Lee v. Stickman ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-11-2004
Lee v. Stickman
Precedential or Non-Precedential: Precedential
Docket No. 02-3497
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"Lee v. Stickman" (2004). 2004 Decisions. Paper 959.
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PRECEDENTIAL Stephen J. Binhak, Esquire (Argued)
UNITED STATES COURT OF 3103 Philmont Avenue
APPEALS Huntingdon Valley, PA 19006
FOR THE THIRD CIRCUIT
______________ Counsel for Appellant
No: 02-3497
______________ Ronald M. Wabby, Jr., Esquire (Argued)
401 Allegheny County Courthouse
KENNETH LEE, Pittsburgh, PA 15219
Appellant Counsel for Appellees
v.
OPINION
WILLIAM STICKMAN;
STEPHEN ZAPPALA, JR.;
MICHAEL FISHER CUDAHY, Circuit Judge
This is an appeal by Kenneth Lee
from an order of the United States
Appeal from the United States District District Court for the Western District of
Court Pennsylvania dismissing his petition for a
for the Western District of Pennsylvania writ of habeas corpus on the ground that
(D.C. Civil Action No. 02-cv-01013) he had failed to exhaust available state
District Judge: Honorable Robert J. court remedies. Lee contends that we
Cindrich must excuse the exhaustion requirement
______________________ because of the eight-year delay in his
post-conviction collateral proceedings in
Argued on December 18, 2003 the Pennsylvania state courts. W e agree.
We therefore reverse the order of the
Before: ROTH, MCKEE and district court and remand the case for
CUDAHY* , Circuit Judges consideration of Lee’s habeas petition on
the merits.
(Opinion filed: February 11, 2004)
__________________ I.
If William Shakespeare were to
*The Honorable Richard D. summarize Lee’s experience with the
Cudahy, Circuit Judge for the United Pennsylvania state courts, he might
States Court of Appeals for the Seventh describe it as “a tale told by an idiot, full
Circuit, sitting by designation. of sound and fury, signifying nothing.”
William Shakespeare, Macbeth, act 5, sc. to provide notice within thirty days, the
5., lines 26-28. The epic begins on April petition would be dismissed.
30, 1992, when a jury convicted Lee of
possession of cocaine, possession with For reasons unknown to this
intent to deliver cocaine and resisting Court, Lee did not respond to this order.
arrest. On June 25, 1992, Lee was In January 1996, Lee was still awaiting a
sentenced by the Court of Common Pleas decision on his PCRA petition, so he
of Allegheny County to 1.5 - 5 years filed a Motion for Relief / Disposition
imprisonment followed by five years of Without Hearing. In this application,
probation. After an unsuccessful direct Lee reiterated the jury bias claim, but did
appeal, Lee filed a pro se petition under not reassert the other claims he had made
the Pennsylvania Post Conviction Relief in the PCRA petition. On February 25,
Act (“PCRA”) on February 13, 1995. 42 1996, the court dismissed Lee’s Motion
Pa. Cons. Stat. Ann. § 9541 et seq. In his for Relief / Disposition Without Hearing,
PCRA petition, Lee raised five explaining that Lee had waived the right
arguments: (1) the trial judge abused his to challenge the juror by not raising the
discretion in denying a motion to issue earlier. On August 16, 1996,
suppress; (2) the trial judge wrongfully eighteen months after Lee submitted the
denied a motion to arrest judgment; (3) PCRA petition, the court dismissed that
one of the jurors was biased because of petition for the sole reason that Lee had
his employment with the Allegheny failed to indicate whether he would
County Court of Common Pleas; (4) the proceed pro se. On August 25, 1996,
evidence did not support a conviction; Lee appealed this dismissal.
and (5) the trial judge wrongfully cross-
examined Lee in front of the jury. Most On March 17, 1998, eighteen
of these arguments have never been months after this appeal, the Superior
considered on the merits by any court. Court of Pennsylvania vacated the
August 16, 1996 Order of the lower court
On February 28, 1995, a PCRA because the Court of Common Pleas had
counsel was appointed for Lee. On May failed to provide notice of intent to
11, 1995, after hearing nothing from the dismiss the PCRA petition, notice of the
court, Lee filed a Petition For Writ of reasons for dismissal and an opportunity
Habeas Corpus in the same court. This for Lee to respond before dismissal. The
petition was denied because the PCRA Superior Court also noted that Lee had
petition was pending. On June 1, 1995, made clear his intent to proceed pro se
PCRA counsel requested that he be long before the Court of Common Pleas
relieved as counsel since Lee wanted to dismissed his petition. App. Vol. II at
represent himself. This request was 114 n.1.1
granted. On June 6, 1995, the court
ordered Lee to provide notice of whether
he intended to pursue his PCRA petition 1
The appendix annexed to Petitioner’s
pro se. The order noted that if Lee failed brief in this case will be designated as
On August 14, 1998, five months the Court of Common Pleas to do so, the
later, the Court of Common Pleas issued Superior Court remanded the case to the
a new opinion in response to the ruling Court of Common Pleas to determine
of the Superior Court. This new opinion, whether Lee was still serving his
however, mistakenly did not address the sentence.2
PCRA petition, but instead addressed
only the Motion for Relief / Disposition On June 25, 2002, Lee filed a
Without Hearing, which it had already Third Amendment to the PCRA petition,
dismissed. Nonetheless, the court attempting to highlight the fact that no
concluded its opinion by ordering that court had addressed his claims. The
the PCRA petition be dismissed within Commonwealth moved to dismiss this
twenty days unless Lee could show cause application contending that Lee had
why the court should rule otherwise. served his sentence in full. On July 19,
Within that deadline, Lee filed a 2002, the Commonwealth withdrew this
response in which he reiterated the five motion when it realized that Lee was still
claims in his original PCRA petition and serving his sentence. On February 25,
also added an ineffective assistance of 2003, almost a year after the remand, the
counsel claim. On September 23, 1998, Court of Common Pleas reinstated its
the trial court dismissed the PCRA September 23, 1998 Order. Lee appealed
petition without further comment. this decision to the Superior Court,
which has not yet ruled on his appeal.
Lee filed a timely appeal on
October 17, 1998. The case was not On June 5, 2002, Lee filed a
submitted for a panel review in the Petition for Writ of Habeas Corpus in the
Superior Court until almost three years United States District Court. In that
later, in September of 2001. According petition, Lee alleged ineffective
to the Superior Court the delay occured assistance of counsel at the trial and
because “[i]nexplicably, the trial court appellate level, denial of due process,
record was not . . . filed in this Court denial of fair trial, denial of equal
until April 2001.” Id. at 201. On March protection and prosecutorial misconduct.
20, 2002, almost six months after the Lee also filed a brief explaining his
case had been submitted for review, the failure to exhaust state remedies. On
Superior Court issued its decision. The September 3, 2002, the U.S. District
Superior Court noted that “[t]he Court dismissed the habeas petition for
procedural history in this case is failure to exhaust state remedies. At the
torturous” and called it “an ongoing time of this appeal, Lee was serving
odyssey of litigation.” Id. at 200-01. probation which was scheduled to end on
Nonetheless, instead of deciding the
PCRA petition on the merits or directing
2
On May 1, 2002, Lee petitioned the
Superior Court for additional relief, but
“App.” that petition was denied.
October 10, 2003. ex rel. Senk v. Brierley, 471 F.2d 657,
660 (3d Cir. 1973) (three and a half year
II. delay); United States ex rel. Geisler v.
Under ordinary circumstances, a Walters, 510 F.2d 887, 893 (3d Cir.
federal court may not entertain a petition 1975) (stating in dicta that three years
for a writ of habeas corpus unless the and four months to decide a motion for a
petitioner has first presented each of his new trial was an inordinate delay
claims to the state’s highest tribunal. See sufficient to obviate the exhaustion
28 U.S.C. §§ 2254 (b), (c); Rose v. requirement). The government attempts
Lundy, 455 U.S. 509, 515-16 (1982). to distinguish this precedent by noting
Exhaustion, however, is not a that these cases were inactive for years
jurisdictional matter but a matter of (i.e., no hearings, decisions, etc.) while in
comity. See Story v. Kindt, 26 F.3d 402, Lee’s case there has been a great deal of
405 (3d Cir. 1994). Federal courts need movement. Gov’t. Br. at 28. The same,
not defer to the state judicial process however, can be said for a grand mal
when there is no appropriate remedy at seizure. Unfortunately, in both cases, the
the state level or when the state process movement is painful and aimless.
would frustrate the use of an available
remedy. Id.; 28 U.S.C. § 2254(b)(1)(B). It took the lower court eighteen
We have held that “inexcusable or months to dismiss Lee’s petition for the
inordinate delay by the state in sole procedural reason that Lee failed to
processing claims for relief may render officially state whether he intended to
the state remedy effectively unavailable.” proceed pro se. It then took another
Wojtczak v. Fulcomer, 800 F.2d 353, 354 eighteen months for the Superior Court
(3d Cir. 1986). The existence of an to vacate that order and remand the
inordinate delay does not automatically petition. When the lower court finally
excuse the exhaustion requirement, but it decided the petition on the merits, it
does shift the burden to the state to decided the wrong petition. Due to what
demonstrate why exhaustion should still appears to be an administrative error (or
be required. Story, 26 F.3d at 405 a string of such errors), the record was
(noting that this burden is “difficult to not available to the appellate court until
meet”). almost three years later. It was not until
another six months later that the
In the past, we have excused the appellate court remanded the case.
exhaustion requirement for petitioners However, the remand was solely to
who have undergone significantly shorter determine whether Lee was still in
delays than presented here. Wojtczak, custody. It then took almost a year for
800 F.2d 353, 356 (33 month delay the lower court to reinstate its dismissal.
between filing PCRA and habeas As far as we know the appellate court
petitions); Burkett v. Cunningham, 826 still has not ruled on this dismissal. The
F.2d 1208, 1210-11 (3d Cir. 1987) (five arguments made in Petitioner’s initial
year delay in sentencing); United States PCRA petition have still not been
considered by any court. This ping-pong court’s ruling on his motions, and the
game the state court was playing with concomitant delay in sentencing him.”).
Lee’s petition would almost be comical if Thus, Schandelmeier stands for the
Lee had not been in custody this entire unremarkable proposition that the
time awaiting resolution. allegations underlying a habeas petition
must first be presented for consideration
In deciding whether a delay is in state court. Id. In the present case,
excessive, we do consider the degree of however, Lee’s petition is not based on
progress made in state court. See, e.g., the state court delay but on other alleged
Cristin v. Brennan, 281 F.3d 404, 411 constitutional violations. Moreover,
(3d Cir. 2002) (holding that a 27 month Schandelmeier was unable to show that
delay was not excessive given that a “there was no opportunity for him to
hearing was held and the petition was obtain redress in the state court system”
ruled upon). In this case, however, we because “[t]he only actions taken by
do not believe that any real progress has Schandelmeier to obtain state relief on
been made. Regardless, it is difficult to the grounds asserted in his federal
envision any amount of progress petition [were] the letters that he
justifying an eight-year delay in reaching allegedly wrote to the trial court.” Id. at
the merits of a petition. 53-54. In contrast, Lee has done all that
can reasonably be expected to pursue his
The government now has the claim in state court. “[I]t is the legal
chutzpah to suggest that Lee should have issues that are to be exhausted, not the
first presented this “inordinate delay” petitioner.” Burkett, 826 F.2d at 1218
claim to the state court. Gov’t. Br. at 24. (quoting Walters, 510 F.2d at 893).
If only finite life-spans would permit. Therefore, we decline the government’s
Given that it has thus far taken eight invitation to return Lee’s petition to legal
years for the state court to consider Lee’s purgatory.
collateral attack, we can only imagine
how long it would take to decide whether To add insult to injury, the
it is taking too long. Thankfully, there is government concludes that “appellant
no requirement that a petitioner seeking will not be entitled to relief” because “as
to excuse the exhaustion requirement of October 3, 2003 appellant will fail to
first articulate the grounds therefor in satisfy the ‘in custody’ requirement [of
state court. The case upon which the §2254(a)], [as] his sentence will be
government relies for that proposition, completed.” Gov’t. Br. at 30 n.10.
Schandelmeier v. Cunningham, 819 F.2d However, what matters for the “in
52, 54 (3d Cir. 1986), is inapposite. custody” requirement is whether Lee was
Unlike the present case, the substantive in custody at the time his habeas petition
basis for Schandelmeier’s habeas claim was filed. See 28 U.S.C. § 2254; Spencer
was, itself, the delay in state court. Id. at v. Kemna, 523 U.S. 1, 7 (1998). It is
54 (“His habeas petition . . . is based equally clear that being on probation
entirely upon the delay in the state meets the “in custody” requirement for
purposes of the habeas statute. See Nor is Lee’s appeal moot. See
Mabry v. Johnson, 467 U.S. 504, 507 n.3 United States v. Frumento, 552 F.2d 534
(1984) (prisoner on parole remains “in (3d Cir. 1977) (en banc). In Frumento,
custody” for purposes of 28 U.S.C. § we noted that “an appeal is not moot
2254); Barry v. Brower, 864 F.2d 294, even though the appellant has been
296 (3d Cir. 1988) (“We can see no released from custody or has served his
material difference between probation sentence if he has taken all possible steps
and parole in applying the ‘in custody’ to have the order of confinement
requirement of § 2254.”). Because it is promptly reviewed prior to his release.”
not disputed that Lee was on probation at Id. at 537, citing Sibron v. State of New
the time his federal habeas petition was York, 392 U.S. 40, 53 (1968) (“[A] state
filed, it is clear that he was “in custody” may not effectively deny a convict access
for purposes of the habeas statute.3 to its appellate courts until he has been
released and then argue that his case has
been mooted by his failure to do what it
3
The Supreme Court has explained alone prevented him from doing.”); cf.
that the federal habeas statute requires Fay v. Noia, 372 U.S. 391, 424 (1963)
that the petitioner be in custody “under (“[C]onventional notions of finality in
the conviction or sentence under attack at criminal litigation cannot be permitted to
the time his petition is filed.” Maleng v.
Cook, 490 U.S. 488, 490-91 (1989). The
fact that Lee is attacking his original one conditional sentence which merely
conviction and sentence but is “in deferred sentencing the defendant to a
custody” as a result of a probation fixed term of total confinement until
violation is inconsequential. Under such time as he violated the conditions of
Pennsylvania law, a violation of his probation); 42 Pa. Cons. Stat. Ann. §
probation is not considered a separate 9771(b) (“Upon revocation the
offense but an element of the original sentencing alternatives available to the
sentence. See Commonwealth v. Pierce, court shall be the same as were available
497 Pa. 437, 441, 411 A.2d 1218, 1220 at the time of initial sentencing, due
(1982) (“The imposition of total consideration being given to the time
confinement upon revocation of spent serving the order of probation.”).
appellant’s probation was not a second The same is true under federal law. See
punishment for his robbery conviction, United States v. Hidalgo-Macias, 300
but was an integral element of the F.3d 281, 285 (2d Cir. 2002) (compiling
original conditional sentence.”); cases); United States v. Thomas, 961
Commonwealth v. Colding, 482 Pa. 112, F.2d 1110, 1119 (3d Cir. 1992) (“For
393 A.2d 404 (1978) (holding that the parole and probation revocations, the
revocation of probation and the Guidelines specify that the original
imposition of a term of total confinement sentence and the sentence imposed after
was not violative of the double jeopardy probation is revoked are added and
clause, since the defendant was given counted as if they were one sentence.”).
defeat the manifest federal policy that Godot. The government has not met this
federal constitutional rights of personal burden.5 We therefore conclude that Lee
liberty shall not be denied without the should be required to wait no longer and
fullest opportunity for plenary federal that the district court should entertain his
judicial review.”). 4 In the present case, petition on its merits.6 See Wojtczak, 800
we find that Lee took all possible steps to F.2d at 356. We reverse and remand for
have his claims promptly reviewed prior that purpose.
to his release. While it is true that Lee
could have brought his federal habeas
petition earlier in the hope that we would
have excused the exhaustion
requirement, the success of such efforts
would be mere speculation. Moreover,
we cannot fault Lee for first attempting
to exhaust state remedies.
In summary, Lee has shown that,
at the time he filed his federal habeas
corpus petition, his PCRA petition had 5
We note that if we were to affirm
been before the Pennsylvania state courts
the district court and thus require Lee to
for almost eight years with no resolution.
exhaust his state remedies, he would
Under these circumstances, the burden
never be able to file a federal habeas
was on the government to demonstrate
petition because he would not meet the
why Lee should continue to wait for
“in custody” requirement at the time of
the filing of his petition. See 28 U.S.C.
§2254(a). This is one reason we have
4
In subsequent cases, we noted that suggested that “when petitioners have
this exception to mootness only applies filed habeas actions in federal court
where a “personal liberty interest is at before they have fully exhausted their
stake.” Matter of Kulp Foundry, Inc., state remedies . . . the federal action
691 F.2d 1125, 1129 (3d Cir. 1982) should be stayed” rather than dismissed
(holding that the exception does not as premature. Merritt v. Blaine, 326 F.3d
apply to OSHA inspection cases). There 157, 170 n.10 (3d Cir. 2003) (compiling
can be no question, however, that a cases).
personal liberty interest is at stake in the
6
present case. See Matter of Establish In the event that the district court is
Inspection of Metal Bank of America, inclined to dismiss any of Lee’s claims
Inc., 700 F.2d 910, 913 n.3 (3d Cir. on procedural grounds, we strongly urge
1983) (“[A] personal liberty interest such that, if possible, it also analyze and rule
as imprisonment must be at stake for the on the merits of those claims so that
Frumento exception to apply.”) Lee’s unfortunate experience in state
(emphasis added). court is not repeated here.