Hull v. Freeman, 91-6010

• Citation: 991 F.2d 86
• Decision Date: 19 April 1993
• Docket Number: No. 91-6010,91-6010
• Parties: Larry Gene HULL, Appellant, v. Robert M. FREEMAN, Ernest D. Preate, Jr., Attorney General.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 86

991 F.2d 86

Larry Gene HULL, Appellant, v. Robert M. FREEMAN, Ernest D. Preate, Jr., Attorney General.

No. 91-6010.

United States Court of Appeals, Third Circuit.

Argued July 16, 1992.

Decided April 19, 1993.

James V. Wade (argued), Office of Federal Public Defender, Harrisburg, PA, for appellant.

John F. Nelson (argued), Office of Dist. Atty., Chambersburg, PA, for appellees.

Before: MANSMANN, SCIRICA and ROTH, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This case illustrates the complexity engendered by the current federal habeas corpus doctrine of procedural default. In his petition for writ of habeas corpus, Larry Gene Hull contends he received ineffective assistance of counsel in a state court competency hearing before he pled guilty to murder. In an earlier opinion, we held the performance of Hull's counsel at that hearing fell below an objective standard of reasonableness, fulfilling the first of two elements of an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hull v. Freeman, 932 F.2d 159, 168 (3d Cir.1991) ("Hull I"). Because we were unable to ascertain if the district court decided whether counsel's defective performance prejudiced Hull--the second element of an ineffective assistance claim--we vacated the district court's order and remanded for further proceedings. On remand, the district court held Hull was not prejudiced by his attorney's failure to cross-examine the sole witness who testified at the competency hearing or to present evidence on Hull's behalf, and denied the petition.

In reaching the merits of Hull's petition in Hull I, we first considered whether Hull had procedurally defaulted his state post-conviction claim by his untimely appeal to the Pennsylvania Supreme Court. After the Pennsylvania Superior Court denied Hull's state post-conviction claim on the merits, Hull's post-conviction counsel did not file a petition for permission to appeal to the Pennsylvania Supreme Court because he thought an appeal lacked merit. Because counsel did not notify Hull in time for Hull to comply with the filing deadline, Hull filed a pro se petition three months out of time. The Pennsylvania Supreme Court denied the petition without comment.

In Hull I, we held this denial did not constitute a ruling based on procedural default barring federal habeas review. 932 F.2d at 167. Two Supreme Court cases decided after Hull I dictate the opposite conclusion--that the Pennsylvania Supreme Court's denial of Hull's petition did constitute a ruling based on procedural default. This ruling bars federal review of Hull's claim unless he can show "cause" for his procedural default and "prejudice" resulting therefrom. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Hull asserts the "cause" for his untimely post-conviction appeal to the Pennsylvania Supreme Court was his counsel's failure to file the appeal, and his failure to notify Hull of this until after the deadline had passed. As we explain, Hull's post-conviction counsel's failure to file the appeal cannot constitute "cause" as a matter of federal law. Therefore, Hull can only obtain federal habeas review if the Pennsylvania Supreme Court decides to waive his procedural default and hear the merits of his claim.

If post-conviction counsel's conduct amounts to ineffective assistance of counsel under Pennsylvania law, it would constitute a basis for such a waiver, which would entitle Hull to a determination on the merits of his state post-conviction claim by the Pennsylvania Supreme Court. Commonwealth v. West, 334 Pa.Super. 287, 295, 482 A.2d 1339, 1343 (1984). If the Pennsylvania Supreme Court denies Hull's claim on the merits, we will then be free to review Hull's federal habeas claim without considering whether he established cause and prejudice for his state court default.

Hull has never presented to state court his claim that post-conviction counsel provided ineffective assistance in failing to file a petition for allowance to appeal to the Pennsylvania Supreme Court. Because we believe this is a colorable claim, we will vacate the district court's order denying Hull's petition and direct that court to enter an order dismissing Hull's petition without prejudice to enable him to file a state post-conviction petition asserting this claim.

I.

In Hull I, we determined that Hull's failure to file a timely petition for allocatur ¹ and subsequent petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court following the Pennsylvania Superior Court's affirmance of denial of his state post-conviction claim constituted a state procedural default. 932 F.2d at 165. Although this procedural default could have constituted a bar to Hull's habeas claims, we held that under Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), it did not. 932 F.2d at 167. Harris, we said, "held that a petitioner's state-law, procedural default precludes federal habeas review only if the last state court rendering a judgment in the case 'clearly and expressly' states that its decision rests on a state procedural bar." Id. 932 F.2d at 166 (quoting Harris, 489 U.S. at 263, 109 S.Ct. at 1043. We also observed that "the Harris court, in a footnote, expressly stated that its holding also applies to state court affirmances that offer no explanation." Id. 932 F.2d at 167 (citing Harris, 489 U.S. at 265 n. 12, 109 S.Ct. at 1044 n. 12). Applying Harris, we held that we must assume the Pennsylvania Supreme Court's denial of Hull's petition for allowance of appeal without comment constituted a denial on the merits. Accordingly, we found Hull's habeas claim was not precluded by procedural default and we considered it on the merits.

In two 1991 decisions, the Supreme Court limited the Harris presumption we applied in Hull I--that a state court's denial of a habeas petition rests on a procedural default only where it "clearly and expressly" so states. In Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991), the Court held that "[a] predicate to the application of the Harris presumption is that the decision to which the petitioner presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law." In Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), decided the same day as Coleman, the Court addressed the precise question presented by Hull's case: "how federal courts in habeas proceedings are to determine whether an unexplained [state court] order ... rests primarily on federal law" within the meaning of Coleman. Id. at----, 111 S.Ct. at 2594. Ylst resolved this question by establishing a presumption to determine whether such unexplained orders "rest primarily on federal law" so as to trigger the Harris presumption we applied in Hull I. Under Ylst, a federal court faced with an unexplained state court order should "look through" to the previous state court judgment on the same claim and presume that the unexplained order rests on the same ground as that judgment. Thus, "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. This presumption can be rebutted by strong evidence, such as where "the later appeal to the court that issued the unexplained order was plainly out of time, and ... the latter court did not ordinarily waive such a procedural default without saying so." Id. at ----, 111 S.Ct. at 2595.

We applied Coleman and Ylst to affirm the dismissal of a habeas corpus petition for state procedural default in Caswell v. Ryan, 953 F.2d 853 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). In Caswell, the prisoner filed a petition for allocatur nunc pro tunc on his state post-conviction claim after missing the deadline to file a petition for allocatur, and the Pennsylvania Supreme Court denied the petition without comment. We determined that "the Supreme Court's decision in Coleman, reinterpreting its ruling in Harris, in effect overrules our decision in Hull [I], and that we can no longer conclude that there has not been a procedural default merely because the state Supreme Court fails to clearly and expressly base its ruling on a state procedural ground." Id. 953 F.2d at 859.

Applying Coleman and Ylst, we found the Pennsylvania Supreme Court's unexplained denial of Caswell's claim was based on his procedural default, not on the merits. Caswell, 953 F.2d at 860. We noted Ylst indicated its presumption that an unexplained state court order rested on the same ground as the last reasoned state court judgment could be rebutted where "the later appeal was plainly out of time, and [where] the latter court did not ordinarily waive such a procedural default without saying so." 953 F.2d at 860 (quoting Ylst, --- U.S. at ----, 111 S.Ct. at 2595). We found that test satisfied, reasoning that Caswell's appeal, filed fifteen months late, was "plainly out of time, and that the Pennsylvania Supreme Court "did not ordinarily waive" the timeliness requirement without saying so. Id.

We then considered whether Caswell had established the requisite cause and prejudice to excuse his procedural default and obtain federal habeas review. To establish cause, Caswell contended only that the Pennsylvania Supreme Court should not have held him to "strict compliance" with its procedural rules and should have "liberally constru[ed] his petition for appointment of counsel to file a petition for allocatur." 953 F.2d at 862. Rejecting this claim, we concluded the Pennsylvania Supreme Court's "failure to 'bend the rules' " did not constitute cause. Id. We noted that Caswell offered no justification for delaying fifteen months to file his nunc pro tunc petition, even though he had written to...