Keller v. Petsock

• Decision Date: 11 August 1988
• Docket Number: No. 87-3127,87-3127
• Citation: 853 F.2d 1122
• Parties: John KELLER v. George PETSOCK, Warden; Attorney General of Commonwealth of Pennsylvania; District Attorney, Allegheny County. Appeal of John KELLER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1122

853 F.2d 1122

John KELLER v. George PETSOCK, Warden; Attorney General of Commonwealth of

Pennsylvania; District Attorney, Allegheny County.

Appeal of John KELLER, Appellant.

No. 87-3127.

United States Court of Appeals, Third Circuit.

Argued Jan. 11, 1988.

Decided Aug. 11, 1988.

Frank Arcuri (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.

Michael W. Streily (argued), Allegheny County District Attorney's Office, Pittsburgh, Pa., for appellee.

Before HIGGINBOTHAM and BECKER, Circuit Judges, and SHAPIRO, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

In this appeal from the dismissal of a petition for writ of habeas corpus challenging a state conviction, 28 U.S.C. Sec. 2254 (1982), petitioner John Keller claims that he was denied the right to trial by an impartial jury. Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (per curiam ); Turner v. Louisiana, 379 U.S. 466, 467-71, 85 S.Ct. 546, 547-49, 13 L.Ed.2d 424 (1965). We will vacate the order of the district court dismissing the petition, and remand this case to the district court for an evidentiary hearing. We will, in addition, deny the petition as to one of the claims presented.

I.

Keller was convicted by a jury in the Court of Common Pleas of Allegheny County, Pennsylvania, of rape, involuntary deviate sexual intercourse and simple assault, on June 11, 1976. On June 21, his attorney wrote a letter to the trial judge informing him that one of the jurors had visited the attorney that day. This juror had informed the attorney that

she and four other jurors did not agree with the verdict but did not realize at the time of the poll that they could disagree.... She also indicated that, during the course of deliberations, there was a request to see [the judge]. The tipstaff advised [the jurors] that they could not see [the judge]; they were not advised that they could direct an inquiry to [the judge].

Letter from H. David Rothman, Esq. to the Honorable Joseph H. Ridge (June 21, 1976), reprinted in Appendix ("App.") at 353. Counsel then filed a post-trial application to vacate the verdict, which alleged that the jurors' failure to understand the polling procedures, and the tipstaff's failure to inform the jury that it "could have communicated with the [trial judge] in writing," deprived Keller of "a fair trial, due process, and equal protection of the law." App. at 71. He requested a hearing and moved to vacate the verdict. At the sentencing on July 6, 1976, the trial court denied this motion without a hearing, id. at 80, and sentenced Keller to a term of two and a half to five years. Id. at 87.

On direct appeal, the Superior Court affirmed the sentence and conviction without opinion. App. at 370. The Supreme Court of Pennsylvania denied allocatur on August 9, 1978. Id. at 390. A request for reconsideration of this decision was denied by the Supreme Court on September 28, 1978. Id. at 356.

Keller then pursued claims through the procedures set forth by the Pennsylvania Post-Conviction Hearing Act ("PCHA"). Pa.Cons.Stat. tit. 42, Secs. 9541-9549 (Purdon 1982) (current version at 1988 Pa.Legis.Serv. 229-33 (Purdon)). He filed his first PCHA petition pro se on December 28, 1978. The court appointed counsel and returned the petition to counsel for more specific pleading. Keller filed a second PCHA petition pro se in January 1979. App. at 120. This petition was also referred to counsel. Id. at 121. However, at the time Keller filed his first petition for writ of habeas corpus in federal district court on November 6, 1984, App. at 417-429, neither of the PCHA proceedings had progressed further. ¹ Keller's first habeas corpus petition asserted numerous grounds for relief, many of which had not been presented to the state courts. App. at 417-29. The district court dismissed this first petition for failure to exhaust state remedies. App. at 439-40. This court denied Keller's subsequent petition for certificate of probable cause on December 27, 1985, id. at 469, and the Supreme Court denied certiorari on April 30, 1986. Id. at 470.

By the time Keller filed the instant petition for writ of habeas corpus in federal district court on July 28, 1986, the trial court had denied both the PCHA petitions (which had apparently been consolidated), and an appeal was pending before the Pennsylvania Superior Court. Finding that Keller's second habeas petition contained only exhausted claims of the denial of a trial by a fair and impartial jury, the federal magistrate who reviewed the case nevertheless recommended dismissing the petition. App. at 472. The magistrate stated that "considerations of comity would appear to dictate that this court not hear the petition on the merits while petitioner's [PCHA] appeal is pending before the Superior Court of Pennsylvania." Id. at 473. After receiving Keller's objections to the magistrate's report, the district court adopted it and dismissed the habeas petition without prejudice on January 29, 1987. Keller v. Petsock, No. 86-1676, slip op. at 1-2 (W.D.Pa. Jan. 29, 1987), reprinted in App. at 487-88. Keller then took the instant appeal.

The PCHA proceedings continued to wind their way to an end. On December 9, 1986, the Pennsylvania Superior Court, after noting the "reprehensible delays which occurred in this case," App. at 477, affirmed the denial of the PCHA petition. ² Id. Keller then filed a petition for allocatur to the Supreme Court of Pennsylvania on January 8, 1987. This petition was denied on August 6, 1987. ³

II.

We must decide three matters: (1) whether state court remedies with respect to Keller's legal claims have been exhausted; ⁴ (2) whether Keller's claims merit further fact-finding; and (3) what the appropriate fact-finding court is.

A. Exhaustion

Before us are four separate claims of the denial of the rights to trial by a fair and impartial jury. We agree with the district court's determination that two of the four claims have been exhausted: (1) the tipstaff's remark to the jury that the judge could not be seen, and (2) the tipstaff's failure to inform the jury of how the jury could communicate with the judge. Keller exhausted these issues by giving, "in his petition for allocatur, ... the highest Pennsylvania state court the opportunity to correct [the] alleged constitutional infirmity in his criminal conviction[ ]." Chaussard v. Fulcomer, 816 F.2d 925, 928 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987) (citation omitted). ⁵ See also Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir.1984) ("It is well-settled that a claim raised in state court at trial and on direct appeal satisfies the exhaustion requirement and that a habeas corpus petitioner need not also raise the claim in a collateral attack before proceeding in federal court.") (citation omitted).

Keller's third claim is one not raised in his pro se petition for writ of habeas corpus, but rather in the brief to this Court, namely that

the trial court's actions in informing the jury that it would not entertain questions during their deliberations constitutes reversible error and deprived Keller of due process of law.

Appellant's Brief at 19. Keller's petition for allocatur to the Pennsylvania Supreme Court contained a similar but not identical claim--that "[a]t no time during the Court's charge was the jury informed as to how they could direct questions to the Court during their deliberation." App. at 374. It thus appears that Keller framed this claim to the Pennsylvania Supreme Court as an error of omission, whereas to this court he argues that the trial judge affirmatively and erroneously informed the jury that he would not entertain questions during deliberations.

Although the two claims appear to be substantially the same, their legal ramifications differ enormously. In determining whether a defendant was deprived of a fair and impartial jury, the claim that the trial judge affirmatively refused to entertain questions from the jury could itself provide a possible basis for relief based on "pressures or partiality on the part of the court." Government of the Virgin Islands v. Gereau, 523 F.2d 140, 150 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); cf. Truscott v. Chaplin, 403 F.2d 644 (3d Cir.1968) (inquiry by judge whether jury is close to verdict not reversible error). By contrast, if the trial judge's charge simply omitted the practical information on how the judge could be contacted by the jurors, then it bears only on how prejudicial the tipstaff's later remarks to the jurors were; it would not, by itself, justify habeas relief. While the " 'method of analysis' " of either claim is similar, Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (in banc) (quoting Stanley v. Illinois, 405 U.S. 645, 658 n. 10, 92 S.Ct. 1208, 1216, 31 L.Ed.2d 551 (1972)), their factual premises, and thus their legal significance in the sixth amendment analysis, are quite different. See Zicarelli, 543 F.2d at 473 (sixth amendment claim based on venue is not equivalent to sixth amendment claim based on fair cross-section analysis); but cf. Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.) (substance of due process claim presented to state court "virtually indistinguishable" from federal claim), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980).

The legal claim before this Court is not the same as the one presented to the state courts, and we thus find that it has not been exhausted. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Counsel for Keller withdrew at oral argument this unexhausted claim. Transcript of argument at 32; see Dooley v. Petsock, 816 F.2d 885, 888 n. 1 (3d Cir.) (habeas petitioner permitted by court to remove unexhausted claim, thus leaving only exhausted claims in petition), cert. denied, --- U.S. ----, 108 S.Ct. 182, 98...