Burkett v. Love

• Decision Date: 16 August 1996
• Docket Number: No. 95-3525,95-3525
• Citation: 89 F.3d 135
• Parties: Wayne Paul BURKETT, Appellant, v. William LOVE, Superintendent, et al., Answering Respondent Blair County District Attorney, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 135

89 F.3d 135

Wayne Paul BURKETT, Appellant, v. William LOVE, Superintendent, et al., Answering Respondent Blair County District Attorney, Appellees.

No. 95-3525.

United States Court of Appeals Third Circuit.

Argued April 30, 1996.

Decided July 12, 1996.

Sur Petition for Rehearing Aug 16, 1996.

Shelley Stark (argued) Federal Public Defender, Karen Sirianni Gerlach, Assistant Federal Public Defender, Pittsburgh, PA, for Appellant.

David C. Gorman (argued) Office of District Attorney for Blair County, Hollidaysburg, PA, for Appellees.

Before: STAPLETON, SCIRICA, and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this case, a state prisoner alleges that he was denied parole in retaliation for the successful pursuit of relief in various federal habeas corpus proceedings. The district court denied the petition on the merits and also found a failure to exhaust "administrative" remedies. ¹ Because we conclude that petitioner has failed to exhaust state remedies, and in addition, that some uncertainty exists as to the proper state procedure to address the issue that the prisoner raises, we remand with directions to dismiss.

Between February 1981 and April 1982, the district attorney of Blair County, Pennsylvania, filed three sets of charges against petitioner Wayne Burkett. In November 1981, he was convicted of burglary, theft, receiving stolen property, and corruption of minors, docketed in 1981 at Nos. 140/141. On January 20, 1982, Burkett was convicted of rape, involuntary deviate sexual intercourse, terroristic threats, unlawful restraint indecent exposure, reckless endangerment, indecent assault, and aggravated assault, docketed in 1981 at No. 161. A third conviction, entered on January 28, 1983 for attempted rape, terroristic threats, assault, and reckless endangerment was docketed in 1982 at No. 284.

In an earlier proceeding, we granted habeas corpus relief resulting in the vacation of the convictions at Nos. 140/141 and 161 because of inordinate delays in sentencing. See Burkett v. Cunningham, 826 F.2d 1208 (3d Cir.1987). In Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir.1991), we held that the sentence imposed at No. 284 should be reduced because of delay.

After another round of orders from the district court and this Court, the state judge denied Burkett's motion for recusal and reduced the sentence in accordance with our earlier order. Petitioner is presently serving a term of 12 3/4 to 28 3/4 years. In February 1993, Burkett filed a Post Conviction Relief Act petition in Blair County challenging the sentence as excessive.

In September 1994, the Pennsylvania Parole Board denied petitioner's request for parole, citing, among other reasons, "very high assaultive behavior potential" and "unfavorable recommendation from district attorney and sentencing judge." The Board rejected petitioner's request for reconsideration, stating: "Be advised that what the Board decides and why, with regard to parole/reparole, is wholly within the Board's discretion and not subject to judicial review. Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986) (en banc)."

On September 28, 1994, Burkett filed a pro se habeas corpus petition in the Pennsylvania courts raising, among other claims, retaliatory denial of parole. The state court dismissed the petition without prejudice and appointed new counsel with instructions to file an amended petition.

In June 1995, Burkett initiated the present matter by filing a document in the district court entitled "Motion to Enforce Order of the District Court Dated December 4, 1992 and to Permit Discovery in Support of Burkett's Motion." (The December 4, 1992 order had directed the imposition of a reduced sentence, as discussed in our opinion at 951 F.2d at 1433.) In this "motion," Burkett alleged that the Commonwealth of Pennsylvania had denied him parole in vindictive retaliation for his success in the earlier federal habeas corpus actions he had pressed in the district court and our Court.

The district court denied the motion, finding inter alia that the decision to grant parole was committed to the sound discretion of the Parole Board and that the agency had cited at least five legitimate and non-discriminatory reasons for its action. Further, the court stated that the responses of the district attorney and the sentencing judge were proper and non-vindictive. In addition, the court concluded that Burkett had failed to exhaust his administrative remedies.

Burkett has appealed, contending that no corrective state process exists and therefore the district court should have conducted an evidentiary hearing and allowed discovery.

I. Appellate Jurisdiction

Burkett's motion in the district court was filed under the docket number of an earlier case. It should have been filed under a separate docket number rather than as a continuation of the previous action. However, because the district court and the parties have treated this case as a new petition for a writ of habeas corpus, we will do likewise. The district court's order disposing of the matter is final as a practical matter and we have jurisdiction to consider this appeal.

II. Exhaustion of State Remedies

State prisoners alleging a constitutional violation and improper incarceration must present their arguments to the state courts before they will be addressed by the federal courts. 28 U.S.C. § 2254(b). At the time the "motion" was filed in the district court, 28 U.S.C. § 2254(c) read: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the questions presented."

To satisfy the exhaustion requirement, the claim must be presented to the state's highest court. Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379 (1982). "The exhaustion requirement does not foreclose, but only postpones, federal relief." Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.1993). Pursuing state remedies is not a mere formality, but serves the interests of comity between the state and federal courts. Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986).

After this appeal was taken, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), which revises the procedures for habeas corpus proceedings. Section 104(1) of the Act states that applications by persons in state custody "shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the court of the State" or there is no available state remedy or that process would be ineffective. However, a federal court may deny an application on the merits notwithstanding an applicant's failure to exhaust state remedies. Id.

The 1996 statute also provides that if a state court has addressed the merits of a petitioner's claim, the federal court shall not grant a writ of habeas corpus unless the state decision was contrary to, or an unreasonable application of, federal law, or was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding. Section 104(3). Applicants have the burden to rebut a state's factual determinations by clear and convincing evidence. Section 104(4). Section 104(4) also specifies the limited circumstances in which a federal court can hold an evidentiary hearing if the applicant has failed to develop the factual basis for a claim in the state proceeding. ² In the somewhat unusual circumstances here, we need not digress to determine the effect of these provisions on this pending action, filed, as it was, before the amendments were enacted.

III. Does the State Lack Corrective Measures?

Burkett contends that retaliation for his exercise of access to the federal courts violates his rights under the United States Constitution, but that the state courts will not entertain his claim. He points to the Pennsylvania Commonwealth Court's in banc decision in Reider v. Pennsylvania Bd. of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986).

In that case, a state prisoner appealed to the Commonwealth Court alleging that the Parole Board's decision to deny him parole was a denial of his constitutional rights to equal protection as well as due process, and in addition constituted cruel and unusual punishment. In an opinion dismissing the appeal, the Court reviewed a number of its earlier rulings that had reached differing results on its power to review Parole Board decisions asserted to have been in violation of the Constitution. ³

Because the Court's jurisdiction to review agency decisions rests on the administrative agency law of Pennsylvania, 2 Pa. Cons.Stat. Ann. §§ 701-704, which authorizes appeals from "adjudications," Reider looked to the statutory definition of that word. The term "adjudication" excludes "any order based upon a proceeding ... which involves ... paroles." 2 Pa.Con.Stat.Ann. § 101. The Commonwealth Court concluded that "[b]y definition, therefore, Board action of denying parole is not an adjudication subject to judicial review." Reider, 514 A.2d. at 970.

The Reider opinion acknowledged that the Pennsylvania Supreme Court in Bronson v. Pennsylvania Bd. of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980) had held that a prisoner could seek judicial review of a parole revocation. In distinguishing Bronson, the Commonwealth Court cited Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), which concluded that a parole revocation affected a liberty interest because the ruling returned a parolee to custody. In contrast, a prisoner denied parole is not at liberty but remains in custody and thus his status remains unchanged.

Following that reasoning, Reider held that under Pennsylvania law, a prisoner had "no...