary, and the District Court could choose to continue its
proceedings on Victor's habeas petition rather than holding it in abeyance.
We conclude, however, that the state's waiver of the exhaustion requirement
was not effective.


     The    parties    agree    that    Victor's     petition   includes    some      new,
unexhausted claims.    In certain circumstances, a federal district court can
consider the merits of an unexhausted claim when the exhaustion requirement
has been waived by the state.           See Hampton v. Miller, 927 F.2d 429, 431
(8th Cir. 1991).       The decision to accept a waiver of the exhaustion
requirement is committed to the discretion of the district court.               Id.    We
have held that when the availability of a state procedure is in doubt,
federal    courts   "should    be    hesitant   to   accept   State   waivers   of     the
exhaustion defense."    Duvall v. Purkett, 15 F.3d 745, 747 (8th Cir.), cert.
denied, 114 S. Ct. 2753 (1994).


     In its brief, the state argues that it has waived the exhaustion
requirement.   The District Court rejected that argument, holding that the
state did not waive the exhaustion requirement because the state retained
the right to argue that Victor's new claims for relief were procedurally
defaulted in state court.           Victor v. Hopkins, Mem. & Order at 7 n.5, 11
n.6, No. 4:CV94-3263 (D. Neb. June 15, 1995).           We agree with the District
Court's analysis of this issue.         On the one hand the state argues that the
availability of a state-court procedure to address Victor's new




                                          -4-
claims is uncertain; on the other hand, the state argues that Victor's new
claims have been procedurally defaulted in state court because he failed
to raise them in his first petition for post-conviction review.              It seems
to us that the questions of whether Victor has an available state-court
procedure to raise his new claims and whether Victor has procedurally
defaulted those claims are one and the same.         The state's brief reveals the
flaw in the state's argument:


     In order to be "exhausted" a claim must be "fairly presented"
     to [the state courts]. . . . That Victor has not done. . .
     .

     Default . . . is the antithesis of "fair presentment". [sic]
     It is the price a litigant pays for failure to "fairly present"
     a claim within the procedural structures afforded by the state
     courts.


Hopkins's Brief at 15.     The state is willing to forego the requirement that
Victor fairly present his new claims to the state courts but wants to
penalize Victor for failing to fairly present his claims.               The state's
purported   waiver,   as   the   District    Court   properly   held,   is    not   an
unqualified waiver of the exhaustion requirement, and the District Court
did not err when it refused to accept the state's waiver of the exhaustion
requirement.


     Having held that the state has not effectively waived the exhaustion
requirement in this case, we now consider the proper procedure to be
employed by a district court when faced with a habeas petition that
includes both exhausted and unexhausted claims.


                                       B.


     The District Court has asked us whether it has the authority to hold
in abeyance this petition for the writ of habeas corpus, thus retaining
jurisdiction over the case, while Victor attempts to




                                       -5-
exhaust his remedies in state court.             This is a question of law that we
review de novo.


     The statute governing habeas procedures provides as follows:


     An application for a writ of habeas corpus in behalf of a
     person in custody pursuant to the judgment of a State court
     shall not be granted unless it appears that the applicant has
     exhausted the remedies available in the courts of the State, or
     that there is either an absence of available State corrective
     process or the existence of circumstances rendering such
     process ineffective to protect the rights of the prisoner.


28 U.S.C. § 2254(b) (1994).              The exhaustion requirement "is grounded
primarily upon the respect which federal courts have for the state judicial
processes     and   upon    the    administrative     necessities   of   the   federal
judiciary."    Wade v. Mayo, 334 U.S. 672, 679 (1948).          A federal court may
"properly intervene" only when "state remedies have been exhausted without
the federal claim having been vindicated" because state and federal courts
share the same responsibility to protect the constitutional rights of
criminal defendants.       Id.    We cannot assume that state courts fail to carry
out that responsibility.           Id.    It is the duty of this Court "to give
preference to such principles and methods of procedure as shall seem to
conciliate the distinct and independent tribunals of the states and of the
Union, so that they may co-operate as harmonious members of a judicial
system co-extensive with the United States, and submitting to the paramount
authority of the same constitution."             Ex parte Royall, 117 U.S. 241, 252
(1886) (quoting Taylor v. Carryl, 61 U.S. (20 How.) 583, 595 (1858)).
"[O]nly `in rare cases where exceptional circumstances of peculiar urgency
are shown to exist'" will a federal court entertain an unexhausted claim
and thereby "interfere with the administration of justice in the state
courts."    Ex parte Hawk, 321 U.S. 114, 117 (1944) (quoting United States
ex rel. Kennedy v. Tyler, 269 U.S. 13, 17 (1925)).              Such circumstances
exist when, for




                                           -6-
example, state remedies are inadequate or fail to "afford a full and fair
adjudication of the federal contentions raised."     Id. at 118.


       In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court applied
these principles to a case in which the habeas petition included both
exhausted claims and claims that had not been presented to a state court.
Justice O'Connor's opinion states at the outset that "[b]ecause a rule
requiring exhaustion of all claims furthers the purposes underlying the
habeas statute, we hold that a district court must dismiss such `mixed
petitions.'"   Id. at 510.   The petitioner then either may return to state
court to exhaust his claims or file an amended petition in federal court
including only exhausted claims.       Id.   The Court explicitly adopted a
"total exhaustion" rule, rejecting the precedents of this Court, such as
Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973), that had permitted
district courts to review exhausted claims rather than dismissing mixed
petitions.   Rose, 455 U.S. at 522, 513 n.5.   On the other hand, the Court
approved of our precedents, such as Triplett v. Wyrick, 549 F.2d 57, 59
(8th Cir. 1977), that required district courts to dismiss those mixed
petitions that included both exhausted and unexhausted claims.     Rose, 455
U.S. at 519.   The Court characterized its holding as "a simple and clear
instruction to potential litigants:    before you bring any claims to federal
court, be sure that you first have taken each one to state court."    Id. at
520.


       Despite the apparent clarity of the holding of Rose v. Lundy, this
Court has not always required the dismissal of petitions containing
unexhausted claims.2   As the District Court noted in its


         2
        We have explicitly recognized several exceptions to the
general rule stated in Rose v. Lundy that we believe are consistent
with the Supreme Court's opinion in that case. For example, we
have held that a district court may consider mixed petitions when
the unexhausted claims do not state claims for relief based on
federal constitutional rights and thus are not cognizable under 28
U.S.C. § 2254. See Martin v. Solem, 801 F.2d 324, 331 (8th Cir.
1986).    We have also permitted a district court to dismiss a
petition with prejudice, rather than dismissing without prejudice
to later refiling, when the court concluded that the claims made in
the petition were frivolous. See Veneri v. Missouri, 734 F.2d 391,

                                      -7-
memorandum and order, and as the state acknowledges on appeal, we have,
"over time, both ordered abeyance and affirmed denial of a requested
abeyance in cases where `mixed' petitions were before the district courts."
Hopkins's Brief at 11.     The certified question we here answer enables us
to untangle this thicket.


     Victor has directed our attention to three cases in which we have
stated that district courts have discretionary authority to hold habeas
petitions in abeyance and maintain stays of execution pending exhaustion
of state remedies.   In Collins v. Lockhart, we relied on Rose v. Lundy to
reverse the district court's denial of a habeas petition that contained
both exhausted and unexhausted claims.      707 F.2d 341, 344 (8th Cir. 1983).
In conclusory fashion, however, we stated that our remand to the district
court was "with instructions to retain jurisdiction and hold the case in
abeyance under the existing stay of execution pending Collins' prompt
presentation   to    the   Arkansas   Supreme   Court   of   all   his   federal
constitutional claims."    Id.   In Collins, we recognized that after Rose v.
Lundy it clearly was not proper to deny a habeas petition merely because
of the presence of unexhausted claims, but we fashioned a course of action
without reference to the dismissal rule explicitly announced in Rose v.
Lundy.   Our opinion does not contain any analysis of the issue nor does it
indicate whether the




393 (8th Cir. 1984) (applying 28 U.S.C. § 1915(d)).           Other
exceptions to the Rose v. Lundy rule include cases in which
exhaustion would be futile or cases in which the state has waived
the exhaustion requirement. See Duvall v. Purkett, 15 F.3d 745,
746 (8th Cir.), cert. denied, 114 S. Ct. 2753 (1994). None of
these exceptions, of course, is in play in this case. (We already
have held that the state has not waived the exhaustion requirement.
See supra part II.A.)

                                      -8-
abeyance issue was briefed by the parties or a subject of controversy
between the parties.3


     After         Collins,   we   made    at   least   three   additional    conclusory
statements, either in dicta or without independent analysis of the issue,
regarding the authority of a court to hold a mixed petition in abeyance.
Collins was cited as the sole authority for the proposition that a federal
court may retain jurisdiction and hold a petition in abeyance in Williams
v. Wyrick, 763 F.2d 363, 366 (8th Cir. 1985).              The question before us in
Williams was whether a district court must retain jurisdiction pending
exhaustion.         We held that the district court could dismiss a mixed
petition; thus we did not need to decide whether the court, in the first
instance, even had the discretion to retain jurisdiction.                    Despite our
statement that courts have such discretion, id., Williams does not contain
any independent analysis of the issue and, in any event, reaches a result
consistent with Rose v. Lundy:              the mixed petition was dismissed.         In
Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990), we again cited Collins
for the proposition that a federal court can hold a mixed petition in
abeyance pending exhaustion.              Id. at 377.   In Simmons, however, we were
considering whether counsel's failure to file a state post-conviction-
relief petition constitutes sufficient cause for a prisoner's failure to
raise a claim in state court.             We held that it did constitute sufficient
cause.       Citing Collins, we rejected the district court's concern that the
federal habeas petition would have been dismissed and the stay of execution
lifted had counsel filed a petition for post-conviction relief in state
court.       Id.   The issue of the district court's authority to hold a petition
in abeyance pending exhaustion




         3
      See also Simpson v. Camper, 927 F.2d 392, 393-94 (8th Cir.
1991) (holding, without citation to authority, that court of
appeals could hold habeas case in abeyance pending exhaustion when
it was unclear whether some claims are unexhausted), vacated, 974
F.2d 1030 (8th Cir. 1992). Both parties cited Simpson v. Camper in
their briefs.    We discourage citation of any vacated case as
authority.

                                             -9-
thus was, at best, tangential to the issues before the court in Simmons,
and, as a result, the Simmons opinion contains no independent analysis of
a court's authority to take such actions.


     Through our independent research, we have discovered one additional
case in which we noted the possibility of retaining jurisdiction while a
prisoner pursued unexhausted claims in state court.   In Sloan v. Delo, 54
F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 116 S. Ct. 728 (1996), we
stated that "[i]f a federal court is unsure whether a claim would be
rejected by the state courts, the habeas proceeding should be dismissed
without prejudice or stayed while the claim is fairly presented to them."
In Sloan, however, the issue of the proper procedure to be followed in such
cases was not decided because we held that any further state proceedings
would be futile and thus proceeded to consider the petitioner's claims
without requiring the petitioner to attempt to exhaust his state court
remedies.


     In contradistinction to Sloan and the cases cited by Victor, we have
repeatedly adhered to the command of Rose v. Lundy in other cases.    See,
e.g., Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996); Mellott v.
Purkett, 63 F.3d 781, 784-85 (8th Cir. 1995); Ashker v. Leapley, 5 F.3d
1178, 1179-80 (8th Cir. 1993); Gray v. Hopkins, 986 F.2d 1236, 1237 (8th
Cir.) (per curiam), cert. denied, 114 S. Ct. 112 (1993); Shook v. Clarke,
894 F.2d 1496, 1497 (8th Cir. 1990) (modifying order of dismissal so that
dismissal would be without prejudice); Nottlemann v. Welding, 861 F.2d
1087, 1088-89 (8th Cir. 1988) (per curiam); Irwin v. Minnesota, 829 F.2d
690, 691 (8th Cir. 1987) (per curiam); Snethen v. Nix, 736 F.2d 1241, 1244,
1246 (8th Cir. 1984).     These eight cases, however, have not clearly
presented the precise issue we here decide.       In Williams v. Groose,
Mellott, Gray, Shook, Nottlemann, and Irwin, we were called upon to review
decisions in which the district courts had dismissed mixed habeas petitions
or required the petitioners to forego their unexhausted claims.   In other
words, we only needed to decide




                                   -10-
whether compliance with Rose v. Lundy was permissible -- an easy question,
indeed.   In Ashker and Snethen, we reversed the district court's grant of
the writ and remanded with instructions to dismiss the habeas petition
without prejudice because it included both exhausted and unexhausted
claims.   5 F.3d at 1178-79; 736 F.2d at 1246.   Our opinions do not indicate
whether any party argued that the case should have been remanded to allow
the district court to consider whether to dismiss the petition or hold it
in abeyance pending exhaustion.      In this case, however, we are asked
explicitly to decide whether Rose v. Lundy leaves open the possibility of
a district court's retaining jurisdiction and holding a habeas case in
abeyance pending exhaustion rather than requiring dismissal.    As far as we
can see, this Court never squarely has been presented with the precise
issue that now is before us in this case.


     We conclude that any suggestion in our prior cases that a district
court has broad discretion to hold in abeyance a habeas petition including
both exhausted and unexhausted claims pending exhaustion of state remedies
is contrary to the Supreme Court's explicit directions in Rose v. Lundy.
Except for cases of the sort noted earlier, see supra note 2, a mixed
petition must be dismissed or the petitioner must elect to proceed on only
the exhausted claims.   The District Court in this case, after considering
our prior cases, noted that Collins, Simmons, and Williams failed to
"articulate standards by which" the court could determine "whether holding
this case in abeyance and maintaining the existing stay of execution is
appropriate."   Victor v. Hopkins, Mem. & Order at 19.   We agree.   Moreover,
we do not believe that Sloan and the cases cited by the District Court can
be squared with Rose v. Lundy.   The correct view is represented by our line
of cases, cited earlier in this opinion, in which we have given recognition
to the clear teaching of Rose v. Lundy regarding the treatment of mixed
petitions.   Accordingly, we hold that the District Court has no authority
to hold Victor's mixed petition in abeyance or to




                                    -11-
maintain the stay of execution.       The choices stated in Rose v. Lundy are
the only options available to a habeas petitioner.


     Our decision is bolstered by the Supreme Court's post-Rose v. Lundy
practice.      The Court twice has granted certiorari in cases involving mixed
petitions and summarily disposed of them.        In Duckworth v. Cowell, the
Court remanded the case to the Seventh Circuit and directed that court to
instruct the district court to dismiss the petition.      455 U.S. 996 (1982)
(mem.) (citing Rose v. Lundy, 455 U.S. 509 (1982)).     In Bergman v. Burton,
the Court vacated the Sixth Circuit's decision and remanded the case for
further consideration in light of Rose v. Lundy.         456 U.S. 953 (1982)
      4
(mem.).       The Court has not wavered from the rule it announced in Rose v.
Lundy, consistently using mandatory language when describing that rule.
See Castille v. Peoples, 489 U.S. 346, 349 (1989) ("Respondent's habeas
petition should have been dismissed if state remedies had not been
exhausted as to any of the federal claims."); Teague v. Lane, 489 U.S. 288,
325 (1989) (Stevens, J., concurring) ("In Rose v. Lundy, 455 U.S. 509
(1982), the Court announced that a habeas petition containing exhausted and
unexhausted claims must be dismissed."); Engle v. Isaac, 456 U.S. 107, 124
n. 25 (1982) ("If [an unexhausted] claim were present, Rose v. Lundy, 455
U.S. 509 (1982), would mandate dismissal of the entire petition."); see
also Richards v. Solem, 693 F.2d 760, 763




          4
       Justice Stevens dissented, arguing that dismissal of the
petition, the result he believed would be required by the Court's
order, would cause unwarranted delay.          He noted that the
unexhausted claim was not addressed by the Sixth Circuit and was
not one of the issues raised in the petition for certiorari. Thus
the petitioner could refile his petition without the unexhausted
claim and the litigation would substantively be repeated right up
to the refiling of the very same certiorari petition that was
before the Court that day. Bergman v. Burton, 456 U.S. 953, 953-55
(1982) (Stevens, J., dissenting). Justice Stevens also dissented
from the Court's decision in Rose v. Lundy, 455 U.S. at 538-50, but
he nonetheless recognized what the rule in that case required:
dismissal of habeas petitions that include exhausted and
unexhausted claims.

                                      -12-
        Cir               Lundy                                                 a
                         ismiss a `mixed' petition."),                 , 461 U.S.
                Romano v. Wyrick                    n.3 (8th Cir. 1982) ("
adopted                                                                         s



        In the present case, Victor argues that the state may execute hi
prior                               state-court remedies.       The District Court



        the state offers me no assurance that it will not s
        Nebraska                a death warrant if I lift the existing
             of execution. Thus, if I lift the stay . . . and th
        state ecures a death warrant . . . I would undoubtedly b
        face with another motion for a stay of execution, which
        would be required to grant.


                      , Mem. & Order at 19.    Nothing in the record, however
ind            that Nebraska state courts are without authority to grant (o
would                                litigates his claims in state court.       To
                         ka statutes place authority to suspend the execution
      a death sentence in the
Otey              , 485 N.W.2d 153, 164 (Neb. 1992) (citing Neb. Rev. Stat
§§                                                                              s
               while federal constitutional claims are
but       have no reason to think that the Nebraska Supreme Court woul
countenance the execution of a prisoner in such circumstances any more tha
we        d.                          , 763 F.2d at 366 (leaving question o
stay pending exhaustion to state courts because
set                                           stays existed).    We certainly may
       assum                                                                    r
         he is pursuing his state remedies.                         , 334 U.S. a
679.




                                      -13-
                                  III.


     For the reasons stated, the judgment of the District Court is
reversed, and the case is remanded with directions to dismiss Victor's
petition for a writ of habeas corpus and to lift the stay of execution.


     A true copy.


           Attest:


                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                 -14-
