Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
5-3-1995
Walker v Vaughn Precedential or Non-Precedential:
Docket 94-1367
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Recommended Citation "Walker v Vaughn" (1995). 1995 Decisions. Paper 118. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/118
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No. 94-1367
RONALD WALKER, Appellant v.
DONALD T. VAUGHN; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; DISTRICT ATTORNEY OF PHILADELPHIA COUNTY
On Appeal from the United States District Court For the Eastern District of Pennsylvania D.C. No. 92-cv-01616
Argued January 24, 1995
Before: SLOVITER, Chief Judge, HUTCHINSON and LEWIS, Circuit Judges
(Opinion Filed May 3, l995 )
Michael J. Kelly (Argued) Defender Association of Philadelphia Federal Court Division Philadelphia, PA 19106-2414
Attorney for Appellant
Donna G. Zucker (Argued) Office of District Attorney Philadelphia, PA 19102
Attorney for Appellees OPINION OF THE COURT
SLOVITER, Chief Judge.
Appellant Ronald Walker appeals the district court's
denial of his petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. Walker's petition alleges ineffective
assistance of counsel in the state trial and direct appeal,
primarily for their failure to press a claim on his behalf under
Batson v. Kentucky, 476 U.S. 79 (1986) (barring racially discriminatory use of peremptory challenges by prosecutors).
Although we will affirm the ruling of the district court, the
procedural history of this case presents an important issue about
the procedure to be followed by a federal court reviewing a
habeas corpus petition when a dormant state proceeding is
reactivated. The relevant procedural facts are necessarily set
forth in detail.
I.
Facts and Procedural History
In November 1985, appellant Ronald Walker, armed with a
double-barrelled shotgun and a handgun, entered the home of his
estranged wife in Philadelphia. Walker proceeded to hold his
wife's mother, sister and daughter hostage in the home for a
period of approximately twenty-four hours. After a long standoff
with police, Walker released the hostages and surrendered. He
was then charged with crimes arising out of the incident. On October 9, 1986, after a jury trial in the
Philadelphia Court of Common Pleas, Walker was convicted of three
counts of kidnapping, one count of attempted kidnapping,
burglary, simple assault and possession of an instrument of
crime. The judgment and sentence in the case was entered on May
20, 1987. On April 13, 1989, Walker's conviction was affirmed on
direct appeal in an unpublished opinion by the Pennsylvania
Superior Court. See Commonwealth v. Walker, 561 A.2d 823 (Pa.
Super. Ct. 1989).
Walker did not file a petition for allocatur to the
Pennsylvania Supreme Court. Instead, on February 28, 1990 he
filed a pro se petition under the Pennsylvania Post Conviction
Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541 et seq.
(hereinafter "PCRA action"), alleging that both his trial counsel
and his appellate counsel had been ineffective.
Walker's court-appointed counsel in the PCRA action,
however, failed to prosecute the PCRA petition promptly,
resulting in a delay of more than two years.1 Thus, on March 19,
1992, Walker filed this petition for habeas corpus in the United
States District Court for the Eastern District of Pennsylvania
and listed as respondents Donald T. Vaughn by name (the
Superintendent of the State Correctional Institute at
1 . Based on the record provided to this court, it appears that between February 1990 and May 1992, the state PCRA court listed the action approximately eleven times in an effort to move the matter towards resolution, but Walker's court-appointed counsel failed to appear on several occasions and arranged continuances of other hearings. Graterford), the District Attorney of Philadelphia, and the
Attorney General of Pennsylvania (hereinafter referred to jointly
as the "State"). In his petition, Walker alleged that the delay
in the resolution of his PCRA action rendered that action
ineffective to protect his rights, and that therefore his failure
to exhaust his state post-conviction remedy should be excused.
On April 20, 1992, the state court presiding over the
PCRA action scheduled a hearing for July 2, 1992 and issued an
order to compel Walker's counsel to attend. The State, in
responding on May 14, 1992 to Walker's federal petition, notified
the district court of this latest development in the PCRA action
and argued that Walker's obligation to exhaust his state remedies
should not be excused. On June 5, 1992, the federal magistrate
judge issued a Report and Recommendation that, due to the
pendency of the PCRA action, Walker's habeas petition should be
denied and dismissed without prejudice for failure to exhaust his
state court remedies. The district court, however, took no
immediate action regarding this Report and Recommendation, and
Walker's federal habeas petition remained pending.
Walker's court-appointed PCRA counsel did not appear at
the state PCRA hearing on July 2, 1992. The state court
therefore took a number of steps, including threatening the
imposition of sanctions, in order to force Walker's counsel to
appear. While those efforts were largely unsuccessful, Walker's
PCRA counsel did file an amended PCRA petition on September 30,
1992. That amended petition, however, was not accompanied by the
supplemental memorandum required by Pennsylvania law. After several additional missed appearances, the state court ordered
Walker's PCRA counsel to attend a hearing on December 15, 1992,
and warned counsel that he risked being held in contempt if he
did not appear on that date.
While the state court was still attempting to compel
Walker's state counsel to appear in the PCRA proceedings, the
district court ordered the parties in the federal habeas
proceeding to appear for a hearing on December 15, 1992 regarding
the status of Walker's state PCRA action. The state court then
changed its hearing to December 14, 1992, and at that hearing
heard testimony on the merits of Walker's PCRA claim.
The following day, December 15, 1992, the district
court held its hearing on the magistrate judge's report
recommending dismissal of the federal action because Walker had
failed to exhaust his state remedies. Walker testified that his
PCRA counsel had represented him at the PCRA hearing the previous
day, and that his original trial counsel had testified as a
witness. The district court made no decision at that time. See
Transcript of Proceedings, December 15, 1992, at 32.
On December 22, 1992, the state court removed Walker's
court-appointed PCRA counsel, apparently because of his prior
lack of diligence, and thereafter appointed a replacement. This
marked renewed movement in the PCRA action.
On January 8, 1993, the district court held another
hearing, at which Walker's former PCRA counsel testified, and
advised the court he had been replaced. See Transcript of Proceedings, January 8, 1993, at 6-8. The district court acknowledged that "things are beginning to move" in the state
proceeding, id. at 16, but expressed doubt about whether the
state proceeding would be resolved expeditiously. Id. at 9.
After receiving a supplemental brief addressing the exhaustion
question,2 the district court issued an order on January 15, 1993
that disapproved the Report and Recommendation of the magistrate
judge and ruled, instead, that the delay in the state PCRA
proceeding was sufficient to waive Walker's exhaustion
requirement under 28 U.S.C. § 2254(b). The district court then
directed Walker to file an amended habeas petition.
On February 1, 1993, with the assistance of his
federally-appointed habeas counsel, Walker filed an amended
habeas petition raising thirty-one issues. After the State filed
a response to the amended petition, the district court ordered
Walker to file an offer of proof and brief citation to authority
in support of each of the thirty-one claims which Walker intended
to pursue. See Order of February 26, 1993. Before Walker
responded to the district court's order, his appointed habeas
counsel filed a motion to withdraw in the federal action. The
district court therefore continued Walker's obligation to file
2 . The State's supplemental brief, which was filed on January 11, 1993, conceded there had been some prior delays, but argued that Walker's PCRA action was now proceeding rapidly through the state court system, with additional evidentiary hearings set for February 1993. See Supplementary Response on Issue of Exhaustion, January 11, 1993, at 5. The State proposed that the federal court dismiss Walker's habeas action without prejudice to renew it if the state proceedings were not fully resolved within a reasonable time frame. Id. at 6-7. the offer of proof and citation to authority pending the
resolution of the motion to withdraw.
While Walker's federal action was stalled for this
reason, Walker's state PCRA action was proceeding. Walker's
newly-appointed PCRA counsel was permitted to file a new amended
petition, and between December 1992 and April 1993 the state
court heard testimony regarding Walker's claims for post-
conviction relief. Because there was no transcript of the voir
dire that had been conducted for Walker's trial, the state court
permitted Walker to present testimony regarding the merits of the
alleged ineffective assistance/Batson violations. See App. at
101.
Walker testified that during voir dire, allegedly on
October 6, 1986, the assistant district attorney who tried the
case against him "had a problem with black males," App. at 102;
that the jury ultimately selected was composed of "mainly
females," App. at 107; that he was "very unhappy" about the
selection process and complained about the process to his trial
counsel "several times," App. at 107-08; and that his trial
counsel told him to "shut up" and declined to object to the
prosecutor's actions. App. at 108. The State objected to this
testimony, in part because Walker had made no offer of proof
regarding the number of people on the jury, the number of black
jurors, and the number of black individuals who were stricken
from the jury. Walker's counsel responded that he expected
testimony or an affidavit on this issue by Walker's trial
counsel. However, when Walker's trial counsel did testify on April 21, 1993, he was not questioned on any Batson-related
issues.
On June 29, 1993, the state court issued an order
denying Walker's PCRA claim. The court rejected Walker's
ineffective assistance/Batson claim, concluding that Walker
"failed to sustain his burden of proof on this issue."
Commonwealth v. Walker, Nos. 8601-2553-2575, Memorandum Opinion
at 10 (Philadelphia Court of Common Pleas, filed June 29, 1993).
On July 8, 1993, Walker filed an amended federal habeas
petition containing approximately thirty-three claims. One of
the claims asserted by Walker was "that the makeup of the jury
was prejudicial against petitioner." At a hearing before the
district court on July 23, 1993, the State argued that Walker's
petition did not state a claim for relief, relying upon the
testimony and record produced in the PCRA proceeding. Among
other things, the State argued that Walker failed to create a
record in the PCRA action that would be sufficient to support his
ineffective assistance/Batson claim, and asked the federal court
to "stay its hand" because the PCRA action, which had concededly
been delayed for some time, could "no longer legitimately be
called ineffective to protect [Walker's] rights." See App. at 61.
While the issue was pending in the district court, the
Pennsylvania Superior Court rejected Walker's appeal and, on
February 2, 1994, affirmed the denial of relief under the PCRA.
The Superior Court held that Walker's failure to provide the
notes of testimony or a statement pursuant to Pa. R. App. P. 1923 in lieu of a transcript precluded appellate review of the claim.
See Commonwealth v. Walker, No. 02523 Philadelphia 1993,
Memorandum Opinion at 6 (Pa. Super. Ct., filed February 2, 1994).
Walker then filed a petition for allocatur to the Pennsylvania
Supreme Court.3
On February 16, 1994, while Walker's petition in the
Pennsylvania Supreme Court was still pending, the federal
district court issued its order denying Walker's federal habeas
petition. With respect to Walker's ineffective assistance/Batson
claim, the court stated that "[t]here is no record of how many
blacks were in the venire, how many were struck by the
prosecution and the defense, how many blacks sat on the jury, or
how many peremptory challenges the prosecutor used. Petitioner's
insufficient showing precludes review by this court." Memorandum
& Order of February 16, 1994 at 15-16. The district court
therefore found that Walker had failed to make a sufficient
record in the PCRA proceeding to support the claim.
The district court also commented in another portion of
its opinion that: [P]etitioner did not avail himself of the Pennsylvania Rules of Appellate Procedure that provide an opportunity to reconstruct the record for purposes of appeal. Pa. R. App. Pro. 1923, 1924. Petitioner also failed to supplement the record during the PCRA proceedings, although he had ample opportunity to do so. Because petitioner does not demonstrate cause for failing to develop the record in state proceedings, he cannot do so for the first time by federal habeas
3 . The Pennsylvania Supreme Court denied Walker's petition for allocatur on November 30, 1994, after Walker's appeal before this court had been filed and fully briefed. action. See Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992).
Memorandum & Order of February 16, 1994 at 13. While this
portion of the district court's opinion did not specifically
address Walker's ineffective assistance/Batson claim, it appears to have supported the court's conclusion regarding that claim.
The district court granted Walker's motion for a
certificate of probable cause, and this appeal followed. In the
appeal, Walker challenges only the district court's dismissal of
his claim for habeas relief on the grounds of ineffective
assistance of counsel due to trial counsel's failure to object to
the prosecutor's practice of racial discrimination in jury
selection.
We have jurisdiction over Walker's appeal pursuant to
28 U.S.C. § 1291. See Story v. Kindt, 26 F.3d 402, 405 (3d
Cir.), cert. denied, 115 S. Ct. 593 (1994). Where a district
court has denied a state prisoner's habeas corpus petition
without a hearing on the merits, our review is plenary. See Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989). II.
Discussion
On appeal, Walker concedes that the record before the
district court was insufficient to support either a substantive
Batson claim or a claim for ineffective assistance based on
defense counsel's failure to raise a Batson claim. He argues,
however, that it was unfair for the district court to dismiss his
action in light of the State's failure to produce any record of
the jury selection despite the district court's prior order
requiring it to do so. Walker contends that the district court
should have held an evidentiary hearing on the whereabouts of the
record of jury selection, and, if necessary, should have given
him an opportunity to reconstruct that record.4
In response, the State contends that the district
court's decision followed the Supreme Court's recent decision in
Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), holding that,
absent a showing of cause and prejudice, a federal court may not
provide a habeas petitioner with an evidentiary hearing where the
petitioner had an adequate opportunity to develop the relevant
facts in state court proceedings. Id. at 1721. Thus, the State
reasons, Walker's failure to develop the facts relevant to his
ineffective assistance/Batson claim during the PCRA proceeding
4 . Walker cites no relevant authority to support this position. He refers only to Douglas v. California, 372 U.S. 353 (1963), in which the Supreme Court held that a state's failure to provide an indigent criminal defendant with defense counsel in his direct appeal was unconstitutional. precludes the district court from granting him the opportunity to
do so in this habeas proceeding.
Were this the paradigmatic federal habeas proceeding,
where the petitioner has fully exhausted state remedies prior to
filing a federal habeas petition, the State's argument would be
indisputable. Walker's failure to establish a factual record
during the PCRA proceeding would be subject to the Tamayo-Reyes
cause and prejudice standard, and his inability to demonstrate
cause for his failure to develop the factual record during the
PCRA action would therefore support the district court's decision
to reach the merits of his claims without holding an evidentiary
hearing.
This case does not fit neatly within the Tamayo-Reyes
rule because the Court there addressed a habeas petitioner's
failure to develop a factual record in a post-conviction state
proceeding that was exhausted prior to the filing of the federal
habeas petition. Id. at 1716-17. In contrast, here the district
court concluded that Walker had not demonstrated cause for his
failure to develop an adequate state court record to establish
his claim by relying, somewhat paradoxically, upon the
opportunity presented to Walker at a state proceeding that the
district court had excused Walker from exhausting.5 We thus must
consider, apparently as a matter of first impression, the proper
application of the Tamayo-Reyes rule in these circumstances. 5 . The district court's waiver of the exhaustion requirement in this case has not been challenged by the State on appeal. Thus, despite our questions about the district court's ruling on that issue, we do not reach it here. To do so, we return to basic principles. In general, a
habeas petition may not be granted "unless it appears that the
applicant has exhausted the remedies available in the courts of
the State." 28 U.S.C. § 2254(b). The exhaustion rule is not
jurisdictional. See Story, 26 F.3d at 405. Rather, the rule is
"rooted in considerations of federal-state comity." Preiser v.
Rodriguez, 411 U.S. 475, 491 (1973). The rule "is principally
designed to protect the state courts' role in the enforcement of
federal law and prevent disruption of state judicial
proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982).6 The
exhaustion rule also serves the secondary purpose of facilitating
the creation of a complete factual record to aid the federal
courts in their review. Id. at 519.
Similarly, Tamayo-Reyes explained that the cause and
prejudice rule regarding evidentiary hearings "appropriately
accommodate[s] concerns of finality, comity, judicial economy,
and channeling the resolution of claims into the most appropriate
forum." Tamayo-Reyes, 112 S. Ct. at 1719. The Court also
commented that its rule was "fully consistent with and gives
meaning to the requirement of exhaustion" by ensuring that
factual issues are addressed by the state courts "in the first
instance." Id. at 1720. The exhaustion rule and the Tamayo-
6 . In Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), the Supreme Court noted that "[c]omity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits." Id. at 1720. Reyes rule are therefore animated in part by the same concerns:
comity to the state courts and ensuring that an adequate factual
record is developed in the state courts.
On the other hand, the habeas corpus statute provides
that exhaustion of state remedies may be excused where there is
"an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to
protect the rights of the prisoner." 28 U.S.C. § 2254(b). The
principal instance for excusal of exhaustion is inordinate delay
rendering the state remedy "effectively unavailable." See
Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986); see also
Story, 26 F.3d at 405-06 (listing cases). In such circumstances,
the comity and record-creation concerns of the exhaustion rule
yield to the federal courts' obligation to serve as a forum for
the protection of the petitioner's fundamental federal rights.
See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987).
It is unclear whether, once the district court determines
exhaustion can be excused because of undue delay, the concerns as
to comity and record-creation remain sufficiently relevant to
require application of the Tamayo-Reyes rule, the issue presented by this appeal.
Because most habeas petitions filed during the pendency
of state proceedings are dismissed for lack of exhaustion, no
principles have been developed to guide the district court in a
habeas proceeding as to reliance on a state evidentiary
proceeding that occurred after the exhaustion requirement has
been excused. Cf. Wojtczak, 800 F.2d at 356 n.3 (noting that after federal court found inexcusable delay in Pennsylvania state
court post-conviction proceeding and permitted habeas petition to
proceed, the state court stayed the post-conviction proceeding
pending the disposition of the federal case). The issue would
not have arisen in this case had the district court accepted the
State's suggestion that it stay all federal proceedings pending
the resolution of the state court action once it became apparent
that the state PCRA action had been reactivated. As a matter of
general practice, we assume that a district court which has
excused exhaustion but has not yet embarked upon proceedings of
substance will stay its hand once there is reliable evidence that
the state action has been reactivated. Cf. Picard v. Connor, 404
U.S. 270, 275 (1971) (noting that states generally must be given
the opportunity to pass upon and correct alleged violations of
their prisoners' federal rights); see also Burkett, 826 F.2d at
1218 (affirming a district court's dismissal for lack of
exhaustion where the petitioner's state case was "proceeding
normally," but excusing exhaustion where there was no indication
that state court would soon dispose of petitioner's case).
An examination of the Tamayo-Reyes opinion suggests the appropriate manner to resolve the issue presented in this case.
Clearly, the Court wanted to limit a defendant's opportunities
"to relitigate a conviction." Tamayo-Reyes, 112 S. Ct. at 1719.
More significantly, the Court noted that the cause and prejudice
rule regarding evidentiary proceedings "serves the interest of
judicial economy" by preventing defendants from using the scarce
judicial resources of the federal courts to "duplicate factfinding" that could have been performed in state court. Id.
This focus on judicial economy is consistent with other Supreme
Court pronouncements regarding the use of the limited resources
of the federal judiciary in habeas cases. See Schlup v. Delo,
115 S. Ct. 851, 864 (1995) (suggesting that review of petitions
for habeas corpus requires consideration of the "systemic
interests in finality, comity, and conservation of judicial
resources"); McCleskey v. Zant, 499 U.S. 467, 491 (1991) (noting
that federal collateral litigation places a heavy burden on
scarce judicial resources, and threatens the capacity of the
system to resolve primary disputes).7
Thus, a decision to apply the Tamayo-Reyes rule should
be guided not only by comity and record-creation concerns but
also by an interest in encouraging judicial economy and avoiding
duplicative procedures in the state and federal court systems.
See United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d
Cir. 1973) (record of a then-pending state proceeding should be
considered by the district court on remand if the state
proceeding was final at the time the district court rendered its
decision).
We need not decide in this case what effect should be
given to state court findings following a state evidentiary
7 . See also Schneckloth v. Bustamonte, 412 U.S. 218, 260-61 (1973) (Powell, J., concurring) ("To the extent the federal courts are required to re-examine claims on collateral attack, they deprive primary litigants of their prompt availability and mature reflection. After all, the resources of our system are finite: their overextension jeopardizes the care and quality essential to fair adjudication.") hearing in which the petitioner did not participate because the
federal court excused exhaustion. Walker did participate fully
in the state PCRA hearings that occurred after the filing of his
habeas petition. At those hearings, Walker was represented by
counsel who called various witnesses, including Walker himself,
to testify in Walker's behalf. Indeed, a review of the
transcript of the PCRA proceeding suggests that Walker was given
every opportunity to create a record sufficient to establish any
constitutional claims. Having availed himself of that
opportunity by appearing and presenting evidence, it would be
inconsistent with the interests of judicial economy expressed in
Tamayo-Reyes and other Supreme Court decisions regarding federal
habeas proceedings to give Walker a second evidentiary hearing in
federal court.
We do not hold that a habeas petitioner must
participate in a state proceeding that the district court has
held need not be exhausted, an issue we leave for another day.
We merely hold that application of the Tamayo-Reyes rule is
appropriate in this case, where the state prisoner has appeared
at the state hearing and has had an adequate opportunity to
develop a record to establish his claim.
We recognize that the district court rendered its
decision relying upon the opportunity provided by the state PCRA
action while a petition for allocatur in that action was still
pending in the Pennsylvania Supreme Court.8 Arguably, relying on
8 . The district court may have so acted because of concern about further delay. The Pennsylvania Supreme Court has recently taken a state action that is not yet final poses some risk.
Regardless, at oral argument before this court, the parties
agreed that Walker's petition for allocatur was denied by the
Pennsylvania Supreme Court on November 30, 1994, while this
appeal was pending. Thus, the district court's reliance upon a
then-pending state proceeding in reaching its decision cannot now
provide a basis for the reversal of its decision.
We therefore conclude that the district court's
dismissal of Walker's ineffective assistance/Batson claim was
proper. The state court record is insufficient to establish the
claim, and, having fully participated in the PCRA action, Walker
is unable to demonstrate cause for his failure to reconstruct
that record in state court, nor is there any suggestion that a
miscarriage of justice would result from a failure to hold an
evidentiary hearing on the issue in the district court. Tamayo-
Reyes, 112 S.Ct. at 1721.
(..continued) steps to reduce the delays in reviewing petitions for allocatur by appointing a committee to address the problem and adopting new internal operating procedures. See Supreme Court Internal Operating Procedures, Pennsylvania Law Weekly, Nov. 7, 1994, at 12; see also Ralph J. Cappy et al., Allocatur Review Must Be Perceived As Objective, Pennsylvania Law Weekly, Nov. 21, 1994, at 6 (first part of Final Report and Recommendation of the Allocatur Study Committee of the State Supreme Court); Ralph J. Cappy et al., High Court Needs Central Staff, Funding, Pennsylvania Law Weekly, Nov. 28, 1994, at 6 (second part of Final Report and Recommendations of the Allocatur Study Committee of the State Supreme Court). III.
For the foregoing reasons, we will affirm the district
court's order of February 16, 1994, denying Walker's petition for
a writ of habeas corpus. __________________________________