Ross v. Petsock

• Decision Date: 28 February 1989
• Docket Number: No. 88-5528,88-5528
• Citation: 868 F.2d 639
• Parties: ROSS, Jeffrey Nead, Appellant, v. PETSOCK George, Superintendent SCIP Attorney General of the State of Pa.
• Court: U.S. Court of Appeals — Third Circuit

Page 639

868 F.2d 639

ROSS, Jeffrey Nead, Appellant, v. PETSOCK George, Superintendent SCIP Attorney General of the State of Pa.

No. 88-5528.

United States Court of Appeals Third Circuit.

Argued Jan. 24, 1989.

Decided Feb. 28, 1989.

Robert B. MacIntyre, (argued) Harrisburg, Pa., for appellant.

Richard A. Lewis, Dist. Atty., Todd B. Narvol (argued), Deputy Dist. Atty., Harrisburg, Pa., for appellees.

Before GIBBONS, Chief Judge, and SEITZ and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter is before us on appeal from an order of June 3, 1988, denying the petition of Jeffrey Nead Ross for habeas corpus relief under 28 U.S.C. Sec. 2254 on the ground that he has failed to exhaust available state remedies. Our review is plenary. Chaussard v. Fulcomer, 816 F.2d 925, 927 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987).

These are the facts. Ross was indicted for murder in Dauphin County, Pennsylvania. Although he originally pleaded not guilty, on June 23, 1980, on the eve of trial, while represented by an attorney, he changed his plea to guilty in the Dauphin County Court of Common Pleas. The following day he unsuccessfully sought to withdraw the plea. The judge then conducted a hearing to determine the degree of guilt and found Ross guilty of murder in the second degree and sentenced him to life imprisonment. Ross appealed to the Supreme Court of Pennsylvania, which affirmed his conviction in a reported opinion. The court indicated that Ross claimed his plea of guilty was not voluntarily entered and that the trial court erred in denying his request to withdraw it. The Supreme Court held that the claim of involuntariness was "refuted by the record" and that the request to withdraw the plea after dismissal of "numerous key Commonwealth witnesses in reliance on the plea" was properly denied. Thus the judgment was affirmed. Commonwealth v. Ross, 498 Pa. 512, 447 A.2d 943 (1982). ¹

Ross subsequently filed a petition in the Court of Common Pleas of Dauphin County under the Pennsylvania Post Conviction Hearing Act, 42 Pa.Cons.Stat.Ann. Sec. 9541 et seq. (Purdon 1982) (now superseded). In his brief on this appeal he characterizes the claims he made as follows:

Specifically he claimed his plea of guilty had been unlawfully induced and that he was denied his constitutional right to representation by competent counsel. The facts alleged in support of his claims, both in the pro se petition and the counselled amendment thereto, included trial counsel's advice that trial by jury would result in the death penalty and trial counsel's failure to vigorously pursue the petition to withdraw the guilty plea. It was alleged that trial counsel did not spend sufficient time with petitioner to be able to adequately explain to the court the reasons for withdrawal of the plea nor were adequate legal arguments prepared in support of the withdrawal request.

The respondents make no exception to this characterization.

On June 23, 1985, the Common Pleas judge rendered an opinion reading in germane part as follows:

Mr. Ross's petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. Sec. 9541 et seq., raises eight issues, seven of which deal with the voluntariness of his plea. Since this matter has been finally litigated, 42 Pa.C.S.A. Sec. 9544(a), petitioner is not eligible for relief. 42 Pa.C.S.A. Sec. 9543(4). The remaining issue, trial counsel's alleged ineffectiveness for not filing pre-trial motions, is absolutely frivolous because the record includes an Omnibus Pre-Trial Motion filed on behalf of petitioner.

Thus, the judge denied the petition without a hearing. Ross did not appeal from the order denying his state petition, an omission he attributes to "faulty advice from 'jail house lawyers.' "

On May 4, 1988, Ross filed the petition under 28 U.S.C. Sec. 2254 in the United States District Court for the Middle District of Pennsylvania which has led to this appeal. This petition was referred to a magistrate who in his report and recommendation indicated that:

The petitioner filed the present petition for writ of habeas corpus setting forth the following grounds for relief: (1) His conviction was 1. 'obtained by a plea of guilty which was not made voluntarily with understanding of the nature and consequences'; and (2) 'Trial counsel was ineffective.' Id. at pp. 4, 5, paras. A, B. In connection with the latter ground, he states that by entering the plea he was 'covering' for one Edrington and for that reason, wanted to withdraw the plea, although as hereinafter noted, he never told trial counsel this reason for wanting to withdraw the plea.

The magistrate recommended that the petition be dismissed, as he concluded that:

In the present case, the petitioner indicates that, with regard to his PCHA petition, he 'was advised by jailhouse lawyers not to appeal his PCHA, as it was not meritorious.' Therefore, the petitioner clearly has not exhausted his state court remedies. Furthermore, he states that '[p]etitioner argued in his PCHA Petition that trial counsel was ineffective, although he did not specifically argue that counsel was ineffective for the reason stated [in this petition],' that is, by not bringing to the court's attention that petitioner was 'covering' for Edrington, a fact about which petitioner never informed his counsel. He states that he never told his counsel about this because he was ambivalent about naming Edrington. He seems to contend, however, that if counsel vigorously questioned him about the reason he wanted to withdraw his plea, this real reason about 'covering for Edrington' may have been disclosed by petitioner. Although this ground is absurd, nevertheless, as to his present claim of ineffective assistance of counsel, this claim clearly was not presented in the same context to the state court in his PCHA petition. (Omitting citations.)

On June 3, 1988 the district judge signed an order adopting and approving the report of the magistrate and denying the petition. This appeal followed.

Certain basic principles govern this appeal. A state prisoner seeking federal habeas relief must have exhausted the remedies available in the state courts. Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir 1987). To demonstrate compliance with the exhaustion requirements, a habeas applicant must show that the federal claim he asserts in the federal court has been fairly presented to the state courts. 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). It is not enough for the petitioner to show that he has presented the facts on which the federal claim is based to the state court. Id. Rather, the argument raised in the federal court must be the substantial equivalent of that presented to the state courts. Id. at 73-74. Both the legal theory and the facts supporting a federal claim must have been submitted to the state court. O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir.1987). Thus, the same method of analysis presented to the district court must have been made available to the state courts. Chaussard v. Fulcomer, 816 F.2d at 928.

Ross does not deny that his basis for now challenging the effectiveness of his attorney, that the attorney never mentioned to the trial court that Ross was "covering" for Edrington and was incompetent for not questioning him and finding this out, was never presented to the Pennsylvania courts, either on his direct appeal or in his petition under the Post Conviction Hearing Act. Instead he asserts that under Pennsylvania law he no longer has a forum in the state courts in which this claim may be advanced. ²

In this regard Ross asserts that it was the adoption of the Pennsylvania Post Conviction Relief Act (Act 47) on April 13, 1988, that destroyed his state remedies. Act 47 has been codified at the same sections as the prior Post Conviction Hearing Act. 42 Pa.Cons.Stat.Ann. Sec. 9541 et seq. (Purdon June 1988 Supp.). Under Act 47 Sec. 9544(a) an issue is deemed previously litigated if it has been raised in the trial court which has ruled on the merits and the petitioner did not appeal. Ross claims that this section bars him from challenging the voluntariness of his plea because he failed to appeal from the order denying his petition under the Post Conviction Hearing Act and because under Act 47 Sec. 9543(3) he cannot raise a previously litigated allegation of error. He also contends that under Act 47 Sec. 9544(b) he cannot raise the issue of ineffective assistance of counsel because he could have raised it on his direct appeal or on his petition under the Post Conviction Hearing Act and by not doing so he has waived it. ³

The difficulty with Ross's position is that inasmuch as he did not raise the ineffective attorney argument in the state courts on the basis now advanced the claim has not been "previously litigated" by reason of having been rejected in the trial court. Nor can the claim be deemed previously litigated by reason of having been "raised and decided in a proceeding collaterally attacking the conviction or sentence." See Act 47 Sec. 9544(a)(3). ⁴

We acknowledge, however, that since this claim of ineffective representation could have been advanced in the Post Conviction Hearing Act proceeding it has been "waived" in the Pennsylvania courts. Act 47 Sec. 9544(b). But under the Post Conviction Relief Act waivers are not absolute. Thus, Act 47 Sec. 9543(a)(3)(ii) permits allegations of error to be considered if not previously litigated, even if waived, if the alleged error has resulted in the conviction of an "innocent individual." Inasmuch as Ross claims that by pleading guilty he was covering for Edrington his petition comes within that section. Further, Act 47 Sec. 9543(a)(3)(iii) provides that an allegation of error not previously litigated, though waived, may be considered if it "does not constitute a State procedural default barring Federal...