Hill v. Zimmerman

• Decision Date: 09 June 1983
• Docket Number: No. 82-3345,82-3345
• Citation: 709 F.2d 232
• Parties: Clyde Eugene HILL, Appellant, v. Charles ZIMMERMAN, The Attorney General of Pennsylvania, and District Attorney for Dauphin County, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 232

709 F.2d 232

Clyde Eugene HILL, Appellant, v. Charles ZIMMERMAN, The Attorney General of Pennsylvania, and District Attorney for Dauphin County, Appellee.

No. 82-3345.

United States Court of Appeals Third Circuit.

Argued April 28, 1983.

Decided June 9, 1983.

Carl A. Solano (argued), Schnader, Harrison, Lewis & Segal, Philadelphia, Pa., for appellant.

Katherene E. Holtzinger (argued), Richard A. Lewis, William A. Behe, Dauphin County Dist. Attorney's Office, Harrisburg, Pa., for appellee.

Before WEIS and HIGGINBOTHAM, Circuit Judges, and BROTMAN, District Judge. ^*

OPINION OF THE COURT

WEIS, Circuit Judge.

In this habeas corpus case, a state prisoner alleges that the trial court committed constitutional error in its jury charge on presumption of malice and the burden of proof on insanity. After finding exhaustion of state remedies, the district court denied relief on the merits of the insanity issue and held there was a procedural default on the malice claim. ¹ We conclude that the malice instruction issue was never fairly presented to the state courts. Accordingly, we vacate the judgment of the district court and direct dismissal of the habeas petition so that the malice claim may be pursued in state forums.

Petitioner was convicted on two counts of second-degree murder in a Pennsylvania state court in 1972. He was sentenced to two consecutive terms of 10 to 20 years each. The Pennsylvania Supreme Court affirmed on direct appeal, the only issue being the propriety of the consecutive sentences. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973).

In 1977, petitioner initiated a pro se proceeding in the state trial court under the Post Conviction Hearing Act, Pa.Stat.Ann. tit. 19, Secs. 1180-1 to 1180-14 (Purd.Supp.1982) (current version at 42 Pa.Con.Stat.Ann. Secs. 9541-9551 (Purd.1982)). Counsel other than trial counsel was appointed, and a hearing conducted. Petitioner raised five contentions:

1. the change in Pennsylvania law placing the burden of proving sanity on the prosecution should be applied retroactively to his case;

2. & 3. the trial court erred in admitting certain opinions by the state's psychiatric expert;

4. admission of a police officer's testimony was error; and

5. the state had failed to prove the petitioner was legally sane.

All of these contentions were rejected by the trial court, and the case was next reviewed and affirmed by a special panel of the Pennsylvania Superior Court. The state supreme court granted allocatur.

In his brief in the supreme court, petitioner listed as the "Statement of Question Involved" the following: "Is a criminal defendant, having raised the issue of insanity upon trial for murder, entitled to reversal of his conviction based upon erroneous jury instruction as to the burden of proof with respect to insanity where no objection thereto was raised at trial?"

The argument was divided into three parts. Point I was that the trial judge had erred in instructing the jury that a defendant had the burden of proving insanity, a doctrine in effect at the time of trial but changed thereafter. ² The second point was that the United States Constitution mandated the then-current Pennsylvania rule that the state was required to prove sanity beyond a reasonable doubt once the defendant produced evidence of insanity. In the course of this argument, petitioner cited New York v. Patterson, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), in addition to a number of state court opinions. ³

Petitioner began his argument on point II by asserting that Mullaney established a federal constitutional ban on shifting the burden of proof on insanity to a defendant. In discussing Patterson, petitioner noted that "Pennsylvania, unlike New York, incorporates malice as an element of the crime of Murder," and quoted from two state court cases defining malice. Following that, petitioner wrote:

"Insanity, no less than self-defense, NEGATES THE ELEMENT OF MALICE. If a jury has reasonable doubt as to an accused's sanity, it perforce has reasonable doubt as to the existence of an essential element of the crime of murder. It follows, therefore, that in jurisdictions, such as Pennsylvania, where malice constitutes an element of the crime charged, an accused's sanity, once placed in issue, must be established by the prosecution beyond a reasonable doubt." (emphasis in original).

Point III of the brief argued that petitioner should not be found to have waived his right to retroactive application of the new Pennsylvania rule on proof of insanity because he did not object at trial. Petitioner contended that fundamental fairness "condemns a finding of waiver grounded upon failure to assert a nonexistent right."

The Pennsylvania Supreme Court, being evenly divided, affirmed the denial of postconviction relief. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980). Justice Nix, joined by one other justice in an opinion announcing the judgment of the court, concluded that by failing to object to the charge on insanity at trial, petitioner had failed to preserve the burden of proof issue for appellate review. A third justice concurred in this result, but did not join the opinion. The three dissenting justices joined in an opinion by Justice Roberts asserting that petitioner should not have been required to object in anticipation of a change in the law on burden of proof. Neither opinion referred to any alleged error at the trial other than the charge on the insanity defense.

Petitioner then sought habeas corpus relief in the district court, contending that the jury charge on the burden of proof for insanity violated the due process clause of the fourteenth amendment. In the "Petitioner's Brief in Opposition to Commonwealth's Answer," he also raised, for the first time, the contention that the state trial court had given an erroneous instruction on malice.

The brief cited the following portion of the charge: "He who uses a deadly weapon without a sufficient cause or provocation must be presumed to do it wickedly or from a bad heart." (emphasis added). As with the insanity defense instruction, the charge on malice was in accord with Pennsylvania law at the time, see Commonwealth v. O'Neal, 441 Pa. 17, 271 A.2d 497 (1970), and no objection was made at trial. The brief argued "the presumption of malice given to the state unless Hill could prove his legal insanity to show sufficient cause for use of a deadly weapon did shift the burden upon a necessary element of the crimes charged and violated due process, In re Winship, 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] (1970)."

The district court dismissed the petition. The court recognized that "when a procedural default at trial has barred an inmate from obtaining adjudication of his claim in the state appellate courts, federal habeas relief is not available absent a showing of 'cause' and 'actual prejudice.' Wainwright v. Sykes, 433 U.S. 72 [97 S.Ct. 2497, 53 L.Ed.2d 594] (1977)." 542 F.Supp. at 703. As to the insanity defense instruction, however, the court found no deprivation of a federal right and, having reasoned that " '[i]t is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts,' " id. (quoting Engle v. Isaac, 456 U.S. 107, 120 n. 19, 102 S.Ct. 1558, 1567 (1982)), denied the writ as to this ground.

The district court then stated that "[p]etitioner's other claim in this federal habeas action relates to the trial court's instruction on the element of malice." 542 F.Supp. at 704. Although finding that the argument stated "at least a plausible constitutional claim," the court concluded that since petitioner had not demonstrated adequate cause for his failure to object to the instruction at trial, Sykes barred consideration. The district court also found that the alleged erroneous instruction on malice had been presented for review to the state supreme court.

On appeal to this court, ⁴ petitioner argues, in addition to other contentions, that the instruction on malice made "use of a gun conclusive proof of the distinct element of malice aforethought without independent satisfaction of the Commonwealth's burden on the issue." Petitioner contends the charge is contrary to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), because it could mislead a reasonable juror as to the conclusiveness of the presumption or the prosecution's burden on the element of malice. ⁵

It is well settled that ordinarily a state prisoner seeking habeas corpus relief in the federal courts must first exhaust available state judicial remedies. That doctrine has been incorporated into the federal habeas corpus statute, 28 U.S.C. Secs. 2254(b) and (c), and has its foundation in federal-state comity concerns. See Duckworth v. Serrano, 454 U.S. 1, 3-4, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam).

In Picard v. Conner, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the Supreme Court emphasized that "the federal claim must be fairly presented to the state courts." Indeed, the petitioner must "present the state courts with the same claim that he urges upon the federal courts." Id. at 276, 92 S.Ct. at 512. It is not enough that the petitioner presents the same facts. He must provide the state court with "an opportunity to apply controlling legal principles ... bearing upon [the] constitutional claim," id. at 277, 92 S.Ct. at 513, and call it to the attention of the court. In a later case, the Court said that the "method of analysis" advanced in the federal proceeding must have been "readily available to the state court." Stanley v. Illinois, 405 U.S. 645, 658 n. 10, 92 S.Ct. 1208, 1216 n. 10, 31 L.Ed.2d 551 (1972).

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