Stanton T. Story v. Warden Tom Kindt Attorney General Preate

26 F.3d 402, 1994 U.S. App. LEXIS 12483, 1994 WL 221425

• Court: Court of Appeals for the Third Circuit
• Decided: May 27, 1994
• Docket: 92-3586
• Status: Published

Opinions

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Stanton T. Story from an order of the United States District Court for the Western District of Pennsylvania denying his petition for a writ of habeas corpus on the ground that he had failed to exhaust available state court remedies. Story contends that we must excuse the ■ exhaustion requirement because the nine-year delay in his post-conviction collateral proceedings in the Court of Common Pleas of Allegheny County was inordinate. We agree. We therefore reverse the order of the district court and remand the case for consideration of Story’s habeas petition on the merits. In doing so we note that it seems likely that Story would not have suffered this delay had the Court of Common Pleas maintained a central docket sheet for each criminal case rather than a system which merely lists entries in the order of their filing. This method makes it difficult to determine whether or when a particular order was filed, and we urge that the Court remedy the deficiency so as to avoid similar delays in the future.

I. PROCEDURAL HISTORY

A. The Underlying Conviction

In October 1979, Story was convicted for the first degree murder of Police Officer Patrick Wallace and sentenced to death. Story appealed his conviction and sentence to the Supreme Court of Pennsylvania, which affirmed the judgment of conviction but vacated the death sentence and imposed a sentence of life imprisonment. Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981).¹

B. State Collateral Proceedings

In July 1983, Story, acting pro se, sought post conviction collateral relief in the Court of Common Pleas of Allegheny County pursuant to Pennsylvania’s Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S. §§ 9501-9543.² The Court appointed Jack Conflenti of the Allegheny County Public Defender’s Office to represent him. Although ordered to file an amended petition on Story’s behalf, Conflenti failed to do so. As a result, on February 10, 1984, the pro se petition was denied without a hearing.

Story appealed the denial of PCHA relief to the Superior Court of Pennsylvania. On April 19, 1985, that court vacated the trial court’s judgment and remanded the matter for appointment of new counsel and other necessary proceedings. On June 5,1985, the Court of Common Pleas appointed George C. Entenman to pursue Story’s collateral claims by filing an amended PCHA petition. According to Story, he attempted to contact Entenman on several occasions to urge the filing of an amended petition, and even sent family members to Entenman’s office for the same purpose, but Entenman failed to comply with the Court’s order.

Nearly eleven years after Conflenti failed to file an amended petition, and nearly nine years after Entenman failed to act as well, Story’s PCHA petition remains in the Court of Common Pleas. The only activity on Story’s petition since June 5, 1985, has been the recent appointment of his third PCHA attorney (Jerome DeRiso) on February 24, 1993, and the filing of an amended petition a year later on February 14, 1994.

C.The Federal Habeas Proceedings

In February 1992, Story filed a pro se petition for a writ of habeas corpus, 28 U.S.C. § 2254, which eventually reached the District Court for the Western District of Pennsylvania.³ In addition to raising.three substantive claims,⁴ Story’s habeas petition related his inability to contact Entenman and his frustration that, after several years, there had been no disposition on his PCHA petition. The Commonwealth filed a response in which it asserted that the habeas petition should be denied for failure to exhaust all claims therein or, in any event, because the claims were without merit.

The matter was referred to a magistrate judge who, despite Story’s revelations of state court delay, recommended that the district court dismiss the petition for failure to exhaust state court remedies.⁵ Story filed objections, in which he again asserted that, under the circumstances, the state process was ineffective to protect his rights, and that, in accord with 28 U.S.C. § 2254(b),⁶ it would be futile to require him to exhaust his state remedies. By order entered September 17, 1992, the district court adopted the magistrate judge’s Report and Recommendation, dismissed the petition, and denied Story’s request for the issuance of a certificate of probable cause.

Story timely appealed, again seeking the issuance of a certificate of probable cause. A motions panel of this Court found probable cause to appeal and issued the certificate on May 28, 1993.⁷ Since this is an appeal from a final order dismissing Story’s pro se petition for writ of habeas corpus, we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the district court’s determination that state remedies have not been exhausted and should not be excused. Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.1991).

II. EXHAUSTION OF STATE REMEDIES

Generally, a state prisoner seeking federal habeas relief must present each of his claims to the state’s highest court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971); Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982). However, exhaustion is not jurisdictional, but a matter of comity. See Id., 455 U.S. at 515, 102 S.Ct. at 1201. The federal courts need not defer to the state judicial process when no appropriate remedy exists at the state level or when the state process would frustrate the use of an available remedy. See 28 U.S.C. § 2254(b); Hankins, 941 F.2d at 249.

We observed in Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986) that “inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable,” thereby prompting the federal court to excuse exhaustion. Although the existence of an inordinate delay does not automatically excuse exhaustion, it does shift the burden to the state to demonstrate, why exhaustion should still be required — a burden that is difficult to meet. See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987), cert. denied, — U.S. -, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992); Wojtczak, 800 F.2d at 355.

In Wojtczak, for example, we dealt with a 33-month delay in deciding post-conviction petition, finding it sufficient to excuse exhaustion. Id. at 356. We have also found delays of eleven, five, twelve and three years sufficient to excuse exhaustion. See Hankins, 941 F.2d at 247 (eleven years to decide motion to withdraw guilty plea sufficient to excuse exhaustion requirement); Burkett, 826 F.2d at 1218 (five year delay sufficient to excuse exhaustion); Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir.1978) (twelve years to decide new trial motion); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir.1973) (three year delay in deciding PCHA petition); see also United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975) (stating in dicta that three years and four months to decide motion for new trial was inordinate delay sufficient to obviate the exhaustion requirement).

Story has demonstrated, and the Commonwealth has not denied, that he has suffered significant delay at the hands of the Court of Common Pleas for Allegheny County. The Commonwealth maintains, however, that its interest in deciding in the first instance issues raised concerning the prosecution of an alleged murderer, especially one who killed a state law enforcement officer, outweighs any delay he has suffered. The Commonwealth also claims that any delay was due to Story’s own failure to alert the Court of Common Pleas that the court had not yet ruled on his PCHA petition.⁸ Finally, the Commonwealth points to the recent progress on Story’s PCHA petition, and urges this Court to defer to the state process.

We find the facts in this case to be as egregious as those in the cases cited above. During the nearly eleven years of his PCHA proceedings, Story has had three court-appointed attorneys, two who failed to comply with a Court of Common Pleas order to file an amended petition on Story’s behalf, and one (the most recent) who took nearly a year to comply with a similar order. More importantly, however, the Court of Common Pleas neglected Story’s case for almost eight years, apparently because of what appears to be seriously deficient docket management procedures, see infra, taking action only after it received notice of Story’s federal petition.

We find it wholly untenable to penalize Story for his attorneys’ failures and the Court of Common Pleas’ inability to manage its own docket. Nor do we consider recent progress on Story’s PCHA petition sufficient to require him to. afford the state’s courts three more years,⁹ in addition to the nearly nine already consumed.¹⁰ The Commonwealth simply has not met its burden to show why, in light of its inordinate and inexcusable delay, we should not excuse exhaustion. We will therefore reverse the order dismissing the habeas petition and remand the case to the district court with directions to entertain Story’s petition on the merits.

III. THE ALLEGHENY COUNTY DOCKETING SYSTEM

When we searched for some reasonable explanation for the Court’s failure to act on Story’s PCHA petition for such a lengthy period of time, we concluded that the monumental delay was, in large part, the result of serious deficiencies in the Court’s docketing system. For some reason, the Court of Common Pleas of Allegheny County maintains no running (contemporaneous) central docket sheets for work in process on any criminal case before it.

Before 1978, court personnel apparently recorded all filings and orders from all cases in a series of ledgers. The ledger entries appeared in chronological order of their happening. However, on any given day, the ledgers might have reflected several unrelated occurrences in several unrelated cases. Thus, it was nearly impossible for someone, including the court, to array in one place the proceedings of any particular case without expending considerable effort rummaging through each page of the ledgers. Although the court computerized the ledger system in 1978, computerization did not remedy the problem; the court still does not create a running central docket sheet for each criminal case until the ease is appealed to the Superior Court of Pennsylvania, and so there is no convenient source which reflects the filings that have occurred in a particular case.

As a result of this system, there was never a public record created to summarize the events in Story’s collateral proceeding. Nor was there a convenient method by which the presiding judge could monitor the progress of Story’s case, independent of the judge’s own recordkeeping. There was simply no way of knowing the status of a case without scanning the computer files by entering the defendant’s name, state offense tracking number (OTN), or the information (docket) number. The cumbersome nature of these methods apparently caused the court to overlook Story’s pending proceeding.

We are surprised that a court with such a distinguished history as the Court of Common Pleas of Allegheny County lacks a central docket sheet system capable of monitoring work in progress on each criminal case. We believe that the absence of such a system contributed to .the terrible delay of nearly nine years that we observe here.¹¹ We urge the Court of Common Pleas to upgrade its docketing system.

The order of the district court dismissing Story’s federal habeas petition will be reversed and the ease remanded to the district court for consideration of the petition on the merits.¹²

1 . Story was indicted in November of 1974. In March 1975, a jury found him guilty of murder in the first degree and fixed his sentence at death. On direct appeal, the Supreme Court of Pennsylvania reversed the conviction and remanded the case for a new trial. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 169 (1978). The death penalty statute under which Story had initially been sentenced in 1975 was declared unconstitutional in 1977 in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442, 443 (1977). Thereafter, in September of 1978, Pennsylvania enacted a new death penalty statute. The Supreme Court ultimately determined that Story's second death sentence could not stand, having been based on a statute not in existence at the time of the crime. Story, 440 A.2d at 489-91.

2 . The PCHA was amended in 1988, and is now known as the Post Conviction Relief Act ("PCRA”). See 42 Pa.C.S. § 9541.

3 . Story had been transferred to a federal penitentiary in Indiana, apparently pursuant to a federal-state agreement for housing of prisoners, and he initially filed the petition in December, 1991 in the United States District Court for the Southern District of Indiana. On December 31, 1991, the Indiana federal district court transferred the case to the United States District Court for the Eastern District of Pennsylvania which, on February 12, 1992, transferred the case to the United States District Court for the Western District of Pennsylvania (by that time Stoiy had been re-transferred to a Pennsylvania state prison).

4 . These are: 1) ineffective assistance of counsel at trial; 2) unconstitutional selection of a death qualified jury; and 3) error by the Supreme Court of Pennsylvania in imposing a life sentence rather than remanding the case for resentencing.

5 . Specifically, the Magistrate Judge’s Report and Recommendation found that only Story's second claim (improperly impaneled jury) had been exhausted, thereby rendering the habeas petition a "mixed petition" which required dismissal. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) (district court must dismiss a habeas petition containing both exhausted and unexhausted claims which raise a colorable claim of denial of a federal right).

6 . 28 U.S.C. § 2254(b) provides:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

7 .Pursuant to our issuance of the certificate, the Clerk of this Court appointed the Federal Public Defender's Office to represent Story on appeal.

8 . The Commonwealth contends, among other things, that Story should have filed another pro se petition in the Court of Common Pleas for Allegheny County. To the extent that his several previous encounters with appointed counsel and the court proved futile, however, we find Story’s failure to pursue a new petition quite understandable. After all, " 'it is the legal issues that are to be exhausted, not the petitioner.’ ” Burkett, 826 F.2d at 1218 (quoting Walters, 510 F.2d at 893).

9 . Three years is the amount of time counsel estimated at oral argument that it would take to complete the state proceedings, including an appeal to the Pennsylvania Superior Court and resolution of a petition for allocatur to the Pennsylvania Supreme Court.

10 . See Burkett, 826 F.2d at 1218 & n. 31 (excusing exhaustion upon finding that petitioner’s claims had been delayed long enough, regardless of the fact that state court proceedings had shown recent advancement); Wojtczak, 800 F.2d at 356 & n. 3 (excusing exhaustion because of delay even where cause of delay had been remedied).

11 . It also created a good deal of confusion in the proceedings before this Court because neither party could state with any certainty whether,the Court of Common Pleas ever appointed attorney Entenman to represent Story.

12 . We do not engage the dissent's discussion of the merits, and intimate no view as to its correctness vel non except to note that we do not believe the dissent's analysis and conclusion to be free from doubt. At all events, we believe it preferable for the merits to be addressed by the district court in the first instance.