Opinion
CIVIL NO. 02-2077
March 25, 2004
MEMORANDUM
I. Introduction
Roy Stocker brings this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction on due process grounds. The facts of this case are extraordinary in that it is admitted by the Commonwealth of Pennsylvania that petitioner Roy Stocker is actually innocent. However, to date, the Commonwealth has failed to vacate his conviction and has not allowed him review in the state court system. Stocker, who is seventy-nine years old and has a serious medical condition, seeks immediate release from state custody. If released from state custody, he would be immediately transferred to federal custody on a detainer stemming from federal convictions and sentence arising from the same conduct underlying the state conviction.
In 1984, Stocker was a member of a methamphetamine drug operation. He was prosecuted in federal court for related drug offenses, including, conspiracy to distribute, distribution, and participating in a continuing criminal enterprise. While he could have been prosecuted under state law for similar drug law offenses, the Commonwealth elected to charge and try him under its Pennsylvania Corrupt Organizations Act ("PACOA"). Stocker was convicted of the PACOA charges and subsequently of the federal drug charges.
Stocker has demonstrated that he is actually innocent of the PACOA charges. He points to an unambiguous decision from the Pennsylvania Supreme Court, which followed his conviction by nine years. See Commonwealth v. Shaffer, 734 A.2d 840 (Pa. 1999). It declared that drug activity was ineligible for prosecution under the PACOA. In light of that decision, the Commonwealth concedes that petitioner's conduct did not, as a matter of law, satisfy the elements of the crime for which he is incarcerated in the state. The lower Pennsylvania courts have denied relief solely on procedural grounds. The Pennsylvania Supreme Court has for over three years failed to act on petitioner's pending request for allowance of review. Now, having examined the record before this court, the parties' briefs, and their oral arguments, for the reasons that follow, this court grants Stocker's petition and orders that he be released from state custody and for his person to be turned over immediately to the United States Marshal for delivery to the Federal Bureau of Prisons.
II. Procedural History
On June 22, 1990, following a jury trial before the Honorable Edward G. Beister, Jr. of the Bucks County Court of Common Pleas, petitioner was convicted of three first degree felony counts of corrupt organizations in violation of 18 Pa. C.S.A. § 911, the Pennsylvania Corrupt Organizations Act ("PACOA"). Judge Beister denied all post-verdict motions and, on December 13, 1991, sentenced petitioner to two consecutive ten to twenty year imprisonment sentences.
Petitioner timely filed an appeal to the Pennsylvania Superior Court, and his conviction was affirmed on March 11, 1993. Petitioner did not seek allowance of appeal to the Pennsylvania Supreme Court. On May 13, 1993, petitioner filed a pro se petition for collateral relief pursuant to the Pennsylvania Post Conviction Hearing ("PHRA"), 42 Pa. C.S.A. § 9541, et seq. (repealed and replaced by the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq.), alleging ineffective assistance of counsel. However, on December 4, 1995, petitioner withdrew this petition before any ruling was made. (See Pet.'s Ex. D, Commonwealth v. Stocker, No. 89-6707, mem. op. at 3 (Ct. Com. Pl. Bucks Cty. Mar. 9, 1998.)) On September 6, 1996, petitioner filed a pro se Petition for Allowance of Appeal Nunc Pro Tunc in the Supreme Court of Pennsylvania. (Id.) The Supreme Court denied the petition on November 14, 1996. (Id.)
On December 2, 1996, petitioner filed a habeas corpus petition in this court claiming: (1) "[t]he unconstitutional use of immunized testimony by state officials"; (2) "[t]he unconstitutional disclosure of immunized testimony by state officials"; (3) "[t]he withholding of exculpatory evidence by both the prosecution and defense counsel"; and (4) "[t]he denial of effective assistance of counsel." See Stocker v. Vaughn, No. 96-7985 ("Stocker I"), Report and Recommendation (Docket #10) at 4. On July 8, 1997, this court denied and dismissed the petition because petitioner had failed to exhaust his claims in state court. See Stocker I. Report and Recommendation at 4.
Petitioner filed a second PCRA petition on August 11, 1997, alleging, in light of the then recent Pennsylvania Supreme Court decision interpreting the law under which he was convicted, that his actions were never punishable under the PACOA. See Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996). The trial court dismissed the petition as untimely (Pet.'s Ex. D), and the Pennsylvania Superior Court affirmed this dismissal on December 28, 1998. (Pet.'s Ex. C.)
On March 29, 1999, pursuant to 28 U.S.C. § 2241 and § 2243, petitioner filed a second Petition for Writ of Habeas Corpus in this court. On May 6, 1999, he transferred his claims onto proper forms. See Stocker v. Warden, SCI-Graterford, No. 99-1601 ("Stocker II"), Report and Recommendation (Docket #10). Petitioner then made two claims: (1) "[p]rosecution failed to charge and thereafter failed to establish that the drug enterprise was connected to a legitimate business as required to support conviction for violation of Corrupt Organizations Act;" and (2) ineffective assistance of counsel. See Stocker II, Report and Recommendation (Docket #10) at 3. On September 8, 1999, petitioner filed a third PCRA petition in Pennsylvania state court alleging the very same issues. Due to these pending state proceedings, this court dismissed Stocker II "without prejudice to [petitioner's] right to refile at the conclusion of the state court proceedings." Stocker II, Order of June 29, 2000 (Docket #11).
Petitioner's third PCRA petition sought relief from the state court's prior finding of procedural default and waiver of his right to collateral review. After analysis of state law and legislative amendments, the Bucks County Court of Common Pleas, found that petitioner was improperly convicted. The trial court determined that he was ineligible for PCRA relief because he had not timely filed his petition. However, it found that petitioner was entitled to state habeas corpus relief and his substantive due process rights had been violated because he was actually innocent of the crimes charged. (Pet.'s Ex. B, Commonwealth v. Stocker, No. 89-6707, mem. op. at 9-10 (Ct. Com. Pleas Bucks Cty. Feb. 18, 2000)). Petitioner was discharged from state custody on February 18, 2000. The Commonwealth appealed to the Pennsylvania Superior Court, challenging the trial court's authority to discharge a prisoner through a writ of habeas corpus.
On December 29, 2000, the Superior Court held that the trial court had improperly utilized habeas corpus relief because "the PCRA could [have] conceivably provide[d] him a remedy." (Pet.'s Ex. A, Commonwealth v. Stocker, No. 899 EDA 2000, at 7 (Pa.Super.Ct. Feb. 18, 2000)). It determined that petitioner's September 8, 1999 filing was time-barred and ineligible for any PCRA exception. (Id. at 9-10.) Accordingly, the Superior Court vacated the February 18, 2000 discharge order and remanded the matter to the trial court with directions to recommit petitioner to serve the remainder of his sentence. (Id. at 10.) The Superior Court did not disagree with the Court of Common Pleas' finding that Stocker was actually innocent.
On January 12, 2001, petitioner timely sought Allowance of Appeal in the Supreme Court of Pennsylvania. On October 22, 2001, the Pennsylvania Supreme Court expressly "reserved" deciding whether to grant allocatur, pending the decision in Commonwealth v. Cruz, 30 EAP 2001. (Mem. of Law in Supp. of Pet. at 8.) Cruz's petition for allowance of appeal was granted on July 27, 2001. Commonwealth v. Cruz, 782 A.2d 542 (Pa. 2001) (table op.). As of December 16, 2003, no decision regarding petitioner's appeal had been issued, (see Oral Argument Tr. 12/16/03), and as of today the court has not been advised that the state of the record has changed.
On April 12, 2002, petitioner filed the present petition for writ of habeas corpus ("Stocker III"), asserting that his "conviction was obtained and sentence was imposed in violation of Fifth, Eighth, and Fourteenth Amendments to the United States Constitution." In it, he correctly points out that his illicit drug activities did not qualify as "illegal conduct" under the PACOA. (Pet. for Writ of Habeas Corpus at 5.)
The Commonwealth argues that this habeas petition should be denied and dismissed for failure to exhaust state remedies. Petitioner counters that, pursuant to Pennsylvania Rule No. 218 of Judicial Administration, adopted May 9, 2000, he was not required to appeal the Superior Court decision to the Pennsylvania Supreme Court to satisfy exhaustion requirements. See In re Exhaustion of State Remedies of Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) ("Order No. 218").
III. Timeliness of the Federal Petition
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996. This law governs the limitations for filing habeas corpus motions, and provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). Because petitioner's conviction became final before AEDPA was applicable, Stocker had one year from the date of AEDPA's enactment to file timely for habeas corpus relief. If, prior to the expiration of the full year, one seeks collateral relief, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
For this court to be able to review petitioner's claims on the merits, he must have filed within one year of AEDPA's enactment April 24, 1996, tolling any time when his application was pending before a court. However, under the recent third circuit decision, Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003), if the state court has declared that a petition for collateral relief is time-barred, the federal petition cannot be considered "properly filed" and, thus, cannot toll AEDPA's statute of limitations.
At the time of petitioner's initial filing, Merritt v. Blaine, had not been decided by the third circuit. On March 13, 2003, this court issued an order that concluded that Stocker had timely filed his federal habeas petition. However, the Merritt decision, entered on April 16, 2003, altered the determination of when state court petitions are "properly filed" and thereby result in tolling under AEDPA. Accordingly, sua sponte this court reconsidered its previous order to conform it to Merritt's directive.
During the year after AEDPA was enacted, petitioner continually sought review of his claims. He filed a Petition for Allowance of Appeal Nunc Pro Tunc in the Pennsylvania Supreme Court on September 6, 1996. This was denied as untimely on November 14, 1996. On December 2, 1996, two weeks after this denial, petitioner filed Stocker I in this court. On July 8, 1997, that petition was dismissed without prejudice for failure to exhaust. On August 11, 1997, shortly after the AEDPA deadline, petitioner filed a second PCRA petition. It was dismissed as time barred. UnderMerritt, and related caselaw, none of these efforts was sufficient to toll the statute of limitations. Accordingly, petitioner's time to file under AEDPA expired on April 23, 1997, and he is barred from seeking federal habeas relief in this court as of right.
Petitions for Writ of Habeas Corpus that are found to be unexhausted and dismissed without prejudice do not toll AEDPA's statute of limitations. Duncan v. Walker, 533 U.S. 167 (2001).
The court now must consider if there exists an exception to AEDPA's statute of limitations, which would require this court to consider his claims on the merits.
A. AEDPA's Statute of Limitations
One of the most significant changes that AEDPA enacted was the addition of a statute of limitations for filing a federal habeas claim. For a petition to be timely, it must be filed within one year of one of the trigger events listed in § 2244(d). Previously, no strict time limitations had applied to federal habeas. The only restriction upon an initial filing was the common law doctrine of laches, which prevented claims from being raised only if a petitioner's delay was unreasonable and prejudiced the state in its ability to respond. See Rules Governing § 2254 Cases, Rule 9(a). AEDPA does not explicitly include an exception to the time limitation for proven, manifest injustice. A plain reading of AEDPA would suggest that a petitioner, declared innocent by the state as a matter of law but maintained in custody, is meant to have no opportunity for redress in the federal courts if his petition is untimely. In circumstances such as petitioner's, such a result would be so contrary to logic that this court finds that an exception for manifest injustice is necessarily implied.
Petitioner was convicted under the PACOA in 1990. In 1996, the Pennsylvania Supreme Court interpreted the PACOA for the first time and declared that, as written, it applied only to individuals who participated in operations that were engaged in both legitimate and illegitimate businesses. Commonwealth v. Besch. 674 A.2d 655 ( Pa. 1996). Petitioner's methamphetamine drug operation was wholly illegal and, thus, did not satisfy an essential element of the statutory offense. The Pennsylvania Supreme Court later determined that this interpretation was meant to apply to all cases decided prior to the Pennsylvania Legislature's subsequent 1996 amendment to the law. Commonwealth v. Shaffer, 734 A.2d 840 ( Pa. 1999). Therefore, it is clear that petitioner's conduct did not satisfy the elements of a PACOA crime, making him actually innocent. Even with the acknowledgment of his innocence, Pennsylvania courts have denied relief, stating that petitioner is out of time to seek review despite the fact that there was no possible opportunity for petitioner to "timely file" for relief following the Pennsylvania Supreme Court's declaration of the statute. Stocker was technically time-barred from raising the claim before the highest court rendered its decision that was made applicable to him. In a similar case, the United States Supreme Court directed Pennsylvania courts to release a prisoner because his incarceration was a clear violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Fiore v. White, 531 U.S. 225 (2001) (per curiam).
In Fiore v. White, a Pennsylvania prisoner had been declared innocent by a post-conviction decision by the Pennsylvania Supreme Court interpreting the statute under which Fiore was convicted. 531 U.S. 225, 226 (2001). The Supreme Court ordered the Pennsylvania courts to release Fiore immediately, declaring his continued incarceration unconstitutional. Id. at 228-29. A more detailed analysis of Fiore is included in Section IV, infra.
In those situations, hopefully rare, where a state's own actions cause an injustice, fundamental notions of justice and fairness are thwarted, absent an exception to the statute of limitations. Indeed, when the highest court of a state has declared an individual to have been prosecuted unlawfully, it necessarily finds that an actually innocent prisoner is being held solely due to a prosecutor's misapplication of the law. Upon such a declaration, the state officials should actively cause the release of such individual, wrongly prosecuted, wrongly convicted, and wrongly incarcerated. The absence of an exception in AEDPA's statute of limitations for conceded, continuing state injustice cannot rationally be explained. When enacting AEDPA, Congress would have assumed that a state would not intentionally commit or perpetrate an injustice and that a state admitting error would take immediate steps to effectuate release of a prisoner wrongly incarcerated.
B. Congress' Intent
To accept a plain wording argument excluding any exception for manifest injustice would be to argue that Congress intentionally sought to exclude federal review for a state inmate known to be innocent, who suffers from a clear due process violation by the state, and who had diligently pursued judicial remedies. A plain reading approach produces an absurd result. Nothing in AEDPA's legislative history suggests that Congress desired to ignore the continued incarceration of actually innocent persons acknowledged as such by the state. It has been termed the "golden rule" of statutory interpretation that when the plain language of a statute produces an absurdity or an inconvenience so great as to convince the court that the intention could not have been as the plain text reads, the court is justified in applying the meaning which it believes was intended. See River Wear Comm'rs v. Adamson, 2 App. Cas. 743, 764 (House of Lords 1877); accord Rector. Holy Trinity Church v. United States, 143 U.S. 457 (1892) (finding it is a "familiar rule" that a court should consider the legislators' intent when "a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results that would follow from giving such [plain] meaning to the words, makes it unreasonable to believe that the legislator intended [the result].").
Congress' intent in enacting AEDPA was to reduce delay and increase the finality of state court judgments. See Federal Habeas Corpus Reform: Eliminating Prisoners' Abuse of the Judicial Process, Hearing on S. 623 before the S. Comm. on the Judiciary, 104th Cong. 3 (1996) (remarks of Sen. Hatch, Chairman, S. Comm on the Judiciary) (stating that the goal of the habeas reform bill was to "eliminate unnecessary delay," "maintain . . . the finality of the decisions of our State courts," and "get some effective resolution of the . . . lengthy, frivolous appeal problems."). In so doing, Congress neither intended to permit the continued incarceration of innocent individuals, nor to prohibit a diligent petitioner from having recourse for clear constitutional violations.
AEDPA's legislative history details Congress' efforts to preserve review where a petitioner could show innocence. Chairman of the Senate Committee on the Judiciary, Sen. Orrin Hatch, stated: "I firmly believe that the writ is necessary to ensure that innocent people are protected from illegal imprisonment." Federal Habeas Corpus Reform: Eliminating Prisoners' Abuse of the Judicial Process: Hearing on S. 623 Before the S. Comm. on the Judiciary. 104th Cong. 3 (1996); see also Tighter Rules Were Needed, USA Today, Jan 30, 2000, at 16A (quoting Sen. Orrin Hatch: "Congress' reforms carefully preserve the most important function of habeas corpus, to guarantee that innocent persons will not be illegally imprisoned or executed, and explicitly permit repeated petitions that clearly and convincingly present new evidence of innocence."). Further, the drafters of AEDPA did not intend for the statute of limitations to preclude diligent individuals seeking review. They saw the need for "petitioners to have one fair opportunity to present their Federal claims to the Federal courts . . ." H.R. Rep. No. 103-470, at 1 (1994).
Congress specifically intended to allow review for innocent individuals who had diligently pursued relief. Such intention is revealed by AEDPA's codification of the manifest injustice standard in various portions of its text. Congress made exceptions to various limiting provisions, including those for successive petitions and federal evidentiary hearings, to allow review avenues through which petitioners could adequately demonstrate innocence. See 28 U.S.C. § 2244(b)(2)(B) (overcoming successive petition bar if a petitioner can show due diligence and "the facts . . . establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the appellant guilty of the underlying offense"); 28 U.S.C. § 2254(e)(2)(B) (permitting evidentiary hearing if "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the appellant guilty of the underlying offense"). These provisions confirm Congress' intent to permit review where a manifest injustice resulted, particularly when such was not due to any lack of diligence of the part of a petitioner. Reading AEDPA as a whole, Congress intended to allow access to federal courts for an individual in petitioner's circumstances, where a state has declared him innocent but refuses to allow review or relief.
Not all of these doctrines specifically follow the miscarriage of justice standard. However, while the levels of required proof may vary, each instance allows an exception to a procedural bar when an appropriate showing of innocence can be demonstrated.
The failure to include such a situation in AEDPA's language simply could be because Congress did not believe that such language would be required to preserve the rights of innocent individuals. Indeed, it should be no surprise that a case such as petitioner's, where the state court has declared him innocent but refuses to hear his case or free him, was not contemplated by Congress. Further, allowing review in the rare case where an individual can rely upon a subsequent state court ruling to make a showing of innocence does not affect AEDPA's stated goals of reducing delay and increasing finality of state court judgments. H. Conf. Rep. No. 104-518, at 111 (1996) (AEDPA "incorporates reforms . . . to address the acute problems of unnecessary delay and abuse in capital cases"). This situation will impact few petitioners and, thus, will cause little disruption to efficiency and finality in habeas proceedings.
There is no discussion of innocence based on a subsequent state legal interpretation in the Congressional Record surrounding AEDPA and its passage.
Under these circumstances, considering Congress' intent in interpreting AEDPA is proper. "[F]ederal habeas corpus has evolved as the product of both judicial doctrine and statutory law. . . . [E]quitable considerations may make it appropriate for federal courts to fill in a perceived omission on the part of Congress." Duncan v. Walker, 533 U.S. 167, 183 (2001) (Stevens, J., concurring in part and concurring in the judgment, joined by Souter, J.). The Supreme Court has historically stressed the need to have habeas relief governed by equitable principles, stating "[t]he very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris v. Nelson. 394 U.S. 286, 291 (1969), and that formalities "yield to the imperative of correcting . . . fundamentally unjust incarceration." Engle v. Isaac, 456 U.S. 107, 135 (1982).
Further, unless there is judicial consideration of Congress's intent, AEDPA's statute of limitations would raise serious constitutional issues. Such constitutional concerns result where a diligent petitioner has no opportunity to receive a full and fair hearing on constitutional violations resulting in incarceration. By its very terms, the essence of the due process clause is to require states to provide persons with due process, meaning a full and fair opportunity to litigate the matter. If a state fails to provide such, federal habeas must be available as a means to safeguard constitutional protections. Because a plain reading of AEDPA's statute of limitations would prevent review in instances where it is constitutionally required, this court must consider if there is another fairly possible meaning to cure this defect.
In so doing, this court complies with the Supreme Court's interpretation of AEDPA in Immigration and Natualization Service v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr. the Court addressed a circumstance where AEDPA did not specifically grant jurisdiction to review petitioner's case. In interpreting the statute, the Court relied heavily on the canon of statutory interpretation that "if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is `fairly possible,' we are obligated to construe the statute to avoid such problems." Id., 533 U.S. at 299-300 (internal citations omitted); see also Hooper v. People of State of California, 155 U.S. 648, 657 (1895) ("The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality.").
If, indeed, AEDPA were the sole source of Congressional authority for this court's jurisdiction under all unusual circumstances, the glaring omission presented by the facts of this case would raise the following fundamental questions concerning the constitutionality of AEDPA as written: "Does the Constitution require that an exception to the statute of limitations exist where the highest court of a state has declared an individual to be innocent, but the state refuses to enforce its own law and continues to incarcerate the individual?"; "Does the Constitution protect federal review of state court proceedings, such that review cannot be eliminated by Congress entirely?" C. The Suspension Clause
Habeas corpus is provided in the Constitution by the Suspension Clause, which states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety shall require it." U.S. Const. Art. I, § 9, cl. 2. The "Great Writ" has oft been touted as essential to the provision of justice. In 17th Century England, it was explained that the Writ assured that "[n]o freeman shall be imprisoned without due process of the law." Darnell's (the Five Knights') Case, 3 St. Trials 1 (K.B. 1627) (argument of counsel) (quoted in Hertz Liebman, Federal Habeas Corpus Practice and Procedure, § 2.3 n. 2). Such a view persisted at the time drafting of the Constitution. Alexander Hamilton urged in The Federalist that habeas corpus protected against "arbitrary methods of prosecuting pretended offenses, and arbitrary punishment upon arbitrary convictions."The Federalist No. 83, at 615 (A. Hamilton) (John C. Hamilton ed. 1873). The Supreme Court has described habeas corpus as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action," Harris v. Nelson, 394 U.S. 286, 290-91 (1969), that is designed "to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action." Reed v. Ross, 468 U.S. 1, 10 (1984) (internal citation omitted).
Despite such lofty language, the Supreme Court has avoided defining the exact parameters of the Suspension Clause. The Court has not determined whether the Suspension Clause protects federal habeas corpus as it was in 1789 or as it exists today. Compare Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 300-01 (2001), with Felker v. Turpin, 518 U.S. 651, 663-64 (1996). The Court has rejected arguments that habeas corpus can be completely eliminated, finding that "at absolute minimum the Suspension Clause protects the writ as it existed in 1789." St. Cyr, 533 U.S. at 300-01. Further, the Court has indicated that the Suspension Clause protects the Writ as it evolves. In Felker, the Court ruled on the constitutionality of a clause on the assumption that the "Suspension Clause refers to the writ as it exists today, rather than as it existed in 1789." 518 U.S. at 664. However, Supreme Court precedent does not illuminate the specific reach of the Supremacy Clause. Yet, it does show that there is some core function of review below which the scope of federal habeas may not be reduced.
D. History of the Writ
Much discussion has surrounded the purpose and scope of the Suspension Clause. Scholars have poured over historical information but have yet to definitively agree on the Framers' purpose in drafting the Suspension Clause. See Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas for State Prisoners?, 92 Mich. L.Rev. 862, 873 (1994). It is disputed whether at the time of enactment, the Writ was limited to questions of jurisdiction and inquiries into extrajudicial detention, or if issues of constitutionality and process were reviewable. Id. at 873-74. Regardless, the Judiciary Act of 1789 exclusively permitted review for federal prisoners. Therefore, there is no support for an argument that the Suspension Clause was originally intended to mandate federal review of state convictions. Rosa v. Senkowski, 97-2468, 1997 WL 436484, *5 (S.D.N.Y. Aug. 1, 1997).
Following the Civil War, Congress sought to broaden the ability of the federal courts to review the laws and judicial processes of the states. Congress expanded the list of claims cognizable on writ of error review, made removal to federal court available for all persons seeking to enforce various civil rights, and greatly enlarged the availability and scope of federal habeas review. See Civil Rights Act of 1866, ch. 31 §§ 1, 3, 14 Stat. 27 (removal rights); Act of Feb. 5, 1867, ch. 28 § 1, 14 Stat. 385 (federal habeas review); id § 2, 14 Stat. 386-87 (writ of error review). The Reconstruction Congress also placed limitations on the states, and enacted the Fourteenth Amendment, to guarantee that "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Am. XIV.
It is well-established that the Fourteenth Amendment Due Process clause significantly altered the restrictions and oversight placed upon the states. See generally Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992). Many limitations that had previously only been applied against the federal government were "held to be embraced within the Fourteenth" and, thus, to place prohibitions upon the states. United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938). In order for state process to be adequate, various protections afforded by the Constitution and the Bill of Rights were incorporated against each state. See, e.g. Duncan v. Louisiana, 391 U.S. 145 (1968) (right to a criminal trial); Miranda v. Arizona, 384 U.S. 436 (1966) (privilege against compelled self-incrimination and right to counsel); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (right to freedom of speech and press); School Dist. of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963) (non-establishment of religion); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion of evidence obtained by unreasonable searches and seizures).
Heightened review of the state laws and judicial processes was a necessary component of these increased restrictions. Put succinctly by the third circuit, "The battle against federal interference with some of these state processes was lost when the Fourteenth Amendment was adopted. The Amendment, as every high school [student] knows, forbids states to deprive a person of life, liberty or property without due process of law. That necessarily confers federal power to prevent states from doing the forbidden thing." United States ex rel. Elliot v. Hendricks , 213 F.2d 922, 928 (3d Cir. 1954).
Central to American jurisprudence is the concept that the violation of any right has a remedy in law. When a state is alleged to have violated a protected right, it is necessary for some remedy to be available. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162-63 (1803) ("The very essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury.")
The Fourteenth Amendment's command that no "State [shall] deprive any person of life, liberty, or property, without due process of the law," presupposes that the federal courts will be available to order redress for state infringement of a protected right.
While the state itself may provide a remedy for constitutional violations, some oversight by the federal judiciary is necessary to ensure accurate application of federal law. Even as the state judiciaries are an essential venue for the enforcement of federal law, it has always been understood that federal courts hold final dominion in the interpretation of federal laws. The necessity of such federal review is acknowledged in Justice Story's famous Martin v. Hunter's Lessee opinion:
[A]dmitting that the judges of the state courts are, and always will be, as of much learning, integrity, and wisdom, as those of the courts of the United States (which we cheerfully admit) does not aid in the argument [that they cannot be reviewed]. . . . The Constitution has presumed (whether rightly or wrongly we do not inquire) that the state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, control, or be presumed to obstruct or control, the regular administration of justice.14 U.S. (1 Wheat) 304, 346-47 (1816).
Indeed, the drafters of the Fourteenth Amendment were keenly focused on the need for federal oversight. When the Reconstruction Congress convened in 1865, many Southern governments were beginning to reconstruct systems of slavery de facto through the passage of Black Codes. See Amar, 101 Yale L. J. at 1217; William E. Nelson, The Fourteenth Amendment 40-45 (1988). The Codes enabled systemic abridgment of core rights and freedoms that were protectable under the Constitution, and were applied against blacks, whites who were sympathetic to blacks, and those loyal to the Union cause. Amar, 101 Yale L. J. at 1217. Much of the legislative history surrounding the Fourteenth Amendment details the drafters' desire to protect citizens in the South and to ensure equal rights and application of the law. See generally 39th Cong., 1st Sess, S. Exec. Doc. No. 2 (1865) (Report of Maj. Gen. Carl Schurz on Condition of the South) (detailing need to protect white Unionists in the South); William E. Nelson, The Fourteenth Amendment 40-43 (1988).
Even as the Reconstruction Congress believed the Writ was protected by the Fourteenth Amendment, it sought to expand federal habeas review as much as possible. The Judiciary Act of 1867 extended federal habeas review to "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Judiciary Act, ch. 28, § 1, 14 Stat. 385, 385 (1867). Providing expansive federal habeas protection was of central concern to the framers of the Fourteenth Amendment. See Amar, 101 Yale L. J. at 1228 n. 161 (citing Congressional Record). Representative Lawrence, who introduced the habeas bill to the House, stated that "[i]t is a bill of the largest liberty, and does not . . . restrain the writ of habeas corpus at all." Cong. Globe, 39th Cong., 1st Sess. 4151 (1866). Such protection was requisite to protection of federal claims, as many southern states had already displayed their willingness to withhold and manipulate habeas in order to suppress blacks and continue slavery. See Amar, 101 Yale L. J. at 1228. Commentators concur that the purpose of such an expansion of the federal judiciary's power "was plainly intended to help safeguard the new . . . constitutional rights created after the Civil War." Louis H. Pollak, Proposals to Curtail Federal Habeas Corpus for State Prisoners, 66 Yale L. J. 50, 52 n. 9 (1956); see also Jordan Steiker, Incorporating the Suspension Clause: Is there a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich. L Rev. 862, 880 (1994); Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441, 445-466(1963).
The legislative history of the Reconstruction Congress reveals the drafters' understanding that the Fourteenth Amendment protection of "privileges and immunities of citizens of the United States" included the privilege of habeas corpus. The sentiment of the time was that habeas corpus was a settled "privilege of the citizens of the United States." Amar, 101 Yale L. J at 1221. English common law, the source then relied upon for defining "privileges" and "immunities," relied upon the Habeas Corpus Act as one of its fundamental foundations, a privilege that was essential to ensure liberty. Id. During the drafting of Section One of the Fourteenth Amendment, Jacob Howard, the Head of the Senate Committee on Reconstruction, detailed those rights that the Amendment would protect. Cong. Globe, 39th Cong. 1st Sess., 2765-66 (1866). He extensively discussed a 1823 decision by Justice Washington, Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823) (No. 3230), that created a non-exhaustive list of such rights, specifically identifying "the benefit of the writ of habeas corpus" as one of the essential "privileges and immunities." Many of the rights cited by Justice Washington have since been found to be incorporated by the Fourteenth Amendment.
The assumption that habeas was a protected privilege of citizens is further reflected in a Supreme Court ruling that attempted to enumerate the fundamental guarantees protected by the Fourteenth Amendment. The Justices of the Supreme Court in the Slaughter-House Cases, explicitly included "the privilege of habeas corpus" in its list of rights protected from state infringement. 83 U.S. 36, 79 (1873).
Accordingly, a specific provision protecting habeas corpus was not explicitly included in the Constitutional amendments; the drafters believed that they had already protected the Writ in enacting the Fourteenth Amendment.
Some may argue that federal habeas review is not required because an individual can seek relief from the federal courts through writ of error review to the Supreme Court. However, it is apparent that such review, which is granted only in a small percentage of the cases that apply, is an inadequate protection for constitutional rights. In view of the grave risks involved in criminal trials-the loss of liberty and life-only guaranteeing the right to direct review would protect an individual's rights. This court is persuaded that, through the enactment of the Judiciary Act of 1867 and the Fourteenth Amendment, Congress intended to incorporate federal habeas review for all prisoners-state and federal.
E. Suspension Clause Guarantees
Despite the above conclusion that federal habeas review for state and federal prisoners alike is protected by the Suspension Clause, it is necessary that the scope of claims cognizable under the Writ be addressed. Much debate has ensued between commentators and historians concerning this topic. See generally Randy Hertz James S. Liebman,Federal Habeas Corpus Practice and Procedure, § 2.4c-d. One theory asserts that habeas review was only available to test the jurisdiction of a court of conviction. Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441 (1963). Later scholars have contested this view, stating that federal habeas encompassed much broader challenges, permitting review of constitutional violations generally. See Gary Peller, In Defense of Habeas Corpus Relitigation, 16 Harv. C.R.-C.L. L.Rev. 579 (1982); Hertz Liebman, § 2.4d.
The court is not persuaded that habeas merely allows review into the jurisdiction of the state court. Chief Justice John Marshall's pronouncement that habeas provided a venue to "in the nature of a writ of error, to examine the legality of the commitment," indicates a broad scope of issues were cognizable on habeas. Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202-03 (1830). Indeed, for habeas to function as an equitable remedy, a reviewing court must be able to address blatant violations of due process. This understanding is supported by a review of the early issues heard by the Supreme Court, which included claims arising under the Fourth Amendment, Ex parte Milburn, 34 U.S. (9 Pet.) 704, 705 (1835); Ex parte Buford, 7 U.S. (3 Cranch) 448 (1806), the Sixth Amendment, United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and the Fifth Amendment, Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873).
Further, in enacting the Fourteenth Amendment, the drafters understood habeas to allow for more than simply a review of the jurisdiction of a court. Were that all that habeas review permitted, violations of the state-courts with proper jurisdiction, but acting unconstitutionally-could not have been redressed. For federal habeas to be able to protect constitutional rights, particularly at a time where states' biases were apparent, review in the federal system required some ability to examine the process by which the state court reached its determination. Indeed, early decisions following the Judiciary Act of 1867 permitted claims addressing constitutional claims. See Frank v. Mangum, 237 U.S. 309 (1915); Ex parte McCardle, 73 U.S. (6 Wall.) 318, 325-26 (1867) ("This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction.") At minimum, habeas review was available to overcome any corrupted state court process, including those: that relied upon an unconstitutional statute, issued from a court that lacked jurisdiction, imposed an illegal sentence, or were the product of patently unfair state procedures. See Hertz Liebman, § 2.4d; Ann Woolhandler, Demodeling Habeas, 45 Stan. L.Rev. 575, 586 (1993) (finding that both Peller and Bator concede that these issues were addressed in early habeas cases).
While history of the Writ does not elucidate the mandate of the Suspension Clause, it is axiomatic that the Writ's existence affords some amount of protection that cannot be eliminated without violating the Constitution. It is beyond the scope of the question brought before this court to attempt to define the precise boundaries set by the Suspension Clause. However, if there is any core purpose for habeas, it must allow federal court review for manifestly unjust circumstances such as those from which petitioner is suffering.
Here, petitioner is innocent and is only incarcerated as the direct result of a blatant due process violation by the Commonwealth. Although Pennsylvania is aware of this violation, it has denied Stacker any possible opportunity to raise his constitutional claim in the state courts. Should there not be access in the federal courts for such a manifest injustice, then the federal courts are impotent to protect and preserve this nation's most fundamental rights. In essence, an individual could suffer the most grievous wrong, a constitutional violation knowingly and deliberately imposed by the state, and yet would have no remedy available at law.
It is important to note that in petitioner's situation, in which he was time-barred from the moment when his claim became cognizable, never allowed him an opportunity to seek judicial relief. This circumstance places him in a fundamentally different posture than an individual who had an opportunity to timely file a petition, yet allowed that time to expire. In general, the statute of limitations on habeas claims has been upheld in the circuit courts because it still allows each petitioner an opportunity to seek review. See, e.g. Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1217(11th Cir. 2000); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000). However, Stocker's situation, where the statute of limitations precluded review entirely, due in no part to a lack of diligence, raises constitutional concerns.
Here, the court reads AEDPA's statute of limitations to contain an inherent exception in cases of manifest injustice. This exception is longstanding in habeas practice, see, e.g. Schlup v. Delo, 513 U.S. 298 (1995); Kuhlmann v. Wilson, 477 U.S. 436 (1986); Murray v. Carrier, 477 U.S. 478 (1986);Wainwright v. Sykes, 433 U.S. 72 (1977); Hill v. United States, 368 U.S. 424 (1962), accords with Congress' intent, and cures any failings of the initial reading. This court also considers Stocker's petition to be timely based upon the doctrine of equitable tolling.
IV. Equitable Tolling
Equitable tolling can be applied to a petitioner "when principles of equity would make the rigid application of a limitation period unfair."Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (internal citation omitted). While in Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003), the third circuit limited the areas where equitable tolling is possible, the court relied upon Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001), to indicate circumstances where equitable tolling is proper. Fahy enumerates three situations that can permit equitable relief: (1) where the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum. 240 F.3d at 244. If a plaintiff can allege one of these three situations, he may be eligible for equitable relief. Further, in order to obtain equitable relief a petitioner must demonstrate that he or she has exercised reasonable diligence in investigating and bringing the claims. Id.
Here, it is again necessary to examine the procedural history and substance of petitioner's claim in order to consider his claim that he merits equitable relief. Petitioner argues that his continued imprisonment violates due process because his actions did not qualify as "illegal conduct" under the PACOA in effect at the time of the trial. (Pet. for Writ of Habeas Corpus at 5.) Petitioner was convicted under the PACOA for engaging in a wholly illegal enterprise. Commonwealth v. Stocker, 622 A.2d 333, 337 (Pa.Super. 1993). Almost six years later, on April 17, 1996, the Pennsylvania Supreme Court held that prosecution under the PACOA was permissible only where a corrupt or illegal enterprise infiltrated a legitimate enterprise. See Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996). Petitioner's illegal enterprise lacked the requisite connection to a legitimate business. On June 19, 1996, two months after Besch was decided, the Pennsylvania legislature amended the PACOA to provide that wholly illegitimate business enterprises are subject to prosecution under the PACOA. See 18 Pa. C.S.A. § 91 l(h)(3). The Pennsylvania Supreme Court, on July 21, 1999, ruled that this new provision was not made retroactive by the Pennsylvania legislature, and thus, shall be construed as applicable only from the date when the amendment took effect. See Commonwealth v. Shaffer, 734 A.2d 840, 843 (Pa. 1999). Thus, the interpretation given under Besch that an enterprise must have been connected to a legitimate business to be punishable under the PACOA, governs all convictions running from the statute's enaction to the amendment on June 19, 1996. As petitioner was convicted on June 22, 1990, his wholly illegitimate enterprise was not subject to prosecution under the Pennsylvania Supreme Court's interpretation of the statute.
While Besch and Shaffer together make it clear that petitioner has been imprisoned for a crime where his actions did not satisfy all the statutory elements required for a finding of guilt, procedural hurdles have prevented him from obtaining review in the Pennsylvania courts. Based on the Shaffer decision, petitioner filed a PCRA petition challenging the validity of his detention on September 8, 1999. Petitioner's challenge was under § 9543(a)(2)(I), that his conviction resulted from:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.42 Pa.C.S.A. § 9543(a)(2)(i). However, petitioner's filing was not deemed to be timely because it had not been filed within a year after his judgment had become final, as required under § 9545(b) of the PCRA. The year requirement is applicable from petitioner's judgment, despite the fact that the interpretation definitively recognizing the illegality of petitioner's imprisonment was not issued until 1999.
Under the PCRA, there exist only three exceptions to a timely filing:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.42 Pa.C.S.A. § 9545(b)(i-iii). The Court of Common Pleas found that sections (i) and (ii) were inapplicable to petitioner's case. Further, it decided that section (iii) did not apply because "Shaffer did not create a newly recognized constitutional right, but instead, involved a judicial interpretation . . ." (Pet.'s Ex. B, Commonwealth v. Stocker, No. 89-6707, mem. op. at 7 (Ct. Comm. Pleas Bucks Cty. Feb. 18, 2000)). The Court of Common Pleas found that petitioner's PCRA application was time-barred, but found this result unacceptable because "[e]xtended confinement of one who could not have been convicted is intolerable in this Commonwealth which presumes to do justice." (Id. at 9.) Consequently, the trial court utilized habeas corpus to release petitioner, finding that his "situation [was] certainly in need of an extraordinary remedy." (Id.)
The Commonwealth appealed and on December 29, 2000, the Pennsylvania Superior Court reversed the trial court's decision and remanded for petitioner to be recommitted. (Pet.'s Ex. A, Commonwealth v. Stocker, No. 899 EDA 2000, at 10 (Pa.Super.Ct. Dec. 29, 2000)). The Superior Court's decision found that habeas corpus relief was not available, as "the PCRA provide[s] the sole means for obtaining collateral review and relief, encompassing all other common law rights and remedies including habeas corpus." (Id. at 6 (quoting Commonwealth v. Chester, 733 A.2d 1242, 1250-51 (Pa. 1999))). Despite this finding, the Superior Court agreed with the Court of Common Pleas that petitioner was time-barred from obtaining PCRA relief, and that he did not satisfy any of the enumerated exceptions to toll the filing period. (Id. at 9.) Therefore, the Superior Court found that if a petitioner has an actual innocence claim that does not qualify for an exception to the time bar, Pennsylvania law provides no method of obtaining relief. Following petitioner's denial of habeas corpus relief by the Pennsylvania Superior Court, he filed a petition, on January 12, 2001, timely seeking Allowance of Appeal in the Supreme Court of Pennsylvania.
Concurrent to the pendency of petitioner's claims in the Pennsylvania courts, the Supreme Court of the United States decided Fiore v. White, 531 U.S. 225 (2001), a case involving facts similar to petitioner's case. Fiore had been convicted of crime, but after his conviction became final the Pennsylvania Supreme Court interpreted the relevant law for the first time and made it clear that Fiore's conduct was not within the scope of the criminal statute. 531 U.S. at 226. Although this interpretation removed any illegality from Fiore's conduct, the Pennsylvania courts on collateral review refused to examine Fiore's case because it was time-barred and not subject to an exception. Id, at 227. Fiore applied for federal habeas. Eventually, the Supreme Court granted certiorari in his case. Id, Before making its determination, the Supreme Court presented a state-law question to the Pennsylvania Supreme Court, asking the scope of the interpretation of the applicable law. Id. at 226. In response, the Pennsylvania Supreme Court made it clear that its interpretation was meant to govern the law from its inception, and was not a new interpretation. Id. Relying on this answer, in a three-page per curium opinion, the Supreme Court found a clear violation of the Due Process Clause of the Fourteenth Amendment, which forbids a state to convict and incarcerate a person of a crime without proving the elements of that crime beyond a reasonable doubt.Id, at 228-29 (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970)). The third circuit was ordered to vacate its decision upholding Fiore's continued confinement and Fiore was released from prison in August 2001.
It is difficult to conceive of circumstances under which the rigid application of procedural requirements would be more unfair than those currently before the court. This case is highly unusual in that it is undisputed that petitioner is innocent of the crime for which he was convicted. However, the legal interpretation that established his innocence did not arise until nine years after his conviction, making it impossible for him to have earlier pursued such relief. Following the Pennsylvania Supreme Court's clarification, petitioner quickly and diligently pursued judicial relief. He subsequently filed for allowance of an appeal and submitted two state post-conviction petitions. In all instances, Pennsylvania found he was out of time and was ineligible for review. It is extremely troublesome that Pennsylvania has no available recourse when it is known, and indeed admitted by its own courts, that a prisoner is innocent and would not be in jail but for a constitutional violation. Further, the Commonwealth appears to have ignored the directives of Fiore. After unsuccessful attempts at review from the Pennsylvania courts, petitioner sought federal review. Federal review must now be made unavailable to avoid offending traditional notions of justice and fairness.
Equitable tolling is necessary and appropriate in this case because petitioner has been prevented from asserting his rights. Pennsylvania has allowed no forum for challenge of clear misapplication of its own law, and petitioner has reasonably and diligently asserted his claims. If the limitation period is not tolled in this case, Stocker will be denied all federal review of his due process claim and all courts would stand silent and suffer injustice created and perpetrated by the state itself. Actual innocence under these circumstances cannot be ignored. See, e.g. Schlup v. Delo, 513 U.S. 298 (1995); Kuhlmann v. Wilson, 477 U.S. 436 (1986);Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72 (1977); Hill v. United States, 368 U.S. 424 (1962). With such a grave consequence, this court finds that the extraordinary remedy of equitable tolling is appropriate and will consider Stocker's claims on the merits.
V. Exhaustion
A habeas petition should be dismissed if the claims contained within have not been fairly presented to the state's courts in a manner allowing those courts to review the merits of the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1). In his petition for a writ of habeas corpus, Stocker presents a claim for relief based upon a due process violation. The Commonwealth acknowledges that Stocker presented his claim to the state court. (See Resp.'s Mot. to Dismiss for Failure to Exhaust, Docket #4 at 1.) However, the Commonwealth contends that the claim has not been fully adjudicated in the state court because there is still a petition pending before the Pennsylvania Supreme Court. (Id. at 2.)
In the more than three years that Stocker's application has been pending, he has not received a decision from the Pennsylvania Supreme Court, even as to whether that Court is willing to hear his claims. In light of Fiore's directive that individuals cannot be held by the state if all elements of the crime for which they are incarcerated were not proven, the continued inaction by the Pennsylvania Supreme Court is extremely troublesome.
Generally, if a matter is pending before the state court, it is not considered to be exhausted. 28 U.S.C. § 2254(b)(1). The Supreme Court of the United States has found an exception to the exhaustion requirement, applicable when the state corrective process is so clearly deficient as to render fufile any effort to obtain relief. Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The third circuit has found that "inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable." Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986). When such delay renders the state process ineffective to protect the rights of petitioner, courts have excused the exhaustion requirement. Id. (excusing exhaustion requirement due to thirty-three month "inexcusable" delay by state courts); see also Moore v. Deputy Commissioner of SCI-Huntington, 946 F.2d 236, 242 (3d Cir. 1991) (excusing exhaustion requirement where petitioner's post-conviction petition had been pending for three years); United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir 1975) (finding that delay of forty months was adequate to excuse exhaustion, in dictum);United States ex rel. Senk v. Breirley, 471 F.2d 657, 660 (3d Cir. 1973) (excused exhaustion requirement for three and a half year delay by state); Johnson v. Love, No. 92-2001, 1993 WL 262607, *3 (E.D. Pa. July 9, 2003) (excused exhaustion requirement on claims that had been pending over three years in state court); Walker v. Vaughn, No. 92-1616, 1993 WL 12900, *l-2 (E.D. Pa. Jan. 15, 1993) (excused exhaustion on claims that had been pending three and a half years in state court).
Petitioner argues that, pursuant to Pennsylvania Rule No. 218 of Judicial Administration, adopted May 9, 2000, he need not have appealed the Superior Court decision to the state's highest court to satisfy exhaustion requirements. See In re Exhaustion of State Remedies of Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) ("Order No. 218"). Even should Rule No. 218 be adequate under AEDPA, petitioner voluntarily sought to file an appeal before the Pennsylvania Supreme Court and, thus, Pennsylvania Rule No. 218 is inapplicable to his situation. The Rule seeks to expedite review, not to allow a petitioner to have concurrent state and federal proceedings.
In this case, petitioner has waited for more than three years for a ruling on whether he will even be permitted to file an appeal. The concern surrounding this delay is aggravated by the fact that he is seventy-nine years old and suffers from Hepatitis C. (Pet.'s Exceptions to Rep. and Rec. at 6; Oral Arg. Tr. 12/16/03.) Federalism cannot shelter a state from knowingly and continuously preventing review for an individual suffering a continuous deprivation of liberty.
Where inordinate delay is found, the burden rests on respondents to demonstrate why further resort to the states should be required. Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004); Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987). Here, the Commonwealth has presented no justification for the delay. Counsel for the Commonwealth urges this court to cause petitioner to wait longer, based on the conjecture that the Pennsylvania Supreme Court may be considering altering the law with regard to cases like Stocker's. (See Oral Arg. Tr. 12/16/03.) However, the Commonwealth has no support for this contention, and indeed, cannot explain why, if this is the case, the Pennsylvania Supreme Court has refused to grant Stocker's allocatur request and allow him to brief the issues on the merits for that Court's review. This court cannot in good conscience require Stocker to wait longer based on the suggestion that the Pennsylvania Supreme Court may in futuro change the post-conviction processes to allow those petitioners who can prove claims of innocence to petition out of time. We are informed that there are other cases raising the same question in the Pennsylvania courts, which will allow the Pennsylvania Supreme Court to address this issue, should that be its reason for delay. Such conjecture is inadequate to satisfy the Commonwealth's burden of demonstrating why Stocker should be required to spend more time awaiting a decision from the Pennsylvania Supreme Court.
VI. Analysis
As previously detailed, the cases of the Pennsylvania Supreme Court make clear that Stocker's conduct was not reached by the PACOA at the time he was prosecuted and convicted. Under Supreme Court precedent his conviction and continued incarceration violate due process. Fiore v. White, 531 U.S. 225, 228-29 (2001); Jackson v. Virginia, 442 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970). Under the PACOA at the time of Stocker's trial, being involved in an operation that had both illegitimate and legitimate facets was a basic element of the crime of which Stocker was convicted. It is undisputed that the Commonwealth did not, and could not have, presented any evidence to satisfy that element. Rather, the Commonwealth concedes that Stocker's operation was wholly illegal. Consequently, Stocker's conviction fails to satisfy the due process requirements of the Constitution. See Fiore, 531 U.S. at 229.
Based upon this conclusion this court orders that Stocker's conviction and sentence be vacated and that he be released from state custody and transferred to federal custody immediately in accordance with the outstanding federal detainer.
An appropriate order follows.