BOWNES, Circuit Judge.
Petitioner-appellant Niziolek appeals from a judgment of dismissal entered by the United States District Court for the District of Massachusetts denying his petition for a writ of habeas corpus. The petition asserted nine grounds for relief. The district court first dismissed one ground (No. 8), a Brady-Giglio claim, for failure of exhaustion. In a detailed and comprehensive opinion, the court found that petitioner had failed to substantiate his eight other claims. In his brief to this court, petitioner has chosen not to pursue three of the grounds for relief (Nos. 2, 5, and 7) contained in his original petition and presented to the district court. These claims for relief are deemed abandoned. See Red v. Blackburn, 636 F.2d 1027, 1028 (5th Cir. 1981) (per curiam).
The petition filed before this court contains five exhausted claims and one unexhausted claim -- a "mixed" petition. The first issue, therefore, is the applicability of Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379, 50 U.S.L.W. 4272 (1982).
In the course of the district court proceedings, the Commonwealth did not object to the court's consideration of the exhausted claims. After the case was submitted to the district court, but before the opinion issued on March 9, 1982, the Supreme Court, on March 3, 1982, handed down its decision in Rose v. Lundy. This decision, which adopted a "total exhaustion" rule, has changed established First Circuit procedure. Prior to Rose, district courts within the First Circuit considered the merits of the exhausted claims in a mixed habeas petition and dismissed the unexhausted claims.1 Katz v. King, 627 F.2d 568, 574 (1st Cir. 1980); Miller v. Hall, 536 F.2d 967, 969-70 (1st Cir. 1976). In this case it would appear that neither the district court nor the parties were aware of Rose, which, considering the respective dates, is understandable.
Rose holds that the exhaustion rule of 28 U.S.C. § 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus if it contains any claims not exhausted in the state courts. This rule of total exhaustion precludes district court consideration of the exhausted claims contained in a mixed petition; the district court must dismiss such a petition in its entirety. After dismissal, the petitioner is left with a choice: return to the state courts to exhaust all claims or resubmit an amended petition presenting only the exhausted claims. 50 U.S.L.W. at 4273.
By choosing to amend the petition so as to exclude the unexhausted claims, a petitioner does not automatically waive the right to pursue these claims at a later time. If the amended petition is denied by the district court, the petitioner may return to the state courts to seek state relief in connection with the unexhausted claims. Once all state remedies are exhausted, the petitioner is free to file a second habeas petition in the federal district court asserting these claims as new grounds for relief.
In Part III-C of her opinion in Rose -- a section joined only by a plurality of the Court -- Justice O'Connor indicates that a prisoner who chooses to amend, rather than complete exhaustion, risks forfeiting consideration of his or her unexhausted claims in the federal courts. A district court faced with a second habeas petition may dismiss pursuant to 28 U.S.C. § 2254 Rule 9(b), if it finds that "the failure of the petitioner to assert those [new] grounds in a prior petition constituted an abuse of the writ." 50 U.S.L.W. at 4275 (quoting 28 U.S.C. § 2254 Rule 9(b)). Justice Brennan, dissenting from Part III-C of the opinion, concluded that, absent unusual circumstances, the remedy of dismissal for abuse of the writ cannot be employed against a second habeas petition. 50 U.S.L.W. at 4280 (Brennan, J., concurring in part and dissenting in part).2
We do not believe that Rose establishes the exhaustion rule contained in 28 U.S.C. § 2254(b), (c) as a jurisdictional requirement. Rose is not phrased in jurisdictional terms; it does not indicate that either the constitution or Congress has directly confined the federal courts' power over habeas cases. Further, the Court explicitly states that the text of § 2254 does not compel a "total exhaustion" rule and admits that "in all likelihood Congress never thought of the problem [of mixed petitions]." 50 U.S.L.W. at 4274. The Court adopts the "total exhaustion" rule because it "promotes comity and does not unreasonably impair the prisoner's right to relief." 50 U.S.L.W. at 4276. This is not the language of a jurisdictional mandate. We, therefore, reaffirm the First Circuit position that "the exhaustion requirement is not a limit on the jurisdiction of the federal courts but rather, is a doctrine, arising from principles of federal-state comity restraining the appropriate exercise of that jurisdiction." Dirring v. Massachusetts, 459 F.2d 953, 955 (1st Cir. 1972) (per curiam). See also Bowen v. Tennessee, No. 81-5386, slip op. at 2 (6th Cir. July 30, 1982).
The opinion in Rose does not indicate how its "total exhaustion" rule should be applied to cases caught in the time warp, i.e., cases decided by district courts prior to the date of Rose and pending on appeal after its effective date. Nor have the Court's subsequent decisions shed much light on this issue. Since Rose, the Supreme Court has considered three cases presenting mixed habeas petitions. On March 8, 1982, five days after Rose, the Court remanded two cases to federal appellate courts with directions that these courts instruct the appropriate district court to dismiss the mixed habeas petition. Duckworth v. Cowell, 455 U.S. 996, 102 S. Ct. 1626, 71 L. Ed. 2d 858, 50 U.S.L.W. 3715 (1982); Rodriquez v. Harris, 455 U.S. 997, 102 S. Ct. 1627, 71 L. Ed. 2d 858, 50 U.S.L.W. 3715 (1982). In May of 1982, however, the Court remanded a mixed petition case to the circuit court "for further consideration" in light of Rose. Bergman v. Burton, 456 U.S. 953, 102 S. Ct. 2026, 72 L. Ed. 2d 478, 50 U.S.L.W. 3880 (1982). This latest action may indicate that the Supreme Court does not feel that the Rose "total exhaustion" rule should automatically be applied to all cases pending at the time Rose issued.3 We do not read these three cryptic Supreme Court opinions as compelling a dismissal of all mixed petition cases caught in the time warp.
Not surprisingly, the circuits are in disagreement as to how they should handle such cases. At least four circuits have adopted a policy of vacating the district court opinion and remanding to the district court with instructions to dismiss the mixed petitions. In United States ex rel Clauser v. Shadid, 677 F.2d 591, 594 (7th Cir. 1982) (decided May 7, 1982), the Seventh Circuit vacated the district court judgment and remanded with directions to dismiss for lack of jurisdiction. In Slotnick v. O'Lone, 683 F.2d 60 (3d Cir. 1982), the Third Circuit felt compelled by Rose to vacate the district court's denial of the writ. The court made the following observation: "The district court will undoubtedly see [the petitioner] again, and so will we. As an intermediate appellate court, however, we are not free to consider whether the burdens imposed by the Rose v. Lundy rule will be commensurate with the benefits articulated in its support by the Supreme Court." Id. at 61. Similarly, in Jones v. Hess, 681 F.2d 688, 694-96 (10th Cir. 1982) the Tenth Circuit felt it must apply the "total exhaustion" rule despite petitioner's lengthy incarceration since 1971 and the possibility of further delay. In Gulliver v. Dalsheim, 687 F.2d 655 (2d Cir. 1982), a panel of the Second Circuit sua sponte remanded a mixed petition to the district court for dismissal, amendment to delete unexhausted claims, or a determination that the petition had already been so amended, asserting that "the Supreme Court has applied Rose retroactively." 687 F.2d 655, 657, n.2.
Two circuits, however, have chosen to review the exhausted claims on the merits despite Rose. In a recent opinion, the Sixth Circuit held that the "total exhaustion" rule would not be applied to cases where the Rose issue is raised for the first time on appeal. Bowen v. Tennessee, 698 F.2d 241, slip op. at 2-3 (6th Cir. 1982). Similarly, the Eighth Circuit has chosen to review the merits of mixed petitions in certain situations. The court described its practice as follows:
We do not apply the total exhaustion rule here to a habeas case in which the exhausted claims had been fully litigated and decided in the federal district court prior to the Lundy decision. In our view it would constitute a great waste of judicial resources to apply Lundy retroactively and vacate the district court's determination on the merits. The end result of such a retroactive application of Lundy could require the federal district court and this court to reconsider these same claims at another time. This we decline to do without an express direction from the Supreme Court.
Dunn v. Wyrick, 679 F.2d 731, 733 (8th Cir. 1982).
We agree with the Sixth and Eighth Circuits and hold that Rose does not require a federal appellate court to decline review of a district court decision addressing the merits of the exhausted claims in a mixed petition when the district court opinion issued before Rose or was so close in time to Rose as to preclude consideration of it.
A number of reasons underlie our decision. First, Rose is phrased in prospective terms and does not appear to require retroactive dismissal of pending appeals in which the district court did not address the Rose issue. 50 U.S.L.W. at 4275.
Second, Rose is concerned with reducing the burden on the federal courts. To require that exhausted claims decided without an awareness of Rose be subjected to a second, de novo trial in the district courts would be both a burden on the federal courts and a waste of judicial and litigant resources. We find the reasoning of the Sixth Circuit persuasive:
There are unexhausted issues in many cases now pending in the federal appellate courts. In those cases the district courts have given considerable time, thought and energy to the disposition of the exhausted issues. In most the district court has denied the writ; in some it has granted the writ. To send all of those cases back to the district court for dismissal of the exhausted issues would add an unnecessary burden to the work of the district court. Most of the cases will have to be retried after the unexhausted issues are disposed of in the state courts.
Bowen v. Tennessee, 698 F.2d 241, slip op. at 3.
Third, petitioners who filed mixed habeas petitions before Rose announced the requirement of "total exhaustion" cannot be faulted for not meeting this new requirement. Prior practice in eight of the ten federal appellate circuits did not condition district court review upon a petitioner first having exhausted all claims contained in a mixed habeas petition. See Rose v. Lundy, 50 U.S.L.W. at 4273 n.5 and cases cited therein. Those who filed mixed petitions before Rose issued should not be penalized for having followed the procedure that prevailed at the time.
Finally, the number of cases caught in the time warp is both finite and small. The problem will not exist for long.
We now proceed to a consideration of petitioner's five remaining exhausted claims.
Petitioner challenges two aspects of the state proceedings which resulted in his conviction. First, he alleges that the trial judge impermissibly limited the cross-examination of two key prosecution witnesses, resulting in a sixth amendment violation. Second, petitioner alleges that three particular jury instructions deprived him of a fundamentally fair trial in violation of his constitutional due process rights. Finally, petitioner alleges that the cumulative effect of all of the alleged errors violated his due process rights.
In reviewing a habeas petition, whether filed by a state or a federal prisoner, we are guided by the statutory mandate that such petitions be resolved "as law and justice require." 28 U.S.C. § 2243. The availability of federal habeas relief for a state prisoner, however, is more limited than for a federal prisoner. Under 28 U.S.C. § 2254(a), a state prisoner is entitled to federal habeas relief only when his or her custody is in violation of the Constitution, laws or treaties of the United States. Principles of comity dictate that a higher standard of cognizability be required of errors alleged by prisoners who are incarcerated as a result of state court proceedings. Fasano v. Hall, 615 F.2d 555, 557 (1st Cir.), cert. denied, 449 U.S. 867, 66 L. Ed. 2d 86, 101 S. Ct. 201 (1980). Of course, state trial errors that render a fair trial impossible will be cognizable in federal habeas corpus, because such errors violate the due process clause. Many trial errors, however, are not of sufficient impact to constitute a denial of due process. See, e.g., Bivens v. Wyrick, 640 F.2d 179, 181 (8th Cir. 1981) (prosecutor's improper cross-examination); Allen v. Snow, 635 F.2d 12, 14-15 (1st Cir. 1980), cert. denied, 451 U.S. 910, 68 L. Ed. 2d 299, 101 S. Ct. 1981 (1981) (prosecutor's reference to other fires on petitioner's property did not render petitioner's trial on arson charges fundamentally unfair); Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir. 1981) (erroneous admission of hearsay); Jacobs v. Redman, 616 F.2d 1251, 1257 (3d Cir.), cert. denied, 446 U.S. 944, 64 L. Ed. 2d 799, 100 S. Ct. 2170 (1980) (trial court's failure to ask questions proposed by defense counsel on voir dire, though troubling, did not rise to level of constitutional error).
The opinion of the Massachusetts Supreme Judicial Court, Commonwealth v. Niziolek, 380 Mass. 513, 404 N.E.2d 643 (1980), sets forth all of the facts upon which petitioner was convicted. Only a few facts need be repeated here to provide a context for the discussion of petitioner's claims.
Niziolek was convicted by a jury in the Superior Court of the Commonwealth of Massachusetts on six indictments -- one for arson, one for burning insured property, and four for larceny over $100. On appeal, the Massachusetts Supreme Judicial Court reversed the arson conviction because of errors in the jury instructions but affirmed the other convictions. The court reversed petitioner's arson conviction based on the combination of three factors. First, the trial judge failed to give the jury any definition of the term "malice" -- a necessary element of the crime of arson. The jury was thus required to speculate as to the legal meaning of the term "malice." Second, the trial judge instructed the jury that "malice may be inferred from the wilful act of setting the fire or causing the fire to be set." The jury was thus allowed to draw an inference of malice without having that term defined for them. Third, the trial judge instructed the jury that "[a] person is presumed to intend the natural and probable consequence of his own acts." Viewing these three factors in combination, the Massachusetts Supreme Judicial Court concluded that "the jury instructions relative to the crime of arson were so flawed as to deprive the defendant of his due process right to be acquitted unless the Commonwealth proves every element of the crime beyond a reasonable doubt." Id. at 651-52.
The Massachusetts Supreme Judicial Court felt that the general instruction on intent apparently was meant to apply to all of the felonies with which petitioner Niziolek was charged. It concluded, however, that this instruction "did not fatally infect the respective charges on burning insured property and larceny . . . ." Id. at 651. The court gave two reasons for reaching this conclusion:
First, the charges on those two crimes were not flawed by any definitional deficiency as was the arson charge. Second, the judge added an acceptable explanation of the intent requirement to his specific charges on burning insured property and larceny, which was conspicuously lacking from his charge on arson.
* Of the Federal Circuit, sitting by designation.
1. Prior to Rose, only two courts of appeals, the Fifth Circuit and the Ninth Circuit, had adopted a "total exhaustion" requirement. See Galtieri v. Wainwright, 582 F.2d 348, 355-60 (5th Cir. 1978) (in banc); Gonzales v. Stone, 546 F.2d 807, 808-10 (9th Cir. 1976).
2. Courts which have considered this issue differ as to the magnitude of the risk which the petitioner runs by amending the original habeas petition and filing a subsequent petition. Compare Powell v. Spalding, 679 F.2d 163, 165-66 n.2 (9th Cir. 1982) (appellate court convinced that petitioner's subsequent habeas petition would not be barred by the abuse-of-the-writ doctrine) and Martin v. White, 538 F. Supp. 326, 327-28 (W.D.Mo. 1982) (district court rejects argument that Rose requires the dismissal of subsequent habeas petitions for abuse-of-the-writ in every case), with Jones v. Hess, 681 F.2d 688, 695-96 (10th Cir. 1982) (petitioner warned that he runs the risk of forfeiting consideration of his unexhausted claims in federal court) and Fugett v. Marshall, 541 F. Supp. 293, 295-95 (S.D. Ohio 1982) (same). In light of our decision to examine the merits of petitioner's exhausted claims, we need not address the "substantial risk of forfeiture" issue.
3. We note that in Justice Stevens' dissent in Bergman, he states that "nothing in the Court's opinion in Rose v. Lundy or in anything the Court has written since, justifies the Court's reaching out on its own initiative to apply its new rule to previously decided cases." 50 U.S.L.W. at 3880 n.4 (Stevens, J., dissenting).
4. In relevant part, petitioner's pretrial statement reads: Sometime in October of 1976, I was talking with Ray Bednarz, he is the owner of Ray's Trucks on Parker St., I.O., about having my 3 family house torched . . . . In talking with Mr. Bednarz he thought he could find someone to do the job. I then left Ray's Trucks on Parker St. This was sometime in October. I never saw him or called him regarding having my house torched again.
5. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. CONST. amend. VI.
6. Massachusetts state law concerning restrictions on cross-examination comports with the federal standards. It has recognized that criminal defendants "are entitled, as of right, to reasonable cross-examination of a witness for the purpose of showing bias, particularly where that witness may have a motivation to seek favor with the government. However, the trial judge still has discretion to control the scope of the examination." Commonwealth v. Dougan, 377 Mass. 303, 386 N.E.2d 1, 5 (1979) (citations omitted); see also Commonwealth v. Best, 381 Mass. 472, 411 N.E.2d 442, 452 (1980) (trial judge may reasonably control scope of cross-examination, "particularly, perhaps, when directed to showing a witness's bias"). A court-imposed limitation upon cross-examination of an adverse witness is not necessarily an infringement of the sixth amendment right to cross-examine "where the matters sought to be elicited have been sufficiently brought to the attention of the trier of fact through other questioning or other means." Commonwealth v. Walker, 370 Mass. 548, 350 N.E.2d 678, 695 (citations omitted), cert. denied, 429 U.S. 943, 97 S. Ct. 363, 50 L. Ed. 2d 314 (1976).
7. At two other points in the jury charge, the trial judge stressed that the jury, and not he, was to determine all facts, stating: "If you believe that I have expressed or intimated any opinion as to the facts, you should disregard it."