2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

2-11-2004 

# Lee v . S t ickm a n

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 02-3497

F o l lo w thi s a nd a dd it ion al work s at : h tt p://d i g it alc ommon s .l a w
. v i l l a no va
. e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w
. v i l l a no va
. e du

. Re c omme nde d C it at ion

" L e e v . S t ickm a n " (2004). 2004 D e cisio n s

. P ape r 959. h tt p://d i g it alc ommon s .l a

w
. v i l l a no va
. e du/thir dc ir c uit_2004/959

### PRECEDENT IAL

UNITED S TATES COUR T OF APPEALS FOR THE THIRD CIRCUIT

______________ No: 02-3497

______________ KENNETH LE E,
Appellant

v.

WILLI AM STICK

MAN; STEPH EN ZAP PALA, JR .; MICHAEL

FISHER

Appeal from the United States Dist rict Court for the Western District of Pen nsylvania (D.C. Civi l Action No. 02-cv-01013) District Judge: H onorable R obert J.

Cindrich

______________________ Argued on December 18,2003
Before: ROTH,MCKEE and CUDAH Y* , Circuit Judges
(Opinion fil ed: Februa

ry 11, 2004)

__________________ 

### *The Honorabl e Richard D

. Cudahy, Circuit J

udge for the United States Court o f Appeals f or the Seven th Circuit, sitt

ing by designat ion. Stephen J. Binhak, Esqui re (Argue d) 3103 Philmont

Avenue Huntingdon Vall ey , PA 19006
Counsel for Appe llant

Ronald M. Wa

bby,Jr., Es quire (Ar

gued) 401 Alleg heny County Courtho use Pittsbur gh, PA 15219
Counsel for Appellees

O P I N I O N

CUDAH Y, Circuit

Judge

This is an appeal by

Kenneth Lee from an order of t

he United States Distri ct Court f

or the Weste rn District of Pennsylvania d ismissing his petition fo r a writ of habe as corpus on t he ground that he ha d faile d to ex haus t availab le state

co urt r eme di es . L ee co nt en ds th at we must excuse t

he exhausti on requir ement beca use o f the e ight-year d elay in his post-c onv iction c ollateral p rocee ding s in the P enn sylvan ia sta te co urts. W e ag ree. We therefore r everse t

he order of t

he district court and r emand the case f or consider ation of

Lee’s habeas petition on the m erits.

I. If W illiam S hake spea re w ere to summarize Lee’s experie nce with the Pennsylvania st ate courts, he might desc ribe it as “ a tale told by an idio t, full of sound and fury , si gnify ing nothing.”Willi am Shakespeare, Macbeth, act 5, sc. 5., lines 2 6-28 . The epic b egins on A pril 30, 1992, when a j uryconvict ed Lee of poss ession of co caine , posse ssion w ith intent to deliver cocai ne and resi sti ng
arres t. On June 25, 1992, Lee was sentence d by t

he Court of Common Pleas of A llegheny Cou nty to 1.5 - 5 years impris onment foll owed by five years of probati on. After an unsuccessf ul dir ect appeal, Lee file d a pro se petition under the Pennsylvania

Post Convict ion Reli ef Act (“PCRA”) on February 13, 1995. 42 Pa. Cons. St at. Ann. § 9541 et seq. In his PCRA petition, Lee r aised five argu men ts: (1) the trial judg e abu sed h is discre tion in d enying a mo tion to supp ress; (2) th e trial jud ge w rong fully denied a moti on to arr est j udgment; (3) one of the j urors was bi ased because of his employ

ment with t

he Allegheny County Court

of Common Pleas; (4) t he evidence di d not support a convict ion; and (5) the trialjudge wrongfully crossexamined Lee in front of the jury. Most of these arguments have ne ver been

cons idered on th e me rits by any cou rt.

On Fe bruar

y28, 199 5, a PCRA counsel was appoi nted for Lee. On M ay 11, 1995, a fter he aring not hing from the court, Lee file d a Petition For Writ of Ha beas Co rpus in the sam e cou rt. This petit io n was den ie d be cau se th e PCRA petition was pending. On June 1, 1995, PCRA counsel r equested t hat he be relieve d as c oun sel sinc e Le e w anted to repres ent himsel f. This r equest was granted. O n June 6 , 1995, the co urt ordered Lee t o provide notice of whether he inte nded to purs ue his PCRA petiti on pro se . The order

noted that if Lee fa iled to provi de notic e within t hirt y day s, t he petit ion wo uld be d ism issed

.

For re ason s unk now n to this Co urt, L ee d id n ot re spo nd t o th is ord er. In Januar y 1996, Lee was stil l await ing a decisi on on his PCRA petiti on, so he file d a Motion for Reli ef / Dispos iti on Without Heari ng. In t

his appl icat ion, Lee reiterated the jury bia s claim , but did not reas sert

the othe r claims he had made in the PCRA petit ion. On Februar y 25, 1996, the court di smissed Lee’ s Motion for Reli ef / Dispos iti on Without Heari ng, explai ning that

Lee had waived the r ight to chal lenge the juror

by not rais ing the issue e arli er. On August 16, 1996, eighte en months after

Lee submitted the PCRA petition , the court di smissed t hat petition for t

he sole r eason that

Lee had failed to indic ate w hethe r he w ould proceed pro se . On August 25, 1996, Le e ap pea led th is dis mis sal.

On M arch 17, 1 998 , eighte en months after thi

s appeal , the Superior Court of Pennsylvania

vacated t

he Aug ust 16, 199 6 Ord er of the low er court because the Court of Common Pleas had failed to pro vide n otice o f inten t to dismis s the PCRA petiti on, noti ce of the

reaso ns fo r dism issal an d an o ppo rtunity for Lee to r espond before di smissal . The Superior Court als o noted that Lee had made clear hi s int ent to proceed pro se long before the Court of Common Pleas dismis sed his pe tition. App. Vol. II at 114 n.1. 1

1 The appendix annexed to Petitioner’s brief in this case will be designated asOn Au gus t 14 , 199 8, fivemonths

later , the Court of Common Pleas is sued a new opinion i n response t o the rul ing of the Superi or Court. This new opinion, however, mist akenly

did not addr ess the PCRA petition, but

inst ead address ed only the Motion for

Relief / Disposition Without Heari ng, which i t had al ready dismissed. N onetheless, the co urt concluded i ts opi nion by orderi ng that the P CR A p etition b e dism issed w ithin twenty days unless Lee could show cau se wh y the c our t sho uld rule oth erw ise. Within t hat deadl ine, Lee file d a response in which he rei terat ed the fi ve clai ms in his origi nal PCRA petiti on and also added an ineffective ass ist ance of counsel cl aim. On September 23, 1998, th e tri al court

di smi ss ed t

he P CRA petit ion wit hou t fur ther com me nt.

Lee file d a timel y appea l on October 17, 1998. The case was not submitt ed for a panelreview in t he Sup erior C ourt until almost three years later , in Sept ember of 2001. Accordi ng to the Superior Court

the del ay occ ured because “[i]nexplicab ly, t he trial court record w as not . . . filed in this Court untilApril 2001. ” Id . at 201. On March 20, 2 002 , almost si

x months after the case had been submitted for review , the Superior Court is sued it s decis ion. The Superior Court noted t

hat “[t ]he proc edur al history in th is case is tort urous” and cal led it

“an ongoing odyss ey of l iti gation. ” Id. at 20 0-0 1. Nonetheless , ins tead of deci ding the PCRA petition on the mer its or dir ecti ng the Court of Common Pleas to do so, t he Superior Court remanded t

he case t o the Court of Common Pleas to det ermine wh ether L ee w as still serv ing h is sentence

. 2

On June 25, 2002, Lee fi led a Third Amendment to the PCRA petition, atte mpting t o highli ght the f act that no court had a ddressed hi s clai ms. The Co mm onw ealth m oved to dism iss this applic ation c ontending t hat Lee had served hi s sente nce in ful l. On Jul y 19, 200 2, the C om mo nw ealth w ithdrew this

mo tion w hen it re alized that L ee w as still servi ng his sent ence. On Februar y 25, 200 3, almost a year

after the remand , the Co urt of C om mo n Ple as rein stated its September 23, 1998 Order. Lee appea led this dec ision to the S uper ior C ourt, wh ich h as n ot yet ru led o n hi s ap pea l.

On June 5, 2002, Lee fi led a Petition for Writ

of Habeas Corpus in t

he United Stat es District Court . In t hat petition, Lee al leged i neffecti ve assis tance of couns el at the trial and appellate level , denial of due process, denial of fair t

rial , deni al of equal pro tectio n an d pr ose cuto rial m isco ndu ct. Lee also file d a br ief ex plainin g his fa ilur e t o e xha

us t s tate re med ie s. On September 3, 2002, the U.S. District Court dis missed t

he habeas petiti on for fail ure to exhaust st ate re medies. At the time of t his appeal , Lee was serving probati on which was scheduled t o end on

“App.” 2 On M ay 1, 2002, Lee petitioned t he Superior Court for addi tionalreli ef, but that p etitio n w as d enie d.Oc tob er 1 0, 20 03.

II. Un der ord inar y circu ms tanc es, a federalcourt may

not ente rtai n a peti tion for a writ of habeas corpus unless t he petition er has first pre sented each of h is claim s to th e sta te’s h igh est trib una l. See 28 U .S.C. § § 22 54 (b ), (c); Rose v. Lundy , 455 U.S . 509 , 515 -16 (19 82)

. Exh austion , how ever, is n ot a juri sdict ional mat

ter but a matter of

com ity. See Story v . Kindt , 26 F.3d 402, 405 (3d Cir. 1994). Feder al court s need not defer to the stat e judicial pr ocess when there i s no appropri ate re medy at the state l evel or when the state process

wo uld fru strate the use o f an a vailab le

rem edy. Id. ; 28 U.S .C. § 225 4(b )(1)( B). We have held that

“inexcusa

ble or inord inate d elay by the state in processing clai ms for rel ief may render the st ate re medy effectively unavail able. ” Wojtczak v. Fulcomer , 800 F.2d 353, 354 (3d Cir. 1986). The exi stence of an inord inate d elay doe s not a utom atically

excu se the e xhau stion re quirem ent, bu t it does shift the burd en to th e state to dem onstra te wh y exhau stion sh ould still be r equ ired

. Story , 26 F.3d at 405 (noting that this b urde n is “d ifficu lt to meet”).

In the pas t, we have excus ed the exhau stion requirem ent for petitioners who have undergone signi ficant ly shorte r dela ys than pre sen ted h ere. Wojtczak, 800 F.2d 353, 356 ( 33 month delay between fil ing PCRA and habeas petition s); Burkett

v. Cunningham , 826 F.2d 1208, 1210- 11 (3d Cir. 1987) (fi ve year dela y in senten cing); United Stat es ex rel. Senk v. Bri erley , 471 F.2d 657,

660 (3d Cir. 1973) (three and a hal f year delay); United Stat

es ex rel. Geisler v. Walters , 510 F.2d 887, 893 (3d Cir. 1975) (st ating in dicta that three years and fo ur mon ths to decide a m otion for a new trialwas an inordi nate del ay suffici ent to obvi ate the exhausti on requ ireme nt). Th e gov ernm ent attem pts to dis tingui sh thi s precedent by not ing that these cases w ere inactive for years (i.e., no he arings , decisio ns, etc.) w hile in Lee’s case there ha s been a great deal of movement. Gov’t. Br. at 28. The same, however, can be s aid for agrand mal seizur e. Unfortunately , in bot h cases, the

movem ent is painful and aimless.

It took th e low er cou rt eighte en months to dis miss Lee’s petition for t he sole p roced ural rea son th at Le e failed to offic ially state w hethe r he inte nded to proceed pro se . It

then took another eighteen months for the Su perior Co urt to vacat e that

order and r emand the petition . Wh en the low er cou rt finally decid ed the petition on th e me rits, it decided t he wrong petition . Due to what appears t o be an adminis trative err or (or a str ing of such er

rors) , the record was not av ailable to the ap pellate c ourt u ntil almo st three years later. It w as no t until another six months late r that the app ellate cou rt rem and ed th e ca se. How ever, the remand was solel y to determ ine w hethe r Lee wa s still in custody . It

then took almost a year for the lo we r co urt to rein state its dis mis sal. As fa r as we k now the appellate co urt sti ll has not rul ed on this dismis sal. The arguments made i n Petitioner’ s ini tial PCRA petition have stillnot beenconsider ed by any court. This ping- pong gam e the sta te cou rt wa s playing w ith Lee ’s petition wo uld alm ost be com ical if Lee ha d not bee n in custody this entire time awaiting res oluti on.

In de ciding wh ether a delay is excessi ve, we do conside r the degr ee of pro gre ss m ade in sta te co urt. See , e.g., Cristin v. Brennan , 281 F.3d 404, 411 (3d C ir. 2002 ) (hold ing tha t a 27 m onth delay w as no t exce ssive g iven th at a hearing was hel d and the pet iti on was
ru le d up on) . I n thi s c as e, how ev er , w e do not beli eve that

any r eal progr ess has been mad e. Re gard less, it is difficult to envision any amount of progress just ify ing an ei ght-y ear del ay i n reachi ng the meri ts of a petiti on.
The government now has the chutzpah t o suggest t

hat Lee shoul d have fir st p re se nt ed th is “ in or di na te d ela y” claim to th e sta te co urt. G ov’ t. Br . at 24

. If o nly fin ite life -spa ns w oul d pe rmit

. Given that

it has thus far

taken ei ght years for the state court to co nsider Lee ’s collateralatta ck, we can only imagine how long it would t ake to deci de whether it is taking too lon g. Th ankf ully, there is no requir ement that

a peti tioner

seeking to excuse t

he exhausti on requir ement first articu late the g roun ds the refor in stat e court. The case upon which the government re lies for that proposition, Schandelmeier

v. Cunningham , 819 F.2d 52, 5 4 (3 d C ir. 19 86) , is ina ppo site. Unlike the present

case, t he substantive basis for Sc hand elme ier’s ha beas claim

wa s, itse lf, the dela y in stat e co urt. Id. at 54 (“His habeas petition . . . is based entirely up on th e dela y in the state court’ s ruling on his moti ons, and t he

con com itant dela y in sen tenc ing him .”). Th us, Schandelmeier

stands f or the unremarkabl e proposi tion t hat the alle gations underlying a habeas petition must fir st be pr esented f or consi derati on in sta te co urt. Id. In the pr esent ca se, how ever, L ee’s p etition is n ot based on the st ate court delay but on other al leged constitutional violations. M oreover, Schandelmeier

was unable to s how that “there wa s no o ppo rtunity for h im to obt ai n r edr es s i n the s tate court sy st em” because “[t ]he only

acti ons taken by Schandelmeier

to obtain stat e reli ef on the grounds assert ed in his federal petition [were] t

he letters that he alle gedly wrote to t

he tri al court .” Id. at 53-54. I n contras t, Lee has done all that

can re ason ably be e xpec ted to p ursue his clai m in stat e court. “[I]t is the legal issues that are to be e xhausted, not the petitioner. ” Bur kett , 826 F.2d at 1218 (quoti ng Walters , 510 F.2 d at 8 93)

. Therefore, we d ecline the gov ernmen t’s invit ation to retur

n Lee’s pet iti on to lega l pu rg ato ry.

To add insult

to inj ury , the government concludes that “appell ant will not be enti tled to reli ef” because “a s of O ctobe r 3, 20 03 ap pellan t will fa il to sati sfythe ‘i n custody ’ requi rement [of §2254(a)] , [as] his sent ence willbe

com plete d.” G ov’ t. Br . at 30 n.10

. Ho we ver, w hat m atters fo r the “in custody ” requir ement is whether Lee was in cu sto dy at the time his habeas petition was filed. See 28 U .S.C. § 225 4; Spencer v. Kemna , 523 U .S. 1, 7 (1 998 ). It is equall y cl ear that being on probation meets the “in cust ody” r equirement forpur pos es o f the hab eas statu te. See

Mabry v. Johnson , 467 U.S . 504 , 507 n.3 (198 4) (priso ner o n par ole rem ains “in custody ” for purpos es of 28 U .S.C . § 225 4); Barry v. Brower , 864 F.2d 294, 296 (3d Cir. 1988) (“We can see no materi al dif

ference bet

ween probati on
an d p ar ol e in ap pl yin g t he ‘in cu sto dy’ requ ireme nt of § 225 4.”). B ecau se it is not dis puted that Lee was on probat ion at the time his feder al habeas petition was fil ed , it i s c lea r th at h e w as “in cu sto dy” for purpose s of the habe as statute. 3 No r is L ee’s app eal m oot

. See Un ited Sta tes v. F rum ento , 552 F.2d 534 (3d Cir. 197 7) ( en banc ). I n Fru me nto , we noted that

“an appeal i s not moot even though the appell ant has bee n release d fro m cu stody or h as serv ed his sentence if he has t aken allpossibl e steps to have the order of conf inement pro mp tly revie we d pr ior to his re leas e.” Id. at 537 , ci ting Sibron v. State of New York , 392 U .S. 40, 5 3 (19 68) (“ [A ] state may not effectively

deny a convict access to it s appell ate courts unt il he ha s been relea sed and then argue that his cas e has been mo oted b y his failure to do wh at it alone prev ented him f

rom doin g.”); cf. Fay v. No ia , 372 U.S. 391, 424 (1963) (“[C ]onv ention al notio ns of finality in crimin al litigation cann ot be p ermitte d to 3 The Supreme Court has expl ained that t he federalhabeas st atute requir es that t he peti tioner

be in cust ody “under the convi ction or

sentence under att ack at the ti me his p etitio n is f iled.” Maleng v. Cook , 490 U.S. 488, 490-91 (1989). The fact t hat Lee is atta cking his origi nal

conv iction a nd se ntenc e but is “ in custody ” as a res ult of a probati on violation is inconsequential. Under Pennsylvania l aw, a viol ation of prob ation is n ot con sidere d a se parate offense but an element of t he origi nal

sen tenc e. See Commonw ealth v . Pierce , 497 Pa. 437, 441, 411 A.2d 1218, 1220 (1982) (“ The imposit ion of tot al confinement upon r evocati on of appell ant’s probati on was not a second punishment for

his robbe ryconvict ion, but was an int egral e lement of t he original cond itional sentence.”); Comm onwealth v. Colding , 482 Pa. 112, 393 A.2d 404 (1978) (hol ding that the revocat ion of probation and the imposit ion of a t erm of tot al confi nement was not viol ative of the doubl e jeopar dy clause, since t

he defendant was gi ven one c ond itional se ntenc e w hich m erely deferred s entenci ng the defendant to a fixed term o f total co nfine men t until such ti me as he viol ated the condit ions of his p rob ation ); 42 Pa. C ons . Sta t. An n. § 9771(b) (“ Upon revocati on the sentencing alte rnati ves avail able t o the

cour t shall be the sam e as w ere av ailable at the time of i niti al sent encing, due

con si der at io n be in g gi vento th e t ime spe nt se rvin g th e or der of p rob ation .”). Th e sa me is tru e un der fed eral l aw

. See United Stat

es v. Hidal

go-Macias , 300 F.3d 281, 285 ( 2d Cir. 2002) (compiling
cases ); United Stat

es v. Thomas , 961 F.2d 1110, 1119 ( 3d Cir. 1992) (“For parole and probati on revocat ions, the Guideline s speci fy t

hat the origi nal sentence and the sent ence imposed aft er probati on is re voked are added and

cou nted as if

they w ere o ne s ente nce .”).defeat t

he manifest

federalpolicy

that federalconsti tuti onal ri ghts of per sonal liber ty shallnot be deni ed without t he fulle st opport

unity for plenaryfederal judicial review.”). 4 In the pr esent ca se,
we find th at Le e took all poss ible step s to have his cl aims promptly r eviewed pri or to his relea se. Whil e it i s true that Lee could have br ought his federalhabeas petition earlier in the ho pe tha t we w ould have excused t

he exhausti on requ ireme nt, the su ccess of su ch efforts

wou ld be me re speculation. M oreover, we cannot fault

Lee for fir st attempti ng to exhaust state r emedies.

In sum mary, L ee ha s sho wn that, at the time he fi led his federalhabeas corpus pet iti on, his PCRA petition had been befo re the P enns ylvania sta te cou rts for alm ost e igh t years wit h no reso lutio n. Under these circumstance s, t he burden

wa s on th e gov ernm ent to d emo nstrate why Lee should c ontinue to wait for Go dot. T he go vern men t has n ot me t this burden. 5 We therefore conc lude that Lee should be r equired to wait no longe r and that the district co urt sho uld en tertain h is petiti on on its merits. 6 See Wojtczak, 800 F.2d at 356. We reverse and r emand for that p urp ose

.

4 In subsequent

cases, we noted that this excepti on to mootness only applie s where a “personalliber ty inter est i s at stake. ” Matter of Kul

p Foundry, Inc. , 691 F.2d 1125, 1129 ( 3d Cir. 1982) (holdi ng that t

he excepti on does not apply to OS HA inspection cas es). There can b e no q uestion , how ever, th at a personalliber

ty inter est i s at st ake in the pre sen t cas e. See Ma tter of Establ ish Inspection of Metal

Bank of America, Inc
., 700 F .2d 910, 91 3 n.3 (3d C ir. 198 3) (“[ A] p erson al liberty intere st such as imprison me nt must be at s take for the Frumento excepti on to apply .”) (em pha sis ad ded ). 5 We note that if w e were to affirm the distric t court a nd th us req uire L ee to exha ust his s tate rem edies, h e w ould never be abl e to fi le a feder al habeas petition because he would not meet t he “in cust ody” r equirement at the time of the filing of h is pe tition

. See 28 U. S. C. §2254(a). This is one reason we have suggeste d that “ when petit ioners have filed habea s actions in fed eral court befo re they ha ve fu lly exhau sted the ir stat e remedies

. . . the feder al act ion should be st ayed” rather than dis missed as p rem atur e. Merritt

v. Blaine , 326 F.3d 157, 170 n.10 ( 3d Cir. 2003) (compiling
cas es).

6 In the e vent th at the d istrict cou rt is in cl in ed t o di smi ss any

of Le e’ s c la ims on proceduralgrounds, we strongl y ur ge that, if po ssible, it also analyze a nd ru le on the meri ts of t

hose claims so that Lee ’s unfortun ate ex perien ce in sta te

cou rt is n ot re pea ted h ere.