Jihad Abdullah Sharrieff v. Ronald H. Cathel, Administrator

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1156
JIHAD ABDULLAH SHARRIEFF,
Appellant
v.
RONALD H. CATHEL, ADMINISTRATOR;
THE ATTORNEY GENERAL OF THE STATE
OF NEW JERSEY PETER C. HARVEY
On Appeal from the United States District Court
for the District Court of New Jersey
District Court No.05-cv-04525
District Judge: The Honorable Jose L. Linares
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 24, 2009

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The Honorable Jane A. Restani, Chief Judge of the*
United States Court of International Trade, sitting by
designation.
We refer to Ronald H. Cathel and the Attorney General1
of the State of New Jersey collectively as the “State”.
2
Before: BARRY, SMITH, Circuit Judges
and RESTANI, Judge.*
(Filed: July 30, 2009)
OPINION
SMITH, Circuit Judge.
Appellant Jihad Abdullah Sharrieff unsuccessfully
petitioned the District Court for habeas relief based on an
alleged violation of his Sixth Amendment rights under Blakely
v. Washington, 542 U.S. 296 (2004). Because the State admits1
that a Blakely violation occurred, this appeal turns on the
resolution of one issue: whether the State expressly waived the
exhaustion requirement under 28 U.S.C. § 2254(b)(3) when it
conceded exhaustion before the District Court. We hold that it
did. Accordingly, we will reverse the District Court’s decision
in part, and remand with instructions to grant Sharrieff’s petition
for habeas relief so that he may be resentenced in state court on

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The Appellate Division remanded the case for entry of2
an amended judgment to correct merger errors that are not at
issue in this appeal.
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his two robbery convictions.
I.
Sharrieff was convicted in the Superior Court of New
Jersey of charges stemming from the armed robbery of two
individuals and the murder of a third. He was sentenced to a
total term of imprisonment of life plus forty years with a sixty-
four-year parole bar. On April 8, 2004, the Superior Court of
New Jersey, Appellate Division, denied Sharrieff’s appeal of his
convictions and sentences for committing the robberies and the
murder.2
On June 24, 2004, the United States Supreme Court
issued its decision in Blakely v. Washington. On January 5,
2005, Sharrieff filed two documents with the Supreme Court of
New Jersey: 1) a motion for leave to file a notice of petition for
certification nunc pro tunc, and 2) a letter-petition for
certification that argued, for the first time, that his sentences
were imposed in violation of Blakely. The Supreme Court of
New Jersey granted Sharrieff’s motion for leave to file a notice
of petition for certification as within time, but denied his
petition for certification.

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Following the Supreme Court of New Jersey’s denial,
Sharrieff petitioned the District Court for habeas relief without
first seeking post-conviction relief in state court. In his federal
habeas petition, Sharrieff raised, inter alia, a claim that his
sentences were imposed in violation of Blakely. In its answer,
the State “emphasize[d] that petitioner has received a full, fair
and adequate hearing by the New Jersey State Courts with
respect to all of the issues raised.” Specifically addressing
Sharrieff’s Blakely claim, the State noted that Sharrieff did not
raise it prior to his petition for certification, but concluded that
it “appears that [Sharrieff] has exhausted his state court remedy
as to this issue, since he presented it to the state’s highest court
in his petition for certification.”
The District Court denied Sharrieff’s habeas petition on
its merits and refused to issue a certificate of appealability. We
issued a certificate of appealability to determine whether the
sentences for Sharrieff’s two robbery convictions were imposed
in violation of Blakely. We denied Sharrieff’s request for a
certificate of appealability as to all other issues.
II.
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254, and we have jurisdiction under 28 U.S.C. §§
1291 and 2253. Since the District Court ruled on Sharrieff’s
habeas petition without an evidentiary hearing, our review of its
decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50

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According to N.J. Ct. R. 2:12-4,3
Certification will be granted only if the appeal
presents a question of general public importance
which has not been but should be settled by the
Supreme Court or is similar to a question
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(3d Cir. 2002). “Thus, we will review the state courts’ decisions
applying the same standard as the District Court.” Id. Here,
since no state court has adjudicated the merits of Sharrieff’s
Blakely claim, we will review pure legal questions and mixed
questions of law and fact de novo, but will presume the
correctness of any factual determinations that the state courts
have made. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir.
2001).
III.
Both Sharrieff and the State agree that the sentences for
his robbery convictions were imposed in violation of Blakely.
But “[w]ithout an express waiver by the state, a federal court is
allowed under 28 U.S.C. § 2254(b)(1)(A) to grant a state
prisoner’s habeas petition only if the petitioner has exhausted all
available state remedies.” Bronshtein v. Horn, 404 F.3d 700,
725 (3d Cir. 2005). Here, it is clear that Sharrieff has not
exhausted all available state remedies. He does not dispute the
State’s assertion that he could obtain relief through state post-
conviction proceedings. And since the Supreme Court of New
Jersey exercises discretionary review, N.J. Ct. R. 2:12-4, it was3

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presented on another appeal to the Supreme
Court; if the decision under review is in conflict
with any other decision of the same or a higher
court or calls for an exercise of the Supreme
Court’s supervision and in other matters if the
interest of justice requires. Certification will not
be allowed on final judgments of the Appellate
Division except for special reasons.
In Castille, the Court recognized exceptions to this4
general rule “where the State has actually passed upon the claim,
. . . and where the claim has been presented as of right but
ignored (and therefore impliedly rejected) . . . .” 489 U.S. at
351. Neither of those exceptions apply here.
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not enough for Sharrieff to assert, for the first and only time in
state court, his Blakely claim in his petition for certification. See
Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that “the
submission of a new claim to a State’s highest court on
discretionary review” does not constitute a fair presentation of
that claim for exhaustion purposes). Therefore, even though4
the State concedes that relief is warranted on the merits of his
Blakely claim, we must deny Sharrieff’s habeas petition unless
the State has expressly waived the exhaustion requirement. See
Bronshtein, 404 F.3d at 725.
The express waiver requirement is mandated by statute.
See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to
have waived the exhaustion requirement or be estopped from

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reliance upon the requirement unless the State, through counsel,
expressly waives the requirement.”). Under Section 2254(b)(3),
an express waiver requires more than just the failure to raise
exhaustion as a defense. See Lambert v. Blackwell, 134 F.3d
506, 514 (3d Cir. 1997) (noting that since the Antiterrorism and
Effective Death Penalty Act was passed, “a district court may no
longer infer that a state has waived the nonexhaustion defense
from its failure to invoke the defense expressly”). Section
2254(b)(3), however, does not specify what constitutes an
“express[] waive[r].”
Five other courts of appeals have reached this issue.
D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008); Pike v.
Guarino, 492 F.3d 61 (1st Cir. 2007); Kerns v. Ault, 408 F.3d
447 (8th Cir. 2005); Dorsey v. Chapman, 262 F.3d 1181 (11th
Cir. 2001); Bledsue v. Johnson, 188 F.3d 250 (5th Cir. 1999).
Four of these courts have held a state’s concession of exhaustion
before the District Court to be an express waiver of the
exhaustion requirement under Section 2254(b)(3). Pike, 492
F.3d at 71–73; Kerns, 408 F.3d at 449 n.3; Dorsey, 262 F.3d at
1186–87; Bledsue, 188 F.3d at 254. The fifth court, the Sixth
Circuit, has concluded that a state can expressly waive the
exhaustion requirement by acting in a manner consistent with
the District Court’s stated understanding that the state had
conceded exhaustion. See D’Ambrosio, 527 F.3d at 496 (“This
is an extraordinary case in which the district court stated that it
understood exhaustion to be a non-issue and that the [state]
would not later assert it, the [state] failed to correct what the

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district court clearly viewed as the [state]’s position during the
almost four years of litigation before that court, and the [state]
went on to state to the district court that [the petitioner]’s claims
would be untimely in the state courts (thereby confirming the
district court’s understanding).”).
Here, the State would have us reach a decision contrary
to those of our sister circuits. It points to George v. Sively, 254
F.3d 438 (3d Cir. 2001), where we refused to deem exhaustion
expressly waived even though “the United States Attorney has
argued that we should hear [the petitioner’s] appeal and should
not require [the petitioner] to exhaust his territorial remedies.”
Id. at 441 n.4. It argues that this language requires us to hold a
concession in an answer insufficient to expressly waive the
exhaustion requirement. We do not agree. George concerned
whether a petitioner convicted of territorial offenses in the
District Court of the Virgin Islands could collaterally attack his
conviction and sentence under 28 U.S.C. § 2255. Id. at 440–41.
There, the government asserted that the petitioner “was entitled
to proceed under § 2255 and was not required instead to exhaust
his territorial remedies.” Id. at 441. This means that the
government’s position was that Section 2254 did not apply.
Accordingly, when the government “argued that we should hear
[the petitioner’s] appeal and should not require [the petitioner]
to exhaust his territorial remedies,” it was not conceding that
Section 2254’s exhaustion requirement had been satisfied;
instead, it was claiming that the requirement need not be met at
all. Since there was no concession of exhaustion, George does

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not control the present case.
A “waiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v. Olano, 507
U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)). To be express, a waiver of exhaustion must be
clear, explicit, and unambiguous. See D’Ambrosio, 527 F.3d at
495 (“Courts also generally agree that ‘express’ is synonymous
with ‘clear’ or ‘unambiguous.’”); Pike, 492 F.3d at 72 (“It is
hornbook law that waivers of exhaustion will not lightly be
inferred but, rather, must be clear and explicit.”); Dorsey, 262
F.3d at 1187 (“[T]he state’s explicit waiver of [the
nonexhaustion] defense before the district court forecloses it
being asserted here.”); see also Webster’s Third New Int’l
Dictionary 803 (1966) (defining “express” as “directly and
distinctly stated or expressed . . . not dubious or ambiguous . . .
definite, clear, explicit, unmistakable . . .”). Here, the State
conceded exhaustion before the District Court by stating in its
answer to Sharrieff’s habeas petition that it “appears that
[Sharrieff] has exhausted his state court remedy as to [the
Blakely] issue, since he presented it to the state’s highest court
in his petition for certification.” The fact that the State based its
concession on a flawed legal conclusion is of no consequence;
its concession clearly, explicitly, and unambiguously
relinquished and abandoned its right to assert the nonexhaustion
defense. That is enough to expressly waive the exhaustion
requirement under Section 2254(b)(3). See Kerns, 408 F.3d at
449 n.3 (holding that the state expressly waived the exhaustion

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We acknowledge that our holding is contrary to Dreher5
v. Pinchak, 61 F. App’x 800 (3d Cir. 2003). Dreher, however,
was an unpublished and not precedential opinion.
In Pike, the First Circuit held that “[a] federal court may6
choose, in its sound discretion, to reject a state’s waiver of . . .
nonexhaustion . . . .” See Pike, 492 F.3d at 74. Assuming that
we had such discretionary power, we would not exercise it here.
The State admits that a Blakely violation occurred and that
Sharrieff is entitled to be resentenced on his two robbery
convictions. Under these circumstances, “it is evident that a
miscarriage of justice has occurred,” and it is appropriate to
reach the merits of Sharrieff’s petition “in order to avoid
unnecessary delay in granting relief that is plainly warranted.”
Granberry v. Greer, 481 U.S. 129, 135 (1987).
Nonetheless, neither party has briefed whether we have
the discretion to reject the State’s express waiver of exhaustion.
Since resolution of this issue would not affect our decision here,
we leave it for another day.
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requirement with a concession in its district court briefing, even
though the concession was made in error); Dorsey, 262 F.3d at
1187 (concluding that the state expressly waived the
nonexhaustion defense where the state, based on a mistaken
belief, expressly declined to raise the defense in its answer to the
federal habeas petition). Therefore, we may reach the merits of5
Sharrieff’s habeas petition, and will grant him the uncontested6
relief that he seeks.

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IV.
Section 2254(b)(3) requires that a state’s waiver of
exhaustion be express, but it does not demand the invocation of
any “magic words.” Here, by conceding exhaustion in its
answer to Sharrieff’s habeas petition, the State clearly,
explicitly, and unambiguously waived the exhaustion
requirement. Both parties agree that, on the merits of his
petition, Sharrieff is entitled to be resentenced on his two
robbery convictions. Accordingly, we will reverse the District
Court’s decision in part, and remand with instructions to grant
Sharrieff’s habeas petition so that he may be resentenced on
those two convictions.

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