Doctor v. Walters

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: O'NEILL; SCIRICA
• Citation: Doctor v. Walters, 96 F.3d 675 (3rd Cir. 1996)
• Decision Date: 04 November 1996
• Docket Number: No. 95-3484,95-3484
• Parties: Gary Lee DOCTOR, Appellant, v. Gilbert A. WALTERS, Appellee.

Page 675

96 F.3d 675

Gary Lee DOCTOR, Appellant, v. Gilbert A. WALTERS, Appellee.

No. 95-3484.

United States Court of Appeals Third Circuit.

Argued June 4, 1996.

Decided Sept. 24, 1996.

Sur Petition for Rehearing Nov. 4, 1996.

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

Robert E. Colville, District Attorney, Kemal Alexander Mercili, Russel Broman, Thomas N. Farrell, (argued), Assistant District Attorneys, Office of District Attorney, Pittsburgh, PA, for Appellee.

Before: SCIRICA, ROTH, Circuit Judges, and O'NEILL, District Judge. ^*

OPINION OF THE COURT

O'NEILL, District Judge:

Petitioner Gary Doctor appeals the dismissal of his petition for a writ of habeas corpus. The court below dismissed the petition because: (1) Doctor failed to exhaust his state remedies; and (2) the Pennsylvania courts refused to consider the merits of his direct appeals based on an independent and adequate state procedural rule. We conclude that Doctor did not exhaust his state remedies and that it would not be futile to require him to raise his unexhausted claims under Pennsylvania's Post Conviction Relief Act. 42 Pa.C.S. §§ 9541-46 (Supp.1996). Accordingly, we will affirm the district court's dismissal of Doctor's petition. Because Doctor may resubmit his petition with only exhausted claims we also address the district court's second basis for dismissing the petition and hold that the fugitive forfeiture rule as applied to Doctor was not an independent and adequate state procedural rule which would bar federal habeas corpus review.

Doctor was charged with aggravated assault in July, 1985. ¹ On June 24, 1986, during the lunch recess of his criminal bench trial, and following the presentation of the Commonwealth's case, Doctor fled. Upon Doctor's failure to return, the trial court issued a bench warrant and recessed the proceedings. On August 29, 1986, the trial court entered a guilty verdict against Doctor, apparently without conducting any further proceedings or attempting to inform Doctor, his attorney or the Commonwealth about its intention to enter a verdict.

Doctor remained at large for over five years until he was arrested on January 25, 1992 in Butler County, Pennsylvania. On April 14, 1992, the trial court sentenced Doctor to a term of 49 to 98 months. On June 5, 1992, Doctor filed a pro se "Petition for Habeas Corpus" in the Pennsylvania Supreme Court, Appendix 279-284, which was denied on August 21, 1992. While that petition was pending, he filed a timely direct appeal to the Pennsylvania Superior Court. On May 13, 1993, the Superior Court, without reaching the merits of any of his claims, quashed Doctor's appeal pursuant to Pa.R.App.P.1972(6). This fugitive forfeiture rule allows a Pennsylvania appellate court "to quash" an appeal "because the appellant is a fugitive." The Superior Court then denied Doctor's Application for Reargument. The Pennsylvania Supreme Court denied Doctor's Petition for Allowance of Appeal without opinion on November 29, 1993. Thereafter the United States Supreme Court denied Doctor's petition for a writ of certiorari.

On November 29, 1994, Doctor filed a pro se habeas corpus petition under 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania. The district court, adopting the report and recommendation of a magistrate judge, dismissed Doctor's petition without considering its merits. Doctor filed a timely notice of appeal to this Court. On September 19, 1995, the district court granted Doctor's request for a certificate of probable cause to appeal and appointed counsel for him.

The district court had jurisdiction over this matter under 28 U.S.C. § 2254. We have jurisdiction under §§ 1291 and 2253. Our review of whether petitioner has exhausted his state remedies is plenary. Ross v. Petsock, 868 F.2d 639, 640 (3d Cir.1989).

EXHAUSTION

Generally, a § 2254 petition which includes any unexhausted claims must be dismissed without prejudice for failure to exhaust all state created remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). To satisfy the exhaustion requirement the petitioner must present every claim raised in the federal petition to each level of the state courts. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The petitioner must afford each level of the state courts a fair opportunity to address the claim. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). The petitioner's state court pleadings and briefs must demonstrate that he has presented the legal theory and supporting facts asserted in the federal habeas petition in such a manner that the claims raised in the state courts are "substantially equivalent" to those asserted in federal court. Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989). The state courts need not discuss or base their decisions upon the presented claims for those claims to be considered exhausted. Picard, 404 U.S. at 275, 92 S.Ct. at 512.

The district court, adopting the findings of the magistrate judge, concluded that "Doctor's 6th Amendment claim was never presented to any Pennsylvania appellate court." Appendix at 301.

In his § 2254 petition Doctor asserts the following grounds for relief No record of trial of Absentia said to have been held on Aug. 29th 1986--I was not convicted in a court of law--I was never told on record or otherwise I was found guilty--I was never given any appeal rights before or after sentencing. No attorney is on record to have represented me in the mysterious absentia trial held--the trial transcripts in my case stop on page 129 at which time case was continued generally, this was on June 25, 1986. The court docket shows a conviction date of 8/29/86--written in on April 14, 1992--The trial court Judge has written an opinion on Oct. 2, 1992 and cited cases (Com. v. Jones ) 1992 and Com. v. Lines, 609 A.2d 134 Pa. Super 1992. These cases do not apply to me--but are only stated to keep another court from reviewing the record and transcript both which will reveal there was no trial of absentia on Aug. 29th, 1986--my Rights to appeal is and has been obstructed by lower Court's false opinion and misconduct.

(Grounds)

1. Due Process 14th Amendment

2. Right to Appeal

3. Post Verdict Rights

4. 6th Amendment

5. Insufficient Evidence.

Appendix at 144-45.

On appeal Doctor states that his § 2254 petition includes a Sixth Amendment claim alleging a deprivation of his right to trial. ² See Appellant's Reply Brief at 3 ("By depriving Doctor of a trial, of course the Trial Court also deprived Doctor of all other Sixth Amendment rights, ... But the critical violation, from which all other violations arose, was the deprivation of a trial."). Doctor claims that the trial court entered a guilty verdict against him without conducting any further proceedings in absentia or otherwise. We must decide whether Doctor has satisfied the exhaustion requirement by affording all levels of the Pennsylvania courts a fair opportunity to address this claim. Because we find that he has not adequately presented this claim to either the Pennsylvania Superior Court or the Pennsylvania Supreme Court, we conclude that he has not.

Doctor's brief to the Superior Court on direct appeal did not include the Sixth Amendment claim he now asserts. In that brief Doctor raised four issues:

(1) whether the Defendant became a fugitive before post-trial proceedings commenced thereby waiving his rights to proceed on appeal; (2) whether mailing notice to Doctor's address is sufficient notice to satisfy constitutionally required due process whenever an individual may suffer a deprivation of his liberty; (3) whether the trial court's failure to advise Defendant of his Rule 1123 rights, which results in defendant's failure to file Post-Verdict Motions, constitutes a waiver by Defendant of appealable issue; and (4) sufficiency of the evidence.

See Appendix at 172-73. The due process claim raised in the Superior Court brief challenges only whether Doctor received constitutionally required notice of a trial in absentia. The brief does not raise the issue of whether a trial in absentia ever occurred. See Appendix at 183-84. Though inadequate notice of a trial may implicate Sixth Amendment concerns, a claim arising from that lack of notice is distinct from a claim that no trial in absentia was ever held. Following the Superior Court's May 13, 1993 order which quashed his right to appeal, Doctor filed an Application for Reargument in the Pennsylvania Superior Court. Appendix at 202-05. In this application Doctor, through counsel, stated:

the Trial Court's decision to continue Appellant's trial allows that Court to render a verdict in absentia, absent proof that Appellant received notice of the new trial date and then failed to appear. This Court's decision permits the prosecution and determination of guilt of an individual in absentia without notice of any proceedings. The same is a gross violation of the due process required by both the United States and Pennsylvania Constitutions.

Id. at 203-04. Doctor argues that this claim, without explicitly invoking the Sixth Amendment, incorporates it by reference to 14th Amendment due process. Even if this were so, mere invocation of a legal principle is insufficient to apprise the state courts of the facts and legal theories of the claim he now asserts. We therefore cannot find that a claim concerning the adequacy of notice of a trial in absentia is "substantially equivalent" to a claim that no trial in absentia ever occurred as is necessary to satisfy the exhaustion requirement. See Bond, 864 F.2d at 309. Thus, the Superior Court did not have a fair opportunity to address Doctor's Sixth Amendment claim that the trial court never conducted a trial in absentia.

Nor did Doctor state the instant Sixth Amendment claim in his brief to the Pennsylvania Supreme Court. In that brief...