## Facts

- Waldo E. Granberry, an Illinois state prisoner, filed a federal habeas corpus petition under 28 U.S.C. § 2254 in the Southern District of Illinois.
- A magistrate ordered the State to respond; the State moved to dismiss under Rule 12(b)(6) for failure to state a claim, without asserting nonexhaustion.
- The district court adopted the magistrate’s recommendation and dismissed the petition on the merits.
- On appeal to the Seventh Circuit, the State for the first time argued Granberry had not exhausted available state remedies.
- Granberry contended the State waived any nonexhaustion defense by not raising it in the district court.
- The Seventh Circuit rejected waiver, vacated the merits dismissal, and remanded with instructions to dismiss without prejudice for nonexhaustion.
- The Supreme Court granted certiorari to determine the proper appellate approach when nonexhaustion is first raised on appeal.

## Issues

1. Whether a court of appeals must order dismissal for failure to exhaust state remedies when the State raises nonexhaustion for the first time on appeal in a § 2254 case.
2. Whether the State’s failure to assert nonexhaustion in the district court constitutes an absolute waiver requiring the appellate court to reach the merits.
3. Whether the appellate court instead has discretion to choose between addressing the merits and requiring exhaustion based on comity, federalism, and the interests of justice.

## Decision

- The Supreme Court vacated the Seventh Circuit’s judgment and remanded.
- Failure to exhaust does not deprive an appellate court of jurisdiction to consider habeas merits.
- An appellate court is not required to dismiss for nonexhaustion despite the State’s omission below, and it is not required to treat the omission as an absolute waiver.
- The court of appeals must exercise case-specific discretion to decide whether comity, federalism, and the interests of justice are better served by reaching the merits or requiring exhaustion.
- The Seventh Circuit erred by treating nonexhaustion as categorically nonwaivable and failing to conduct the required discretionary analysis.

## Legal Principles

- The § 2254 exhaustion requirement is nonjurisdictional and is grounded in principles of comity that give state courts the first opportunity to correct alleged federal constitutional errors.
- When the State first raises a potentially meritorious nonexhaustion defense on appeal, the court of appeals should decide case by case whether to address the merits immediately or to require further state and federal proceedings.
- Reaching the merits may be appropriate when the federal claim is plainly meritless, making additional proceedings unnecessary.
- Requiring exhaustion generally better serves comity and federalism when state remedies remain available and effective and state courts have not yet had a fair opportunity to consider the federal claim.

## Conclusion

The Supreme Court held that, in § 2254 appeals where the State belatedly asserts nonexhaustion, the court of appeals must use discretion—rather than automatic dismissal or automatic waiver—to determine whether to decide the merits or require exhaustion, and it vacated and remanded because the Seventh Circuit did not apply that approach.


Granberry v. Greer, 481 U.S. 129 (1987)