Mayberry v. Petsock

• Decision Date: 18 May 1987
• Docket Number: No. 85-3537,85-3537
• Citation: 821 F.2d 179
• Parties: Richard O.J. MAYBERRY, Appellant, v. George PETSOCK, Superintendent. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 179

821 F.2d 179

Richard O.J. MAYBERRY, Appellant, v. George PETSOCK, Superintendent.

No. 85-3537.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

May 18, 1987.

Decided June 15, 1987.

Rehearing and Rehearing In Banc Denied July 9, 1987.

Richard O.J. Mayberry, pro se ^*.

Robert E. Colville, Dist. Atty., Kenneth J. Benson, Asst. Dist. Atty., Office of the Dist. Atty., Pittsburgh, Pa., for appellee.

Before SLOVITER, BECKER and GARTH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Facts

Petitioner Richard O.J. Mayberry appeals from an order of the District Court for the Western District of Pennsylvania dismissing his petition for a writ of habeas corpus for failure to exhaust state remedies. An examination of the lengthy procedural history of this case is necessary to our disposition of this appeal.

On December 9, 1966, following a tumultuous trial in state court in Allegheny County, Pennsylvania, petitioner Mayberry and two co-defendants, Dominick Codispoti and Herbert Langnes, were found guilty by a jury of prison breach and holding hostages in a penal institution, based on acts which occurred while they were Pennsylvania state prisoners. On the day of sentencing, December 12, 1966, Mayberry filed a motion for a new trial which alleged thirty-nine grounds of error. See App. at 158-162. Although Pennsylvania rules of criminal procedure have been interpreted to require that post-verdict motions be decided before sentencing, Pa.R.Crim.P. 1123 (comment); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 373 (1975), the trial judge, Judge Fiok, proceeded to sentence Mayberry without ruling on his post-trial motion. Mayberry was sentenced to consecutive terms of imprisonment of fifteen to thirty years for hostage holding and five to ten years for prison breach. On the same day, Judge Fiok found Mayberry guilty of eleven counts of criminal contempt of court for his conduct during the trial. ¹ Mayberry was sentenced to consecutive terms of imprisonment of eleven to twenty-two years on the contempt charges. The contempt charges were the subject of numerous appeals and are not at issue in the current petition for a writ of habeas corpus.

In addition to his new trial motion filed in the trial court, Mayberry filed a timely appeal on January 12, 1967 to the Pennsylvania Superior Court of his convictions and sentences for prison breach and hostage holding. The record indicates that following the filing of his appeal in January 1967, Mayberry filed seven petitions for continuances in his appeal pending before the Superior Court, the last one granted March 25, 1970, and continuing the appeal until November 1970. App. at 167. In each of the five petitions for continuance that Mayberry included in his appendix, there is reference to the pending undecided new trial motion, and all but one petition requested that a continuance be granted in order to allow the new trial motion to be decided before the appeal was decided. App. at 89-112. The Commonwealth did not object to any of the continuances. On November 13, 1970, apparently after the period covered by the last petition for continuance, the Superior Court entered a judgment of non pros on the appeals. No reference to the petitions for continuance or to the pending new trial motion was made in the judgment of non pros. App. at 114-15.

On December 7, 1970, Mayberry filed a petition with the Superior Court to remove the judgment of non pros. The petition alleged that by placing him in solitary confinement and denying him access to legal papers, the state prison authorities interfered with and obstructed his attempt to file a brief or a new petition for a continuance of the pending appeal. App. at 120-21. Mayberry's petition also stated that his post trial motions had not yet been decided. App. at 119. By letter dated January 27, 1971, from Assistant District Attorney Carol Mary Los (now Judge Mansmann of this court), Mayberry was informed that the Commonwealth had no objection to the removal of the non pros judgment. App. at 80-81. The Superior Court took no action on Mayberry's petition to remove the judgment of non pros for four years until, on March 12, 1975, it denied the petition without an opinion. App. at 115.

The Commonwealth asserts that Mayberry's post-trial motions were resolved by an order signed by Judge Fiok on January 27, 1975. The order pointed to by the Commonwealth is titled "Order of Court Nunc Pro Tunc", states that an earlier Order entered on December 29, 1967 "has become lost or misplaced", and denies the "respective motions" of Mayberry and his co-defendants nunc pro tunc to December 29, 1967. App. at 30-31. Mayberry contends that the nunc pro tunc order was never docketed in the Pennsylvania courts and that he never received a copy of the order.

Mayberry also avers in his habeas corpus petition that he filed a petition with the Pennsylvania trial court for post-conviction relief on October 9, 1970. The purported petition alleges that Mayberry was prevented by prison officials from pursuing his appeal, that he was prevented from communicating with his attorney, and that he was being prevented by prison officials from proceeding with his new trial motion. App. at 169-74. The Commonwealth asserts that the post-conviction petition was never filed with the Pennsylvania courts.

Mayberry filed a petition for habeas corpus on October 23, 1984 in the United States District Court for the Western District of Pennsylvania alleging five grounds for relief: denial of his due process rights caused by the delay of the trial court in failing to rule on his new trial motion and in failing to rule on his post-conviction petition; denial of his due process rights because the trial court's failure to rule on the new trial motion and post-conviction petition obstructed his right to appeal; denial of due process by the trial court's sentencing him prior to ruling on the new trial motion; denial of due process based on the thirty-nine grounds for error alleged in his post-trial motion filed in state court; and denial of due process by state officials' obstruction of his right to appeal. App. at 9-10. Mayberry's habeas petition acknowledges that the allegations of unconstitutional delay in ruling on his new trial motion and post-conviction petition and sentencing prior to ruling on the new trial motion claims have not previously been presented to the Pennsylvania courts. He alleges, however, that he has "no available remedy in the state courts." App. at 9.

The petition for habeas corpus was referred to a magistrate who recommended that the petition be dismissed for failure to exhaust state remedies. The magistrate stated, "there is no doubt that on January 29, 1975, the Court of Common Pleas entered an order in which it held that the order of December 29, 1967 had been lost or misplaced, and directed that the motion for a new trial be denied as of December 29, 1967." App. at 48. The magistrate concluded that because Mayberry had not appealed that decision, he had failed to exhaust his state remedies. App. at 48-50. With respect to the post-conviction petition, the magistrate credited the Commonwealth's assertion that no petition was ever filed, and concluded that "even if this were not the case, the fact that almost fifteen years has elapsed since Mayberry alleges he filed the petition, and the fact that the petitioner has not attempted to have the matter resolved, defies belief where an individual such as Mayberry who has extensive experience in the judicial system is the principal litigant." App. at 50. The district court adopted the magistrate's Report and Recommendation and dismissed Mayberry's petition. App. at 64.

II. Exhaustion

As a general rule, a state prisoner must exhaust state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. Sec. 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The requirement is not a mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). An exception, however, is made where the petitioner has no opportunity to obtain redress in the state court or where the state corrective process is so deficient as to render any effort to obtain relief futile. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam); see also 28 U.S.C. Sec. 2254(b). Mayberry alleges that this exception applies to his petition.

In finding that Mayberry failed to exhaust, the magistrate relied on the undisputed fact that Mayberry failed to appeal the nunc pro tunc order of January 29, 1975 denying his new trial motion. Mayberry argues that he could not have appealed from the order denying his new trial motion because neither the order purportedly signed on December 29, 1967 nor the nunc pro tunc order of January 29, 1975 was in fact filed. Mayberry points to the letter from then Assistant District Attorney Carol Mary Los (now Judge Mansmann) dated January 27, 1971, stating that she had been informed by the Clerk of Court's office that it could not find any record of the disposition of Mayberry's post-trial motions. App. at 80. Mayberry argues that this letter proves that no order was ever entered in 1967, and that this casts doubt on the 1975 nunc pro tunc order generally. Mayberry argues that the nunc pro tunc order was never docketed in the state courts and that he never received a copy of the order and thus, that he could not have appealed from it.

We note that the district court made no determination that Mayberry's motion for a new trial was...