2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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.

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 PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

______________

No: 02-3497

______________

KENNETH LEE,

 Appellant

 v.

WILLIAM STICKMAN;

STEPHEN ZAPPALA, JR.;

MICHAEL FISHER

 

Appeal from the United States District

Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 02-cv-01013)

District Judge: Honorable Robert J.

Cindrich

______________________

Argued on December 18, 2003

Before: ROTH, MCKEE and

CUDAHY* , Circuit Judges

(Opinion filed: February 11, 2004)

__________________

*The Honorable Richard D.

Cudahy, Circuit Judge for the United

States Court of Appeals for the Seventh

Circuit, sitting by designation.

Stephen J. Binhak, Esquire (Argued)

3103 Philmont Avenue

Huntingdon Valley, PA 19006

Counsel for Appellant

Ronald M. Wabby, Jr., Esquire (Argued)

401 Allegheny County Courthouse

Pittsburgh, PA 15219

Counsel for Appellees

 

O P I N I O N

 

CUDAHY, Circuit Judge

 This is an appeal by Kenneth Lee

from an order of the United States

District Court for the Western District of

Pennsylvania dismissing his petition for a

writ of habeas corpus on the ground that

he had failed to exhaust available state

court remedies. Lee contends that we

must excuse the exhaustion requirement

because of the eight-year delay in his

post-conviction collateral proceedings in

the Pennsylvania state courts. We agree. 

We therefore reverse the order of the

district court and remand the case for

consideration of Lee’s habeas petition on

the merits. 

I. 

If William Shakespeare were to

summarize Lee’s experience with the

Pennsylvania state courts, he might

describe it as “a tale told by an idiot, full

of sound and fury, signifying nothing.” 
William Shakespeare, Macbeth, act 5, sc.

5., lines 26-28. The epic begins on April

30, 1992, when a jury convicted Lee of

possession of cocaine, possession with

intent to deliver cocaine and resisting

arrest. On June 25, 1992, Lee was

sentenced by the Court of Common Pleas

of Allegheny County to 1.5 - 5 years

imprisonment followed by five years of

probation. After an unsuccessful direct

appeal, Lee filed a pro se petition under

the Pennsylvania Post Conviction Relief

Act (“PCRA”) on February 13, 1995. 42

Pa. Cons. Stat. Ann. § 9541 et seq. In his

PCRA petition, Lee raised five

arguments: (1) the trial judge abused his

discretion in denying a motion to

suppress; (2) the trial judge wrongfully

denied a motion to arrest judgment; (3)

one of the jurors was biased because of

his employment with the Allegheny

County Court of Common Pleas; (4) the

evidence did not support a conviction;

and (5) the trial judge wrongfully crossexamined Lee in front of the jury. Most

of these arguments have never been

considered on the merits by any court.

On February 28, 1995, a PCRA

counsel was appointed for Lee. On May

11, 1995, after hearing nothing from the

court, Lee filed a Petition For Writ of

Habeas Corpus in the same court. This

petition was denied because the PCRA

petition was pending. On June 1, 1995,

PCRA counsel requested that he be

relieved as counsel since Lee wanted to

represent himself. This request was

granted. On June 6, 1995, the court

ordered Lee to provide notice of whether

he intended to pursue his PCRA petition

pro se. The order noted that if Lee failed

to provide notice within thirty days, the

petition would be dismissed. 

For reasons unknown to this

Court, Lee did not respond to this order. 

In January 1996, Lee was still awaiting a

decision on his PCRA petition, so he

filed a Motion for Relief / Disposition

Without Hearing. In this application,

Lee reiterated the jury bias claim, but did

not reassert the other claims he had made

in the PCRA petition. On February 25,

1996, the court dismissed Lee’s Motion

for Relief / Disposition Without Hearing,

explaining that Lee had waived the right

to challenge the juror by not raising the

issue earlier. On August 16, 1996,

eighteen months after Lee submitted the

PCRA petition, the court dismissed that

petition for the sole reason that Lee had

failed to indicate whether he would

proceed pro se. On August 25, 1996,

Lee appealed this dismissal. 

 On March 17, 1998, eighteen

months after this appeal, the Superior

Court of Pennsylvania vacated the

August 16, 1996 Order of the lower court

because the Court of Common Pleas had

failed to provide notice of intent to

dismiss the PCRA petition, notice of the

reasons for dismissal and an opportunity

for Lee to respond before dismissal. The

Superior Court also noted that Lee had

made clear his intent to proceed pro se

long before the Court of Common Pleas

dismissed his petition. App. Vol. II at

114 n.1.1 

 

1

 The appendix annexed to Petitioner’s

brief in this case will be designated as
On August 14, 1998, five months

later, the Court of Common Pleas issued

a new opinion in response to the ruling

of the Superior Court. This new opinion,

however, mistakenly did not address the

PCRA petition, but instead addressed

only the Motion for Relief / Disposition

Without Hearing, which it had already

dismissed. Nonetheless, the court

concluded its opinion by ordering that

the PCRA petition be dismissed within

twenty days unless Lee could show cause

why the court should rule otherwise. 

Within that deadline, Lee filed a

response in which he reiterated the five

claims in his original PCRA petition and

also added an ineffective assistance of

counsel claim. On September 23, 1998,

the trial court dismissed the PCRA

petition without further comment. 

Lee filed a timely appeal on

October 17, 1998. The case was not

submitted for a panel review in the

Superior Court until almost three years

later, in September of 2001. According

to the Superior Court the delay occured

because “[i]nexplicably, the trial court

record was not . . . filed in this Court

until April 2001.” Id. at 201. On March

20, 2002, almost six months after the

case had been submitted for review, the

Superior Court issued its decision. The

Superior Court noted that “[t]he

procedural history in this case is

torturous” and called it “an ongoing

odyssey of litigation.” Id. at 200-01. 

Nonetheless, instead of deciding the

PCRA petition on the merits or directing

the Court of Common Pleas to do so, the

Superior Court remanded the case to the

Court of Common Pleas to determine

whether Lee was still serving his

sentence.

2

On June 25, 2002, Lee filed a

Third Amendment to the PCRA petition,

attempting to highlight the fact that no

court had addressed his claims. The

Commonwealth moved to dismiss this

application contending that Lee had

served his sentence in full. On July 19,

2002, the Commonwealth withdrew this

motion when it realized that Lee was still

serving his sentence. On February 25,

2003, almost a year after the remand, the

Court of Common Pleas reinstated its

September 23, 1998 Order. Lee appealed

this decision to the Superior Court,

which has not yet ruled on his appeal. 

On June 5, 2002, Lee filed a

Petition for Writ of Habeas Corpus in the

United States District Court. In that

petition, Lee alleged ineffective

assistance of counsel at the trial and

appellate level, denial of due process,

denial of fair trial, denial of equal

protection and prosecutorial misconduct. 

Lee also filed a brief explaining his

failure to exhaust state remedies. On

September 3, 2002, the U.S. District

Court dismissed the habeas petition for

failure to exhaust state remedies. At the

time of this appeal, Lee was serving

probation which was scheduled to end on

“App.”

 

2

 On May 1, 2002, Lee petitioned the

Superior Court for additional relief, but

that petition was denied. 
October 10, 2003. 

II. 

Under ordinary circumstances, a

federal court may not entertain a petition

for a writ of habeas corpus unless the

petitioner has first presented each of his

claims to the state’s highest tribunal. See

28 U.S.C. §§ 2254 (b), (c); Rose v.

Lundy, 455 U.S. 509, 515-16 (1982). 

Exhaustion, however, is not a

jurisdictional matter but a matter of

comity. See Story v. Kindt, 26 F.3d 402,

405 (3d Cir. 1994). Federal courts need

not defer to the state judicial process

when there is no appropriate remedy at

the state level or when the state process

would frustrate the use of an available

remedy. Id.; 28 U.S.C. § 2254(b)(1)(B). 

We have held 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). The existence of an

inordinate delay does not automatically

excuse the exhaustion requirement, but it

does shift the burden to the state to

demonstrate why exhaustion should still

be required. Story, 26 F.3d at 405

(noting that this burden is “difficult to

meet”).

In the past, we have excused the

exhaustion requirement for petitioners

who have undergone significantly shorter

delays than presented here. Wojtczak,

800 F.2d 353, 356 (33 month delay

between filing PCRA and habeas

petitions); Burkett v. Cunningham, 826

F.2d 1208, 1210-11 (3d Cir. 1987) (five

year delay in sentencing); United States

ex rel. Senk v. Brierley, 471 F.2d 657,

660 (3d Cir. 1973) (three and a half year

delay); 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 a motion for a

new trial was an inordinate delay

sufficient to obviate the exhaustion

requirement). The government attempts

to distinguish this precedent by noting

that these cases were inactive for years

(i.e., no hearings, decisions, etc.) while in

Lee’s case there has been a great deal of

movement. Gov’t. Br. at 28. The same,

however, can be said for a grand mal

seizure. Unfortunately, in both cases, the

movement is painful and aimless.

It took the lower court eighteen

months to dismiss Lee’s petition for the

sole procedural reason that Lee failed to

officially state whether he intended to

proceed pro se. It then took another

eighteen months for the Superior Court

to vacate that order and remand the

petition. When the lower court finally

decided the petition on the merits, it

decided the wrong petition. Due to what

appears to be an administrative error (or

a string of such errors), the record was

not available to the appellate court until

almost three years later. It was not until

another six months later that the

appellate court remanded the case. 

However, the remand was solely to

determine whether Lee was still in

custody. It then took almost a year for

the lower court to reinstate its dismissal. 

As far as we know the appellate court

still has not ruled on this dismissal. The

arguments made in Petitioner’s initial

PCRA petition have still not been
considered by any court. This ping-pong

game the state court was playing with

Lee’s petition would almost be comical if

Lee had not been in custody this entire

time awaiting resolution.

 

In deciding whether a delay is

excessive, we do consider the degree of

progress made in state court. See, e.g.,

Cristin v. Brennan, 281 F.3d 404, 411

(3d Cir. 2002) (holding that a 27 month

delay was not excessive given that a

hearing was held and the petition was

ruled upon). In this case, however, we

do not believe that any real progress has

been made. Regardless, it is difficult to

envision any amount of progress

justifying an eight-year delay in reaching

the merits of a petition.

 

The government now has the

chutzpah to suggest that Lee should have

first presented this “inordinate delay”

claim to the state court. Gov’t. Br. at 24. 

If only finite life-spans would permit. 

Given that it has thus far taken eight

years for the state court to consider Lee’s

collateral attack, we can only imagine

how long it would take to decide whether

it is taking too long. Thankfully, there is

no requirement that a petitioner seeking

to excuse the exhaustion requirement

first articulate the grounds therefor in

state court. The case upon which the

government relies for that proposition,

Schandelmeier v. Cunningham, 819 F.2d

52, 54 (3d Cir. 1986), is inapposite. 

Unlike the present case, the substantive

basis for Schandelmeier’s habeas claim

was, itself, the delay in state court. Id. at

54 (“His habeas petition . . . is based

entirely upon the delay in the state

court’s ruling on his motions, and the

concomitant delay in sentencing him.”). 

Thus, Schandelmeier stands for the

unremarkable proposition that the

allegations underlying a habeas petition

must first be presented for consideration

in state court. Id. In the present case,

however, Lee’s petition is not based on

the state court delay but on other alleged

constitutional violations. Moreover,

Schandelmeier was unable to show that

“there was no opportunity for him to

obtain redress in the state court system”

because “[t]he only actions taken by

Schandelmeier to obtain state relief on

the grounds asserted in his federal

petition [were] the letters that he

allegedly wrote to the trial court.” Id. at

53-54. In contrast, Lee has done all that

can reasonably be expected to pursue his

claim in state court. “[I]t 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). 

Therefore, we decline the government’s

invitation to return Lee’s petition to legal

purgatory.

To add insult to injury, the

government concludes that “appellant

will not be entitled to relief” because “as

of October 3, 2003 appellant will fail to

satisfy the ‘in custody’ requirement [of

§2254(a)], [as] his sentence will be

completed.” Gov’t. Br. at 30 n.10. 

However, what matters for the “in

custody” requirement is whether Lee was

in custody at the time his habeas petition

was filed. See 28 U.S.C. § 2254; Spencer 

v. Kemna, 523 U.S. 1, 7 (1998). It is

equally clear that being on probation

meets the “in custody” requirement for
purposes of the habeas statute. See

Mabry v. Johnson, 467 U.S. 504, 507 n.3

(1984) (prisoner on parole remains “in

custody” for purposes of 28 U.S.C. §

2254); Barry v. Brower, 864 F.2d 294,

296 (3d Cir. 1988) (“We can see no

material difference between probation

and parole in applying the ‘in custody’

requirement of § 2254.”). Because it is

not disputed that Lee was on probation at

the time his federal habeas petition was

filed, it is clear that he was “in custody”

for purposes of the habeas statute.3 

Nor is Lee’s appeal moot. See

United States v. Frumento, 552 F.2d 534

(3d Cir. 1977) (en banc). In Frumento,

we noted that “an appeal is not moot

even though the appellant has been

released from custody or has served his

sentence if he has taken all possible steps

to have the order of confinement

promptly reviewed prior to his release.”

Id. at 537, citing Sibron v. State of New

York, 392 U.S. 40, 53 (1968) (“[A] state

may not effectively deny a convict access

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

alone prevented him from doing.”); cf.

Fay v. Noia, 372 U.S. 391, 424 (1963)

(“[C]onventional notions of finality in

criminal litigation cannot be permitted to

 

3

 The Supreme Court has explained

that the federal habeas statute requires

that the petitioner be in custody “under

the conviction or sentence under attack at

the time his petition is filed.” Maleng v.

Cook, 490 U.S. 488, 490-91 (1989). The

fact that Lee is attacking his original

conviction and sentence but is “in

custody” as a result of a probation

violation is inconsequential. Under

Pennsylvania law, a violation of

probation is not considered a separate

offense but an element of the original

sentence. See Commonwealth v. Pierce,

497 Pa. 437, 441, 411 A.2d 1218, 1220

(1982) (“The imposition of total

confinement upon revocation of

appellant’s probation was not a second

punishment for his robbery conviction,

but was an integral element of the

original conditional sentence.”);

Commonwealth v. Colding, 482 Pa. 112,

393 A.2d 404 (1978) (holding that the

revocation of probation and the

imposition of a term of total confinement

was not violative of the double jeopardy

clause, since the defendant was given

one conditional sentence which merely

deferred sentencing the defendant to a

fixed term of total confinement until

such time as he violated the conditions of

his probation); 42 Pa. Cons. Stat. Ann. §

9771(b) (“Upon revocation the

sentencing alternatives available to the

court shall be the same as were available

at the time of initial sentencing, due

consideration being given to the time

spent serving the order of probation.”). 

The same is true under federal law. See

United States v. Hidalgo-Macias, 300

F.3d 281, 285 (2d Cir. 2002) (compiling

cases); United States v. Thomas, 961

F.2d 1110, 1119 (3d Cir. 1992) (“For

parole and probation revocations, the

Guidelines specify that the original

sentence and the sentence imposed after

probation is revoked are added and

counted as if they were one sentence.”). 
defeat the manifest federal policy that

federal constitutional rights of personal

liberty shall not be denied without the

fullest opportunity for plenary federal

judicial review.”).4 In the present case,

we find that Lee took all possible steps to

have his claims promptly reviewed prior

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

been before the Pennsylvania state courts

for almost eight years with no resolution. 

Under these circumstances, the burden

was on the government to demonstrate

why Lee should continue to wait for

Godot. The government has not met this

burden.5 We therefore conclude that Lee

should be required to wait no longer and

that the district court should entertain his

petition on its merits.6 See Wojtczak, 800

F.2d at 356. We reverse and remand for

that purpose. 

 

4

 In subsequent cases, we noted that

this exception to mootness only applies

where a “personal liberty interest is at

stake.” Matter of Kulp Foundry, Inc.,

691 F.2d 1125, 1129 (3d Cir. 1982)

(holding that the exception does not

apply to OSHA inspection cases). There

can be no question, however, that a

personal liberty interest is at stake in the

present case. See Matter of Establish

Inspection of Metal Bank of America,

Inc., 700 F.2d 910, 913 n.3 (3d Cir.

1983) (“[A] personal liberty interest such

as imprisonment must be at stake for the

Frumento exception to apply.”)

(emphasis added). 

 

5

 We note that if we were to affirm

the district court and thus require Lee to

exhaust his state remedies, he would

never be able to file a federal habeas

petition because he would not meet the

“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

suggested that “when petitioners have

filed habeas actions in federal court

before they have fully exhausted their

state remedies . . . the federal action

should be stayed” rather than dismissed

as premature. Merritt v. Blaine, 326 F.3d

157, 170 n.10 (3d Cir. 2003) (compiling

cases). 

 

6

 In the event that the district court is

inclined to dismiss any of Lee’s claims

on procedural grounds, we strongly urge

that, if possible, it also analyze and rule

on the merits of those claims so that

Lee’s unfortunate experience in state

court is not repeated here.