Evans v. Court of Common Pleas, Delaware County, Pa.

• Decision Date: 13 April 1992
• Docket Number: No. 90-1949,90-1949
• Parties: Frances EVANS, Appellant, v. COURT OF COMMON PLEAS, DELAWARE COUNTY, PENNSYLVANIA, the Attorney General of the Commonwealth of Pennsylvania, the District Attorney of Delaware County.
• Court: U.S. Court of Appeals — Third Circuit

Page 1227

959 F.2d 1227

Frances EVANS, Appellant, v. COURT OF COMMON PLEAS, DELAWARE COUNTY, PENNSYLVANIA, the Attorney General of the Commonwealth of Pennsylvania, the District Attorney of Delaware County.

No. 90-1949.

United States Court of Appeals Third Circuit.

Argued July 24, 1991.

Decided March 18, 1992.

Rehearing and Rehearing In Banc Denied April 13, 1992.

Peter Goldberger, Pamela A. Wilk (argued), Philadelphia, Pa., for appellant.

Ann A. Osborne (argued), Asst. Dist. Atty., Dennis C. McAndrews, Deputy Dist. Atty., William H. Ryan, Jr., Dist. Atty., Media, Pa., for appellee.

Before SLOVITER, Chief Judge, GREENBERG, Circuit Judge and McCLURE, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Chief Judge.

Petitioner Frances Evans appeals to this court from the district court's order dismissing her petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. Evans, a state prisoner whose conviction has been vacated because of evidentiary errors and who faces a retrial in state court, argues that the district court erred in dismissing her federal habeas corpus petition on the ground of failure to exhaust. We agree with Evans, but must then determine whether a federal court may consider the merits of a state prisoner's challenge to the evidence presented in her first trial before her state-ordered retrial. Implicated in the resolution of this question are important issues of federalism and comity.

I. Procedural and Factual History

It is conceded that on September 28, 1984, Evans shot her husband in their home, fatally wounding him. In her subsequent murder trial in the Pennsylvania Court of Common Pleas, Delaware County, Evans contended that after enduring years of physical abuse from her husband, she used her husband's gun in self-defense to ward off a deadly attack. Following a three-day trial, a jury acquitted Evans of first-degree murder ¹ but convicted her on a charge of third-degree murder. ² The trial court sentenced Evans to serve five to ten years in prison, the mandatory minimum sentence under Pennsylvania state law for certain crimes, including third-degree murder, committed with a firearm.

On direct appeal to the Pennsylvania Superior Court, Evans argued, inter alia, that the evidence presented at trial was insufficient to prove that she had the requisite malice for third-degree murder and insufficient to demonstrate that she had not acted in self-defense. In an unpublished opinion, the Superior Court explicitly found that the evidence was sufficient to support Evans's conviction, but held that two trial errors required reversal and remanded the case for a new trial. ³ Commonwealth v. Evans, 383 Pa.Super. 663, 550 A.2d 248 (1988) (noting the decision). The Pennsylvania Supreme Court denied Evans's petition for allowance of appeal. Commonwealth v. Evans, 522 Pa. 594, 562 A.2d 319 (1989). Thereafter, that same court granted the Commonwealth's cross-petition challenging the grant of a new trial. Following full briefing and argument, the Supreme Court dismissed the Commonwealth's appeal as improvidently granted. Commonwealth v. Evans, 524 Pa. 97, 569 A.2d 349 (1990). Evans obtained a stay of retrial from Chief Justice Nix of the Pennsylvania Supreme Court; that stay was dissolved after Evans's petition for a writ of certiorari to the United States Supreme Court was denied. Evans v. Pennsylvania, --- U.S. ----, 110 S.Ct. 3280, 111 L.Ed.2d 789 (1990).

Evans then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, contending that her due process rights under the Fourteenth Amendment were violated because of the insufficiency of the evidence adduced at her trial to prove malice or to disprove self-defense and the Superior Court's exclusive reliance on a presumption of malice from use of a deadly weapon.

In its response to Evans's petition, the Commonwealth conceded that Evans had exhausted all available avenues of relief at the state level. Nevertheless, the magistrate issued a Report and Recommendation recommending that the petition be denied for failure to exhaust state remedies. Evans filed timely objections, but the district court summarily adopted the magistrate's Report and Recommendation and dismissed the petition without prejudice for failure to exhaust state court remedies. Thereafter, the district court issued a memorandum opinion overruling Evans's objections to the magistrate's report and again dismissing Evans's petition without prejudice. Evans v. Court of Common Pleas, No. 90-5036, 1990 WL 223071 (E.D.Pa. Dec. 19, 1990) (Memorandum Opinion).

In its opinion, the district court reasoned that Evans had failed to exhaust her federal constitutional claim in state court because "Evans did not claim constitutional error until her petition [for] allocatur [to the state supreme court]." ⁴ The district court also found that Evans still had the opportunity to present her federal claims to state court under the Pennsylvania Post Conviction Relief Act, 42 Pa. Const. Stat.Ann. § 9541 et seq. (Purdon Supp.1991). The court recognized that in Moore v. DeYoung, 515 F.2d 437, 443 (3d Cir.1975), this court had left open the possibility that pretrial habeas review without exhaustion might be available if "extraordinary circumstances are present," but it rejected Evans's contention that the alleged potential violation of her constitutionally guaranteed right against double jeopardy rendered this case "extraordinary". The court grounded its decision in the interests of comity and stated that "[t]here is no evidence that Evans is procedurally or otherwise foreclosed from asserting her double jeopardy claim at pretrial or in a collateral state court proceeding." ⁵

This court granted a certificate of probable cause under 28 U.S.C. § 2253, ordered a stay of the proceedings in the state court under 28 U.S.C. § 2251, and appointed counsel. The issue whether state remedies have been exhausted is subject to our plenary review. Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir.1986).

II.

Exhaustion

A. General Principles

In general, absent a valid excuse, a prisoner must first present all federal claims to the state court. 28 U.S.C. § 2254(b). The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. O'Halloran v. Ryan, 835 F.2d 506, 509 (3d Cir.1987).

The general principles covering the responsibility of the petitioner to exhaust all federal claims are now fairly well established. The exhaustion requirement is satisfied when the state courts have had an opportunity to pass upon and correct alleged constitutional violations. A claim must be presented not only to the trial court but also to the state's intermediate court as well as to its supreme court. A claim is not deemed exhausted if it is raised for the first time in the state's highest court on discretionary review. Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). However, a petitioner who has raised the claim on direct appeal need not raise it again in a state post-conviction proceeding. Swanger v. Zimmermann, 750 F.2d 291, 295 (3d Cir.1984).

Of particular significance to the issue before us is whether the federal claim has been "fairly presented" to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). Both the legal theory and the facts underpinning the federal claim must have been presented to the state courts, Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986), and the same method of legal analysis must be available to the state court as will be employed in the federal court, Santana, 685 F.2d at 74.

Exhaustion is not a jurisdictional requirement, but rather a rule of comity, and a federal court may in certain circumstances decide the merits of a claim despite non-exhaustion. If the "petitioner has no opportunity to obtain redress in the state court or the state corrective process is so deficient as to render any effort to obtain relief futile," exhaustion is not required. Gibson, 805 F.2d at 138. In addition, a district court may deny a claim on its merits despite non-exhaustion "if it is perfectly clear that the applicant does not raise even a colorable federal claim." Granberry v. Greer, 481 U.S. 129, 135, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987).

B. Application

1. Fair Presentation

It is undisputed that in state court, Evans's challenge to the sufficiency of the evidence to support her third-degree murder conviction was never expressed as a federal due process violation until Evans so alleged, for the first time, in her petition for allocatur to the Pennsylvania Supreme Court. Pennsylvania courts addressing insufficiency of evidence claims generally ground their decisions in state law if the appellant has not argued that federal due process is implicated. Although at least one Pennsylvania Superior Court decision involving an insufficiency of evidence claim cited federal precedent, see Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244, 1246 (1983) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)), that does not appear to be the general practice. In this case, the Superior Court opinion did consider Evans's argument on the insufficiency of the evidence, but the court did not expressly refer to federal law, nor did either of the two cases it cited to support its decision. Finally, even Evans's Superior Court brief failed to refer to federal law.

Nonetheless, this court and our sister circuits have...