Lee v. Stickman

• Court: Court of Appeals for the Third Circuit
• Decided: February 11, 2004
• Docket: 02-3497
• Status: Published

Opinion

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Lee v. Stickman Precedential or Non-Precedential: Precedential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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Recommended Citation "Lee v. Stickman" (2004). 2004 Decisions. Paper 959. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/959

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.