Bond v. Fulcomer

• Citation: 864 F.2d 306
• Decision Date: 03 January 1989
• Docket Number: No. 88-1279,88-1279
• Parties: BOND, Richard C., Appellant, v. FULCOMER, Thomas A., Superintendent, and the Attorney General of the State of Pennsylvania and the District Attorney of Philadelphia County.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 306

864 F.2d 306

BOND, Richard C., Appellant, v. FULCOMER, Thomas A., Superintendent, and the Attorney General of the State of Pennsylvania and the District Attorney of Philadelphia County.

No. 88-1279.

United States Court of Appeals Third Circuit.

Argued Nov. 15, 1988.

Decided Jan. 3, 1989.

Janet W. Mason (argued), Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, Philadelphia, Pa., for appellant.

Elizabeth J. Chambers (argued), Chief, Federal Litigation, Gaele McLaughlin Barthold, Deputy Dist. Atty., William G. Chadwick, Jr., First Asst. Dist. Atty., Ronald D. Castille, Dist. Atty., Philadelphia, Pa., for appellees.

Before HIGGINBOTHAM and MANSMANN, Circuit Judges, and DUMBAULD, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Richard Bond, a state prisoner, appeals the dismissal of a federal habeas corpus petition filed pursuant to 28 U.S.C. Sec. 2254d(1) (1982). The district court, adopting the report and recommendation of the U.S. Magistrate, concluded that since Bond failed to meet the exhaustion of state remedies requirement of Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1982); 28 U.S.C. Sec. 2254(b), (c), he was not eligible for federal relief.

We conclude that Bond's petition for allocatur to the Pennsylvania Supreme Court, albeit untimely and denied without comment, constituted compliance with the exhaustion requirement. We therefore find that the district court erred on this issue. We also conclude that the Pennsylvania Supreme Court's denial of Bond's allocatur petition was on procedural grounds which triggers an analysis of whether the procedural default effected a waiver of Bond's claim pursuant to Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Because Bond alleges that the "cause" for the procedural default was ineffectiveness of counsel, we dismiss the petition, consistent with our recent decision in Neely v. Zimmerman, 858 F.2d 144 (3d Cir.1988), without prejudice for Bond to pursue this issue in the state courts under the Pennsylvania Post-Conviction Relief Act if he so desires.

I.

On October 29, 1984, Richard Bond appeared before the Court of Common Pleas of Philadelphia County for a violation of probation hearing. The hearing was conducted over a three day period, at the conclusion of which his probation was revoked and a six to twenty year state sentence was imposed. The reason for the length of the hearing resulted from Bond's allegations that he had not previously received the required Gagnon I hearing. ¹ The Common Pleas Court, however, found as a fact that such a hearing was scheduled, that Bond received written notice of the hearing, that Bond was brought to the holding cell in the courthouse in anticipation of the hearing, that the sheriff went to bring Bond to the courtroom and called for Bond and that Bond failed to respond to his name. The court thereby concluded that Bond had voluntarily waived his presence. Because of Bond's voluntary waiver, the court decided that the Gagnon I detainer hearing held in absentia satisfied the requirements of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Bond, through counsel, appealed the judgment of sentence to the Superior Court of Pennsylvania claiming as error the denial of the Gagnon I hearing and the trial court's alleged failure to state adequately on the record the reasons for the sentence imposed. The Pennsylvania Superior Court concluded that because Bond did not complain about the lack of the Gagnon I hearing either when the probation detainer was placed against him or in his application to remove the probation detainer that he was not entitled to release from custody or a new probation violation hearing. The court also found that the trial court had adequately stated on the record the reasons for the sentence imposed. A per curiam order affirming the judgment of sentence was filed on July 24, 1986.

Six months later, on January 21, 1987, Bond inquired of the Prothonotary of the Supreme Court of Pennsylvania whether a petition for allocatur had been filed on his behalf. Bond was informed that no such appeal had been filed. In March of that year, Bond's court-appointed counsel sent Bond the following letter:

This is in response to your letter dated March 2, 1987 wherein you protested my rejection of your collect phone calls as well as my refusal to file a petition for review in your behalf.

Firstly, I know of no rule which requires that I accept any collect calls in a matter where I am a court appointed counsel. Secondly, I enclose for your review a copy of Rule 1114 of the Pennsylvania Rules of Appellate Procedure. I suggest that you take particular note of the three notes appearing below the Rule and you will then understand why a petition for allowance of appeal was not filed by this office.

Lastly, with respect to your statement about my competency, please feel free to bring any claims under the Post Conviction Hearing Act.

Bond then filed, on June 30, 1987, a pro se self-styled petition for allowance of appeal nunc pro tunc. Other than a statement in the recital of facts that his court-appointed counsel abandoned him after the Pennsylvania Superior Court's affirmance of sentence, Bond did not present any reason for the petition's untimeliness. Bond then argued the identical issues upon which the Pennsylvania Superior Court appeal was based and was subsequently denied. On August 4, 1987, at No. 120 E.D.Misc.Docket 1987, the petition for allowance of appeal was denied without comment.

Bond filed the federal habeas petition before us now, again raising the absence of the Gagnon I hearing and the failure of the court to state the reasons for sentencing on the record. The government answered the petition, alleging that it must be dismissed for failure to exhaust state remedies. ²

The U.S. Magistrate assigned to the matter agreed that Bond failed to exhaust his state court remedies. The magistrate presumed that the Supreme Court of Pennsylvania denied Bond's petition on procedural grounds and not on the merits. The magistrate then concluded that this procedural history frustrated the exhaustion requirement and determined that Bond must first pursue the remedy afforded by the [then] Pennsylvania Post-Conviction Hearing Act, 42 Pa.Cons.Stat.Ann. Sec. 9541 et seq. (Purdon 1982), to establish cause for procedural default. The magistrate's recommendation to dismiss for failure to exhaust state remedies was adopted by the district court.

This appeal followed and we have jurisdiction pursuant to 28 U.S.C. Secs. 1291 and 2253.

In a federal habeas proceeding, review of the district court's legal conclusions is plenary and factual findings in dispute are reviewed under the clearly erroneous standard. Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir.1983).

II.

Rather than disputing the district court's conclusion that the exhaustion requirement had not been met, Bond argues that exhaustion is excused because of ineffectiveness of counsel. The government's response is that since the Pennsylvania Supreme Court's denial of allocatur was not a decision on the merits, state remedies have not been exhausted. The government further asserts that because Bond's own procedural default prevented state court review, the proper avenue of recourse is pursuant to the state Post-Conviction Relief Act.

The real issue here is not whether exhaustion is excused but, rather, whether the district court erred in finding that Bond had not fulfilled the exhaustion requirement of Sec. 2254.

Questions of exhaustion are governed by various considerations which, as this case demonstrates, seem facially inconsistent but are substantively compatible. First, it is well established that exhaustion is not a jurisdictional requirement. Its exercise relies upon interests of comity between the state and federal systems. Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987), we held that the exhaustion requirement of 28 U.S.C. Sec. 2254 has been judicially interpreted to mean that claims must have been fairly presented to the highest state court tribunal. Accord Keller v. Petsock, 853 F.2d 1122 (3d Cir.1988). "Fairly presented" means that the claim must be substantially equivalent to that litigated in the state court. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). Both the legal theory and the facts supporting a federal claim must have been submitted to the state court. O'Halloran v. Ryan, 835 F.2d 506 (3d Cir.1987), citing Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir.1986).

Despite the strong preference to afford state courts the first opportunity to adjudicate the claims of its prisoners, the highest state court, however, need not have ruled on the merits of the claims for them to have been sufficiently presented for purposes of exhaustion. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir.1984); Mayberry v. Petsock, 821 F.2d 179, 184 n. 2 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987).

This dichotomy of interests is exemplified in the issue before us: does presentment of an untimely petition to the state's highest court represent substantial compliance with the strong preference for state appellate review under the exhaustion requirement. We hold that it does.

Particularly relevant to this case is our decision United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir.1982), in which the appellant had filed an untimely petition for post-conviction relief, raising the same claim as in the federal habeas petition. We concluded that the appellant had exhausted his state remedies since the "claim was fairly presented to the state courts albeit in an untimely fashion." Id. at 439. Although we are here dealing with a direct appeal to the Pennsylvania Supreme Court and not a collateral...