When Does the State "Expressly Waive" an Exhaustion Defense to a Brady Claim?

Today, D'Ambrosio v. Bagley, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit split over an interesting question in a capital habeas case: Where a habeas petitioner makes a Brady claim that the government suppressed or withheld mitigating evidence, when does the government "expressly waive" its defense that the petitioner failed to exhaust the Brady claim in state court? In this case, a divided panel held that the government's conspicuous failure to raise such a claim could constitute an "express" waiver, even though the waiver was never made explicit. On this basis, the court upheld the district court's grant of death-row inmate Joe D'Ambrosio's habeas petition. Judge Rogers wrote the opinion of the court, joined by Judge Gibbons. Chief Judge Boggs dissented in part.

Here is how Judge Rogers summarized the case in his majority opinion:

Joe D'Ambrosio was convicted of murdering Anthony Klann in 1988. After D'Ambrosio discovered evidence that the prosecution had withheld during his trial, he amended his then-pending habeas petition to add a Brady claim. The district court granted the writ. On appeal, the warden argues, for the first time, that D'Ambrosio failed to exhaust his Brady claim and should be required to return to state court to relitigate the claim there. Although D'Ambrosio's Brady claim was not presented to a state court, we do not dismiss his petition because the warden expressly waived the exhaustion requirement.
While the waiver was not explicit by the state, Rogers noted, it was unambiguous and unequivocal.
The warden expressly waived the exhaustion requirement because her counsel's conduct during the district court proceedings manifested a clear and unambiguous intent to waive the requirement. In response to D'Ambrosio's motion to amend his habeas petition in order to add the Brady claim, the warden stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend. On October 25, 2002, the warden filed a motion to expand the record to include evidence that the warden argued undermined D'Ambrosio's Brady claim. On November 25, 2002, the district court granted both motions. Importantly, with respect to D'Ambrosio's motion to amend his habeas petition, the district court stated that its understanding was that the warden would not argue that the Brady claim was unexhausted . . . .

This is an extraordinary case in which the district court stated that it understood exhaustion to be a non-issue and that the warden would not later assert it, the warden failed to correct what the district court clearly viewed as the warden's position during the almost four years of litigation before that court, and the warden went on to state to the district court that D'Ambrosio's claims would be untimely in the state courts (thereby confirming the district court's understanding). We are aware of no binding authority that says that such conduct by the State is not an express waiver of the exhaustion requirement.

In short, Rogers held, the state's words and actions made clear that it waived any exhaustion defense against D'Ambrosio's Brady claim. Chief Judge Boggs dissented on this point, arguing simply that there cannot be an "express" waiver of an argument that was never verbally expressed.

Another interesting aspect of D'Ambrosio is the non-ideological split it produced. As I've been noting in a series of posts, the sixth Circuit appears to be quite ideologically divided on habeas matters, particularly in death penalty cases. Particularly in divided cases, "liberal" judges vote to grant habeas petitions and "conservative" judges vote to deny. In this case, however, all three judges on the panel -- Boggs, Gibbons, and Rogers -- would generally be considered "conservative, and two of the three voted to affirm the district court's grant of habeas relief.