Henderson v. Frank

• Decision Date: 06 August 1998
• Docket Number: No. 97-3041,97-3041
• Citation: 155 F.3d 159
• Parties: John Kenneth HENDERSON, Appellant, v. Frederick FRANK, Superintendent; Thomas W. Corbett, Jr., Attorney General John K. Henderson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 159

155 F.3d 159

John Kenneth HENDERSON, Appellant, v. Frederick FRANK, Superintendent; Thomas W. Corbett, Jr., Attorney General John K. Henderson, Appellant.

No. 97-3041.

United States Court of Appeals, Third Circuit.

Argued June 9, 1998.

Decided Aug. 6, 1998.

Shelley Stark (argued), Office of the Federal Public Defender, Pittsburgh, PA, for Appellant.

David F. Pollock (argued), Office of the District Attorney, Waynesburg, PA, for Appellee.

Before: BECKER, Chief Judge, ALDISERT and GARTH, Circuit Judges

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Facing criminal charges at a preliminary hearing before a Commonwealth of Pennsylvania district justice, John K. Henderson signed and filed a standard waiver of counsel form. He then petitioned the state court to allow him to proceed pro se, which was allowed without a recorded colloquy between Henderson and the judge regarding the dangers of self-representation. Henderson was not represented by counsel at a subsequent pretrial hearing where he unsuccessfully moved to suppress his confession. He was represented by counsel at his trial, where a jury found him guilty of burglary, criminal conspiracy, criminal attempt to commit burglary and criminal mischief.

After failing to obtain relief from his conviction in the state court system, Henderson petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that his invalid waiver of counsel and subsequent lack of representation at the suppression hearing violated the Sixth Amendment. The district court denied relief and we granted a certificate of appealability. 28 U.S.C. § 2253(c)(2). We must consider two separate but related issues: First, did signing a standard waiver of counsel form at the preliminary hearing and later petitioning the court for permission to proceed pro se, by themselves, constitute a knowing, voluntary and intelligent waiver of his right to counsel at a subsequent suspension hearing? Second, if this did not satisfy Sixth Amendment waiver requirements and we grant a writ of habeas corpus, should the grant of the writ be conditioned on his receiving a new trial or merely a new suppression hearing? Before meeting these issues head-on, we must first decide whether his habeas petition was time-barred under provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and whether he exhausted state remedies before filing the Petition.

The district court had jurisdiction pursuant to 28 U.S.C. § 2241(a), and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A). Henderson's Notice of Appeal was timely filed. Rule 4, Federal Rules of Appellate Procedure. We will reverse and remand to the district court to issue the writ, conditioned on the Commonwealth affording Henderson a new suppression hearing and a new trial.

I.

In April, 1992, the Waynesburg, Pennsylvania Police arrested Henderson for receiving stolen property in connection with the burglary of a clothing store. Once in police custody, Henderson confessed to the burglary of the clothing store and also to the attempted burglary of a hardware store a few months earlier. He was subsequently charged with both crimes.

Prior to the preliminary hearing on July 6, 1992, Henderson applied for and was appointed a public defender. Because this particular attorney withdrew from the representation prior to the hearing, he was represented at the hearing by another public defender, Elizabeth Haque. At this hearing, Henderson submitted a form entitled "Waiver of Counsel" to the district justice. The standard form was filled out with Henderson's name, the charges of "Burglary, Criminal conspiracy, Criminal attempt, Criminal mischief & Criminal Conspiracy" and contains Henderson's signature below a series of pre-printed statements, including:

I, John Henderson, have been informed that I have the right to have a lawyer represent me, and if I cannot afford one, one will be afforded to me without cost....

I, John Henderson, am a ware of the permissible range of sentences and/or fines for the offenses charged....

I knowingly, voluntarily and intelligently waive these rights and choose to act as my own lawyer at this hearing/trial.

App. at 33. The district justice signed the form under the statement, "I HAVE DETERMINED THAT THE DEFENDANT HAS MADE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL." Id.

On July 17, Henderson filed a "Petition to Proceed on own Behalf", which was granted by the trial court. It is unclear from the record whether Elizabeth Haque continued to serve as court-appointed stand-by counsel for Henderson after this point. Henderson next filed a pro se Motion to Suppress his confession, and after a suppression hearing on September 25 at which he represented himself, and at which Ms. Haque's presence is not apparent on the record, his Motion was denied. The court then appointed new counsel to represent Henderson at trial and the jury convicted Henderson on all counts. The trial court sentenced him to 5 to 20 years at Huntingdon State Correctional Institution.

Henderson appealed to the Pennsylvania Superior Court, alleging, inter alia, that he was denied the effective assistance of counsel at the suppression hearing. His conviction was affirmed and the Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal, which raised a violation of "the right to counsel." The Court of Common Pleas denied his Pennsylvania Post Conviction Relief Act Petition, 42 Pa. Cons.Stat. §§ 9541-9546, which also raised the deprivation of counsel issue.

Henderson gave his Habeas Corpus Petition, which was addressed to the federal district court in Pittsburgh and dated April 16, 1996, to Huntingdon SCI prison officials for delivery. The record does not disclose the precise date that his Petition was handed to the prison officials. The record does reveal that the district court clerk filed the Petition on April 25, one day after the effective date of the AEDPA amendments to the federal habeas corpus statute.

Our review of whether Henderson has exhausted his state remedies is plenary. See Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.1996). Whether the AEDPA applies to this case, i.e., whether Henderson's Petition was pending on the AEDPA's April 24, 1996 enactment date, is a jurisdictional question subject to plenary review. See In re Flanagan, 999 F.2d 753, 756 (3d Cir.1993). If we conclude that the AEDPA applies to Henderson's petition, then we may reverse the state court's denial of his Sixth Amendment claim only if the decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Bey v. Morton, 124 F.3d 524, 528 (3d Cir.1997). If the AEDPA's amendments to § 2254 do not apply, then we exercise simple plenary review. See Bey, 124 F.3d at 528.

II.

The Commonwealth has suggested that Henderson's Petition was filed after enactment of the AEDPA, which amended the federal habeas statute in two respects relevant to this case: (1) the AEDPA provides for a one-year period of limitations to file § 2254 petitions, running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review", § 2244(d)(1)(A), and (2) it imposes a new, limited standard of review which restricts federal court action by requiring deference to the state court's legal resolution of the issue petitioned, § 2254(d).

For several discrete reasons, we are not impressed by the Commonwealth's tardy presentation of this argument which it neglected to present to the district court. First, we conclude that Henderson's Petition was timely filed prior to the effective date of the act, April 24, 1996, that therefore his Petition was pending on that date and that the AEDPA does not apply. See Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). We reach this conclusion because we agree with Henderson's claim that he handed over his petition, which was dated April 16, 1996, to prison officials before April 24, 1996 and therefore it was timely filed. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir.1998) (the teachings of Houston--that delivery of a notice of appeal by a pro se prisoner to prison officials is tantamount to filing with the clerk of court--apply to filing a § 2254 habeas petition).

Putting aside that the Commonwealth failed to raise this issue before the district court, we are unable to accept its argument, somehow made with a straight face, that because the clerk received the transmittal from the prison on April 25, Henderson did not place it in the hands of the prison officials until the day before, to-wit April 24; that in a herculean burst of bureaucratic efficiency and postal service it was processed by the various levels of prison administration and delivered to the rural post office in Huntingdon, Pennsylvania that same day; that in lightning speed, the U.S. Postal Service carried it from Central Pennsylvania over the mountains to the Pittsburgh metropolitan distribution center--covering half the distance of the state--where, without any delay whatsoever, it was delivered to the district court clerk's office in Pittsburgh by the next morning. If the Commonwealth had introduced evidence to support this ambitious scenario, it might have received some favorable reception here. But no such evidence was submitted. And what we know as men and women about prison administrative procedures and the pace of U.S. Mail delivery, now described as "snail mail" by e-mail aficionados, we must not forget as judges. We will not...