Ray v. Howard

• Decision Date: 10 March 1980
• Docket Number: Civ. A. No. 79-4173.
• Citation: 486 F. Supp. 638
• Parties: Robert Allen RAY v. James F. HOWARD, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania, and The Attorney General of the State of Pennsylvania.
• Court: U.S. District Court — Eastern District of Pennsylvania

486 F. Supp. 638

Robert Allen RAY v. James F. HOWARD, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania and The Attorney General of the State of Pennsylvania.

Civ. A. No. 79-4173.

United States District Court, E. D. Pennsylvania.

March 10, 1980.

Robert Allen Ray, pro se.

Edward G. Biester, Jr., Atty. Gen., Com. of Pennsylvania, Harrisburg, Pa., for Com. of Pennsylvania.

OPINION AND ORDER

JOHN MORGAN DAVIS, Senior District Judge.

This pro se petition for writ of habeas corpus was filed by Robert Allen Ray and stems from his conviction on two counts of armed robbery. Petitioner is currently incarcerated at the State Correctional Institution in Pittsburgh, Pennsylvania, where he is serving a twenty year sentence, imposed on October 6, 1964, by the Common Pleas Court of Delaware County.

PRELIMINARY STATEMENT

Mr. Ray, through his attorney, initially filed a direct appeal of his armed robbery conviction in the Superior Court of Pennsylvania. This appeal was dismissed for "failure to proceed" on September 9, 1965.

Subsequently, Petitioner filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. § 1180-1, et seq., (hereafter "PCHA"), alleging ineffective assistance of court-appointed trial counsel and ineffective assistance of court-appointed appellate counsel in connection with his appeal. On January 23, 1973, the Common Pleas Court of Delaware County dismissed this PCHA petition and denied the requested relief.

A second PCHA petition was then filed, alleging ineffective assistance of court-appointed counsel in connection with the first PCHA petition. After granting Petitioner an evidentiary hearing, held on September 6, 1977, this second petition was also dismissed.¹ Without the assistance of counsel, Mr. Ray then filed an appeal from this dismissal, docketed on November 2, 1977.

In addition to his PCHA petitions filed in state court, Relator had concurrently filed with this Court a writ of habeas corpus, basing his claim for relief on (1) undue delay and ineffective state court process, thus a deprivation of his due process and equal protection rights, and (2) denial of effective assistance of trial counsel. After reviewing Petitioner's allegations, this Court denied on April 4, 1977, Mr. Ray's original petition for failure to exhaust state remedies, since Mr. Ray's second PCHA was still pending.

After the dismissal of this second PCHA claim by the state court, upon a motion to reinstate his original federal petition, this Court again denied relief. Petitioner had still not exhausted his state remedies since an appeal to the Superior Court was pending. In addition, this Court rejected Relator's arguments that existing circumstances warranted an exception to the exhaustion requirement. See United States ex rel. Ray v. James F. Howard, Superintendent, State Correctional Institution, No. 77-649 (E.D.Pa. January 5, 1978).

On July 9, 1979, Mr. Ray filed a third PCHA petition, alleging ineffective assistance of court-appointed counsel in connection with the second PCHA petition and his subsequent appeal from the denial of relief thereunder. This petition is still pending before the state court.

Presently before this Court for determination is Petitioner's second pro se petition for a writ of habeas corpus. Relator sets forth the following assertions as grounds for relief²:

(A) An absence of a state rule requiring state court action upon a PCHA petition within a reasonable time, thus resulting in an "inordinate delay" and infringing on Petitioner's constitutional rights;

(B) Improper and ineffective state court process and procedures, thus violating Petitioner's constitutional rights.

In addition to Petitioner's listing of the above two broad grounds for relief, the Court has interpreted and rephrased Mr. Ray's allegations to state the following additional claims:³

(C) Ineffective assistance of trial and appellate counsel;

(D) Ineffective assistance of counsel in all prior PCHA proceedings and appeals thereunder; and

(E) Denial of a fair trial, including the lack of a specific statement of the charges and an inability to prepare an adequate defense.

This Court, upon receipt of the instant habeas corpus petition, referred the matter to Magistrate Edwin Naythons for a preliminary review. Magistrate Naythons' Report and Recommendation determined that the petition should be denied without prejudice for failure to exhaust available state court remedies. An independent review of the entire record has convinced the Court that Magistrate Naythons' ultimate conclusion is correct. However, in order to more fully analyze the complex procedural history of this case and the legal points involved, I have chosen to set forth this opinion. The Court will, nevertheless, dismiss the petition for failure to exhaust available state remedies.

EXHAUSTION OF STATE REMEDIES

The Court will not consider any of the issues raised in the state prisoner's petition for habeas corpus relief until the Petitioner has exhausted available state remedies for all of the issues. See generally, 28 U.S.C. § 2254(b), (c) (Supp.1977); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

It is well established that "the purpose of the exhaustion doctrine is to permit the state courts to correct any errors which may have crept into their criminal process without interference from outside sources." U. S. ex. rel. Laughlin v. Russell, 282 F.Supp. 106, 110 (E.D.Pa.1968). The Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), has explained the history and rationale behind this doctrine:

It would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation . . .. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter. Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761. The rule of exhaustion "is not one defining power but one which relates to the appropriate exercise of power." Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455. Fay v. Noia, supra, 372 U.S. at 419-20, 83 S.Ct. at 838-839.

Thus, a fundamental goal of the "exhaustion doctrine" is to give state courts "one full chance" to rule on all the claims of a petitioner. United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 763-4 (3d Cir. 1978); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir. 1975). The state courts are to have the initial opportunity to pass upon and correct alleged violations of a state prisoner's federal rights. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). In addition, the Third Circuit has emphasized the rationale adopted in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), which "highlights the necessity for a searching scrutiny by the federal habeas court of the points that were raised in the state tribunals, in order to ensure that the state system was granted a fair opportunity to confront arguments that are propounded to the federal habeas courts." Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1977).

However, the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them. U. S. ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975). The federal court must determine whether the "same claim" or its "substantial equivalent" has been "fairly presented" to and considered by the state courts in order to insure that every claim raised in the habeas petition has been exhausted. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971).

PENDENCY OF PCHA PETITION

As previously indicated, Relator's third PCHA petition, filed on July 9, 1979, has not yet been acted upon by the state courts. This Court has recently held that a prisoner's pending PCHA petition will generally act as a bar to a finding of exhaustion of state court remedies, at least relative to those pending and unresolved issues that are identical or similar to those issues contained in the concurrent federal habeas petition. United States ex rel. Cunningham v. Cuyler, 479 F.Supp. 765 (E.D.Pa.1979); see also, U. S. ex rel. Geisler v. Walters, supra; U. S. ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978).

This case, as does Cunningham, demonstrates appropriate circumstances for the application of the exhaustion principles. Petitioner has asserted in his pending PCHA petition, ineffective assistance of counsel in connection with a previous PCHA petition and a subsequent appeal therefrom. Relator has also raised this identical issue in the present habeas petition. In such a factual setting, it would be inappropriate for the federal court to intervene. Proper deference to the state judicial system requires that "absent exceptional circumstances federal courts should stay their hands and permit the orderly functioning of the state appellate process." Codispoti v. Howard, 589 F.2d 135, 140 (3d Cir. 1978). This Court adheres to this sound principle and will therefore, refrain from considering the unexhausted issue until the state court has had an opportunity to consider this matter.

THE REMAINING CLAIMS

This does not dispose of the case sub judice, however, for the Court must further ascertain whether the remaining claims in Relator's petition are cognizable issues for the federal court to consider at this time. Since the exhaustion provision limits the authority of the federal courts to consider specific issues raised in the habeas...