Opinion
Civil Action No. 03-6911.
April 29, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution-Rockview, located in Bellafonte, Pennsylvania. For the reasons stated below, the court recommends that the petition be denied.
I. BACKGROUND
On August 14, 1996, a jury sitting in the Court of Common Pleas for Philadelphia County, convicted petitioner of robbery and criminal conspiracy (No. 1017, October Term 1994). On March 24, 1997, the court sentenced petitioner to an aggregate term of fifteen to thirty years imprisonment.
Petitioner appealed to the Superior Court of Pennsylvania and raised the following issues: (1) the trial court erred when it refused to declare a mistrial when a prosecution witness remarked that he was upset because his brother had been killed (in an incident unrelated to the charges against petitioner); (2) trial counsel was ineffective for seeking and obtaining a curative instruction for that remark, rather than a mistrial; and (3) the trial court erred in not sentencing the petitioner within the sixty (60) day trial frame as prescribed under Pa.R.Crim.P. 1405 (See Appellant's Brief attached to Petition). On June 2, 1998, the Superior Court affirmed the convictions. Commonwealth v. Prout, 723 A.2d 235 (Pa.Super.Ct. June 2, 1998) (Table). On July 23, 1998, the Pennsylvania Supreme Court denied petitioner's request for discretionary review.
On May 10, 1999, petitioner filed a pro se petition pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. The PCRA court dismissed the petition. Petitioner appealed to the Pennsylvania Superior Court and raised the following issues: (1) trial counsel failed to request a missing witness instruction when the Commonwealth failed to present the testimony of the victim; (2) trial counsel failed to subpoena the victim for trial; (3) appellate counsel failed to raise these issues on direct appeal; (4) appellate counsel failed to raise the issue of the trial court's error in denying petitioner's Rule 1100 Motion; (5) appellate counsel failed to argue the sufficiency of the evidence; (6) all counsel were ineffective in failing to raise and preserve the issue that Prout was denied his right of confrontation when hearsay evidence was admitted at trial, instead of the victim's testimony and (7) the PCRA court erred in adopting PCRA counsel's no-merit letter in lieu of conducting an independent review. Commonwealth v. Prout, No. 2029 EDA 2000, slip op. at 203 (Pa.Super.Ct. March 5, 2001). On March 5, 2001, the Superior Court vacated the dismissal and remanded the matter to the PCRA court for the filing of an opinion adequately addressing petitioner's issues. Commonwealth v. Prout, 777 A.2d 509 (Pa.Super. 2001) (Table).
On May 14, 2001, the PCRA court filed an opinion in accordance with the Superior Court's instructions and issued an order denying PCRA relief. Petitioner appealed. The Superior Court affirmed the dismissal in part, remanding to the PCRA court for consideration of petitioner's ineffectiveness claim based on the state "prompt trial" rule, which the PCRA court had failed to rule on.Commonwealth v. Prout, 814 A.2d 693 (Pa.Super. 2002).
On December 29, 2003, before the resolution of his PCRA action, petitioner filed the instant habeas corpus petition in this court, raising the following claims: (1) the state court system denied him due process by delaying the resolution of his PCRA action; (2) the trial court denied him due process by failing to declare a mistrial when a prosecution witness remarked that he was emotionally upset because his brother had been killed (in an incident unrelated to the charges against petitioner); (3) petitioner's federal and state rights to a speedy trial were violated and defense counsel was ineffective for failing to raise the same; (4) the prosecution denied him his confrontation rights by failing to call the victim as a witness; and (5) all prior counsel provided ineffective assistance of counsel. (Petition at ¶ 12).
On April 7, 2004, after petitioner filed this federal habeas petition, the PCRA court issued its opinion denying relief on the remanded ineffectiveness claim. Commonwealth v. Prout, October Term, 1994, No. 1017 (Jackson, J., Apr. 7, 2004). Petitioner had not yet filed an appeal.
On April 28, 2004, the Commonwealth filed a response to the petition, arguing that the petition should be dismissed because all of the claims raised have not been exhausted in the state courts.
II. DISCUSSION
It is well established that a prisoner must present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C.A. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 847 (1999); Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied, 504 U.S. 944 (1992). "The exhaustion rule also serves the secondary purpose of facilitating the creation of a complete factual record to aid the federal courts in their review." Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995).
It appears that petitioner has exhausted his state court remedies with respect to his second, fourth and fifth claims. His third claim — alleging that defense counsel was ineffective for failing to raise a speedy trial issue under state law — is still pending before the state courts. Petitioner has until May 7, 2004 to appeal to the Superior Court the PCRA court's rejection of this claim. Petitioner's first claim — asserting that the state court system denied him due process by delaying the resolution of his PCRA action — was not exhausted in the state courts, and in any event, is not cognizable in a federal habeas proceeding. It is well established that there is no federal due process right to a speedy state collateral appeal after direct review. Mason v. Meyers, 208 F.3d 414, 417 (3d Cir. 2000); Proudfoot v. Vaughn, 1997 WL 381590 at *5 (E.D. Pa. July 2, 1997).
Petitioner's fifth claim generally alleging ineffectiveness of all counsel is overlybroad and non specific. This last claim is exhausted only to the extent that petitioner raised the precise ineffective assistance claims in state court. To the extent petitioner now claims that counsel was ineffective in ways not raised in the state courts, this court cannot entertain those claims.
In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that "because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief, . . . a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. at 522. Here, petitioner has presented four cognizable claims, one of which is clearly unexhausted. Under Lundy, the court must dismiss the petition without prejudice for failure to exhaust state court remedies.
As noted by the Commonwealth, the statute of limitations for the filing of a federal habeas corpus petition has not expired. See 28 U.S.C. § 2244(d). According to the Commonwealth, petitioner has approximately 167 days of the habeas limitations period remaining (Response at 5 n. 2). This period is tolled until the completion of his appeals from the denial of PCRA relief. Id. Thus, this is not a situation where this court should stay a mixed habeas corpus petition because an "outright dismissal could jeopardize the timeliness of a collateral attack." Crews v. Horn, 360 F.3d 146, 154 (3d Cir. 2004).
Petitioner argues that the exhaustion requirement should be excused because of the delay in processing his PCRA petition. (Memo. of Law at 4). In rare instances, federal courts have dispensed with the exhaustion requirement because of inordinate delay on the part of the state. See Story v. Kindt, 26 F.3d 402, 405-06 (3d Cir.), cert. denied, 513 U.S. 1024 (1994) (delay of nine years to decide a PCRA petition). "There is no single, comprehensive test for inordinate delay." Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir. 1991). Instead, this court must decide, under the circumstances of each case, whether the delay rendered the state remedy ineffective to protect the rights of the petitioner. 28 U.S.C. § 2254(b)(1)(B)(ii); Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986).
Even when there has been excessive delay, the Third Circuit Court of Appeals has ruled that it is inappropriate to grant federal review when the case is "proceeding normally" in the state courts. Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987). Specifically, when a case has been dormant for an inordinate period of time but has resumed normal movement in the state system, it is appropriate to enforce the exhaustion requirement "to allow [the state court], in the first instance, to hear petitioner's claims." Id. See also Walker, 53 F.3d at 615 (federal court should "stay its hand" if, before it has embarked on proceedings of substance, there is reliable evidence that the state action has been reactivated).
This court is aware that our Court of Appeals has, on two occasions, excused the exhaustion requirement because of a three-year delay in deciding a PCRA petition. In Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986), the court held that a thirty-three month delay was sufficient to dispense with the exhaustion requirement. In United States ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir. 1973), the court held that a three and one-half year delay was sufficient to excuse the exhaustion requirement. However, in Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir.), cert. denied, 537 U.S. 897 (2002), the court ruled that a twenty-seven month delay in the PCRA process did not render that relief "effectively unavailable." The court noted that the thirty-three month delay in Wojtczak remained "the shortest delay held to render state collateral proceedings ineffective for purposes of the exhaustion requirement." Id. (citing Coss v. Lackawanna County Dist. Att'y, 204 F.3d 453, 460 (3d Cir. 2000) (en banc) (seven year delay), rev'd on other grounds, 532 U.S. 394 (2001); Story v. Kindt, 26 F.3d 402, 406 (3d Cir.), cert. denied, 513 U.S. 1024 (1994) (nine year delay)).
Although approximately five years has transpired since petitioner filed his PCRA petition, the PCRA rendered a decision on the last remaining claim just this month, on April 7, 2004. Petitioner has the right to file a timely appeal to the Pennsylvania Superior Court. Since the PCRA proceeding is now "proceeding normally" in the state courts, it would be inappropriate for this court to excuse the exhaustion requirement. Walker, 53 F.3d at 615.
Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this 29th day of April, 2004, it is respectfully recommended that the petition for a writ of habeas corpus be DISMISSED without prejudice for failure to exhaust state court remedies and that no certificate of appealability be granted.