Chaussard v. Fulcomer, 86-3412

• Citation: 816 F.2d 925
• Decision Date: 27 April 1987
• Docket Number: No. 86-3412,86-3412
• Parties: Robert CHAUSSARD v. Thomas FULCOMER, Warden Appeal of Robert W. CHAUSSARD.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 925

816 F.2d 925

Robert CHAUSSARD v. Thomas FULCOMER, Warden Appeal of Robert W. CHAUSSARD.

No. 86-3412.

United States Court of Appeals Third Circuit.

Argued March 2, 1987.

Decided April 27, 1987.

George E. Schumacher, Joel B. Johnston (argued), Federal Public Defender, Pittsburgh, Pa., for appellant.

Charles S. Hersh, Lorinda L. Hinch (argued), Asst. Dist. Atty., Dist. Atty's Office, Mercer, Pa., for appellee.

Before GIBBONS, Chief Judge, SEITZ and GARTH, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Robert Chaussard appeals from an order of the district court dismissing his habeas corpus petition. We have jurisdiction under 28 U.S.C. Secs. 1291, 2254 (1982).

I.

Chaussard was convicted in state court of rape and recklessly endangering another person. The Superior Court of Pennsylvania affirmed the judgment of sentence. Chaussard filed a pro se petition requesting allocatur. Chaussard's then counsel filed a second petition. The Supreme Court of Pennsylvania denied both petitions. Chaussard did not institute Post Conviction Hearing Act (PCHA) proceedings. Rather, he petitioned the district court for a writ of habeas corpus. The district court dismissed the petition because it concluded that it contained exhausted and unexhausted federal claims. This appeal followed.

We narrate the evidence offered in the state criminal trial. On February 4, 1982, the prosecutrix was raped at gunpoint in her home. That afternoon, she gave the police a statement which included a description of the assailant, his clothing and weapon. She sketched the assailant's face and a distinctive patch she saw on the assailant's shirt. The next day, the prosecutrix and a police officer tried to produce a composite picture of the assailant. The prosecutrix was not satisfied with the composite.

At trial, Officer Stephens testified that, on the date of the rape, the prosecutrix told him the assailant's shirt had a rust streak across the back. The officer produced undated notes corroborating this information. The rust stain, however, was not mentioned in the final police report.

On February 20, 1982, Police Chief Reinhart took the prosecutrix to a hypnotist, apparently to aid in the investigation of the rape. The session lasted approximately one hour and only the hypnotist and the prosecutrix were present. The session was tape recorded, and the hypnotist took notes. The audio tape was given to Chief Reinhart. The hypnotist recalls giving Reinhart his personal notes, although Reinhart does not recall this. In any event, the notes cannot be located. Reinhart destroyed the audio tape after about two months, and prior to Chaussard's arrest, in response to a memo from the district attorney stating that the use of hypnosis had been disapproved by the Pennsylvania Supreme Court.

On April 30, 1982, the prosecutrix looked out her window in response to a continuous knocking. She saw Robert Chaussard on her porch. She immediately called the police because she thought Chaussard was the man who raped her. The police arrested Chaussard nearby.

The state trial court found that the district attorney's office did not learn that the prosecutrix had been hypnotized until approximately thirty days before the November 12, 1982 hearing in this case.

As indicated, Chaussard was tried and convicted and unsuccessfully appealed. He then filed a petition for a writ of habeas corpus.

II. EXHAUSTION

Fairly read, Chaussard's petition for a writ of habeas corpus raises four constitutional challenges: (1) that he was denied his right to meaningfully confront and cross examine the prosecutrix because he was unable to reconstruct her hypnosis; (2) that he was denied due process by the deliberate destruction of the tape recording of the hypnosis; (3) that he was denied equal protection and due process because the trial court failed to give a more complete cautionary instruction on hypnosis and trial testimony; and (4) that the trial court committed constitutional error by failing to grant a post-verdict evidentiary hearing on whether two of the Commonwealth's witnesses committed perjury.

The district court determined that Chaussard's habeas petition contained exhausted and unexhausted claims and dismissed the petition. Our review of this issue is plenary. In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court construed 28 U.S.C. Secs. 2254(b), (c) to require exhaustion of state remedies as to each claim before a prisoner may file a habeas petition in federal court. If the habeas petition contains any claim that has not been fairly presented to the highest state tribunal, the district court must dismiss the petition. At that point, the prisoner may return to state court to litigate the unexhausted claims or file an amended petition in federal court containing only the exhausted claims.

The Commonwealth argues that the district court correctly dismissed the habeas petition for failure to exhaust state remedies. ¹ First, the Commonwealth argues that because Chaussard did not raise his third and fourth claims in the Superior Court, he has not given any Pennsylvania appellate court the realistic opportunity to correct the alleged defects, and, therefore, has not exhausted his state remedies as to these claims. In effect, the Commonwealth argues that we cannot consider the petition for allocatur in determining whether Chaussard exhausted his state remedies because Chaussard could not, as a matter of right, require review by the Pennsylvania Supreme Court. Second, the Commonwealth argues that the petition for allocatur itself did not include each claim raised in the federal habeas petition. The Commonwealth therefore asserts that the identical federal claims were not presented in the state court papers.

While it is true that direct review by the Supreme Court of Pennsylvania is a matter of discretion, the exhaustion rule is satisfied when the state courts have had an "opportunity to pass upon and correct" alleged violations of a prisoner's federal constitutional rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963); see Gonce v. Redman, 780 F.2d 333 (3d Cir.1985); Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42 (3d Cir.1984). The Pennsylvania Supreme Court's discretionary refusal to review the merits of Chaussard's convictions does not affect the fact that Chaussard, in his petition for allocatur, gave the highest Pennsylvania state court the opportunity to correct each alleged constitutional infirmity in his criminal convictions. Cf. Smith v. Dignon, 434 U.S. 332, 333-334, 98 S.Ct. 597, 598-599, 54 L.Ed.2d 582 (1978) (per curiam) (state court failure to rule explicitly on federal challenge is no bar to federal habeas relief). By raising each federal claim in his petition and brief to the Pennsylvania Supreme Court, Chaussard has satisfied the exhaustion requirement.

This appeal involves a further exhaustion question of whether Chaussard raised substantially the same federal claims in state court. Exhaustion requires that each claim be "fairly presented" to the state courts. Fair presentation requires that before a particular claim may be asserted in federal court, the same method of analysis must have been made available to the state courts. See Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) ("the substance of the federal habeas corpus claim must first be presented to the state courts"); Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc).

The Commonwealth argues that Chaussard has presented a two-part sixth amendment challenge in federal court, challenging the admissibility of post-hypnosis testimony generally and when there is no tape of the hypnosis, in contrast to the single sixth amendment challenge raised in state court. We reject the Commonwealth's argument that Chaussard has made an independent "memory hardening" sixth amendment challenge in federal court. Chaussard emphasizes that aspect of hypnosis only as a predicate to his single sixth amendment claim that the destruction of the recording of the hypnosis made meaningful confrontation and cross examination impossible. In his reply brief, Chaussard specifically states "the violations of [petitioner's] sixth amendment rights flow jointly from the use of hypnosis and the destruction of the crucial audio tapes regarding that contested hypnosis session." The argument is substantially equivalent to the sixth amendment challenge made in state court, although the emphasis may be slightly different. As to this issue, the state courts "have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor, supra, 404 U.S. at 276, 92 S.Ct. at 512.

There is no question that Chaussard, in his petition for allocatur, alleged a due process violation by the destruction of the tape. The same can be said of the failure to provide an adequate cautionary instruction. As to the failure to provide an evidentiary hearing, the Commonwealth argues that Chaussard did not fairly present this to the state courts because, in identifying the issues in his petition for allocatur, Chaussard did not explicitly rely on the United States Constitution. In the argument section of the petition, however, Chaussard relied on federal constitutional cases and argued that a criminal conviction obtained by the State with the knowing use of false and perjured testimony violates the fourteenth amendment and due process clause. Thus, Chaussard gave the state courts the opportunity to rule on this federal challenge. See Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. den., 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980).

We conclude that Chaussard has fairly presented each of his federal claims to the state courts and, therefore, has complied with the exhaustion prerequisite to federal habeas relief.

III.

Because no...