District Court judgment denying plaintiff's petition for habeas corpus and refusing to issue a certificate of appealability is reversed in part where the state clearly and unambiguously waived the exhaustion requirement under 28 U.S.C. sec. 2254(b)(3) when it conceded exhaustion in its answer to plaintiff's habeas petition. Plaintiff's habeas petition should be granted so that he may be resentenced on his two robbery convictions.
On Appeal from the United States District Court for the District Court of New Jersey.
Submitted June 24, 2009
Filed July 30, 2009
Before: BARRY, SMITH, Circuit Judges and RESTANI, Judge.
Opinion by SMITH, Circuit Judge.