Habeas Petitioner Gains Remand for Court to Address Other Claims; State Could Not Take Back Admission the State Claims Were Exhausted

McCormick v. Parker, 2014 WL 3306546 (7/9/14) (Okl.) (unpub'd) - Everyone agrees the district court erred when it found its grant of relief vacating the Count II conviction---the child abuse charge---mooted Mr. McCormick's challenges to the Count I child sexual abuse charge. Mr. McCormick still had an interest in getting relief with respect to Count I. The state's statement in its response that Mr. McCormick had exhausted his state court remedies and its addressing of the merits of the petition constituted the express waiver that absolves a petitioner from having to exhaust his claims. This was not an inadvertent mistake. "The fact that the state now regrets its waiver is not a sufficient reason to allow rescision of the waiver." And by waiving exhaustion the state also waives a procedural default argument that Mr. McCormick could not raise the issues now in state court because he didn't raise them before in state court. On the other hand, the district court could consider on remand the state's argument that the claims were defaulted because the state post-conviction court found Mr. McCormick's issues could have been raised on direct appeal. The 10th refuses to address the merits, as the state requested, because their resolution is not beyond any doubt. Mr. McCormick raised Brady and ineffective assistance claims based on evidence the state witness who testified penetration was indicated by tearing and scarring of the child victim's hymen and anus lied about her qualifications. She claimed to be RN and SANE certified, but she had lost her RN and SANE certification almost 3 years before trial.