Story v. Kindt

• Decision Date: 27 May 1994
• Docket Number: No. 92-3586,92-3586
• Citation: 26 F.3d 402
• Parties: Stanton T. STORY, Appellant, v. Warden Tom KINDT; Attorney General Preate.
• Court: U.S. Court of Appeals — Third Circuit

Page 402

26 F.3d 402

Stanton T. STORY, Appellant, v. Warden Tom KINDT; Attorney General Preate.

No. 92-3586.

United States Court of Appeals Third Circuit.

Argued Feb. 15, 1994.

Decided May 27, 1994.

Thomas S. White, Federal Public Defender, W. Penn Hackney, First Asst. Federal Public Defender, Michael D. Bartko (argued), Asst. Federal Public Defender, Pittsburgh, PA, for appellant.

Robert E. Colville, Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Thomas N. Farrell (argued), Asst. Dist. Atty., Pittsburgh, PA, for appellees.

Before: BECKER, HUTCHINSON and COWEN, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Stanton T. Story from an order of the United States District Court for the Western District of Pennsylvania denying his petition for a writ of habeas corpus on the ground that he had failed to exhaust available state court remedies. Story contends that we must excuse the exhaustion requirement because the nine-year delay in his post-conviction collateral proceedings in the Court of Common Pleas of Allegheny County was inordinate. We agree. We therefore reverse the order of the district court and remand the case for consideration of Story's habeas petition on the merits. In doing so we note that it seems likely that Story would not have suffered this delay had the Court of Common Pleas maintained a central docket sheet for each criminal case rather than a system which merely lists entries in the order of their filing. This method makes it difficult to determine whether or when a particular order was filed, and we urge that the Court remedy the deficiency so as to avoid similar delays in the future.

I. PROCEDURAL HISTORY

A. The Underlying Conviction

In October 1979, Story was convicted for the first degree murder of Police Officer Patrick Wallace and sentenced to death. Story appealed his conviction and sentence to the Supreme Court of Pennsylvania, which affirmed the judgment of conviction but vacated the death sentence and imposed a sentence of life imprisonment. Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981). ¹

B. State Collateral Proceedings

In July 1983, Story, acting pro se, sought post conviction collateral relief in the Court of Common Pleas of Allegheny County pursuant to Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S. Secs. 9501-9543. ² The Court appointed Jack Conflenti of the Allegheny County Public Defender's Office to represent him. Although ordered to file an amended petition on Story's behalf, Conflenti failed to do so. As a result, on February 10, 1984, the pro se petition was denied without a hearing.

Story appealed the denial of PCHA relief to the Superior Court of Pennsylvania. On April 19, 1985, that court vacated the trial court's judgment and remanded the matter for appointment of new counsel and other necessary proceedings. On June 5, 1985, the Court of Common Pleas appointed George C. Entenman to pursue Story's collateral claims by filing an amended PCHA petition. According to Story, he attempted to contact Entenman on several occasions to urge the filing of an amended petition, and even sent family members to Entenman's office for the same purpose, but Entenman failed to comply with the Court's order.

Nearly eleven years after Conflenti failed to file an amended petition, and nearly nine years after Entenman failed to act as well, Story's PCHA petition remains in the Court of Common Pleas. The only activity on Story's petition since June 5, 1985, has been the recent appointment of his third PCHA attorney (Jerome DeRiso) on February 24, 1993, and the filing of an amended petition a year later on February 14, 1994.

C. The Federal Habeas Proceedings

In February 1992, Story filed a pro se petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254, which eventually reached the District Court for the Western District of Pennsylvania. ³ In addition to raising three substantive claims, ⁴ Story's habeas petition related his inability to contact Entenman and his frustration that, after several years, there had been no disposition on his PCHA petition. The Commonwealth filed a response in which it asserted that the habeas petition should be denied for failure to exhaust all claims therein or, in any event, because the claims were without merit.

The matter was referred to a magistrate judge who, despite Story's revelations of state court delay, recommended that the district court dismiss the petition for failure to exhaust state court remedies. ⁵ Story filed objections, in which he again asserted that, under the circumstances, the state process was ineffective to protect his rights, and that, in accord with 28 U.S.C. Sec. 2254(b), ⁶ it would be futile to require him to exhaust his state remedies. By order entered September 17, 1992, the district court adopted the magistrate judge's Report and Recommendation, dismissed the petition, and denied Story's request for the issuance of a certificate of probable cause.

Story timely appealed, again seeking the issuance of a certificate of probable cause. A motions panel of this Court found probable cause to appeal and issued the certificate on May 28, 1993. ⁷ Since this is an appeal from a final order dismissing Story's pro se petition for writ of habeas corpus, we have appellate jurisdiction pursuant to 28 U.S.C. Sec. 1291. We exercise plenary review over the district court's determination that state remedies have not been exhausted and should not be excused. Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.1991).

II. EXHAUSTION OF STATE REMEDIES

Generally, a state prisoner seeking federal habeas relief must present each of his claims to the state's highest court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971); Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982). However, exhaustion is not jurisdictional, but a matter of comity. See id., 455 U.S. at 515, 102 S.Ct. at 1201. The federal courts need not defer to the state judicial process when no appropriate remedy exists at the state level or when the state process would frustrate the use of an available remedy. See 28 U.S.C. Sec. 2254(b); Hankins, 941 F.2d at 249.

We observed in Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986) that "inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable," thereby prompting the federal court to excuse exhaustion. Although the existence of an inordinate delay does not automatically excuse exhaustion, it does shift the burden to the state to demonstrate why exhaustion should still be required--a burden that is difficult to meet. See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987), cert. denied, --- U.S. ----, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992); Wojtczak, 800 F.2d at 355.

In Wojtczak, for example, we dealt with a 33-month delay in deciding a post-conviction petition, finding it sufficient to excuse exhaustion. Id. at 356. We have also found delays of eleven, five, twelve and three years sufficient to excuse exhaustion. See Hankins, 941 F.2d at 247 (eleven years to decide motion to withdraw guilty plea sufficient to excuse exhaustion requirement); Burkett, 826 F.2d at 1218 (five year delay sufficient to excuse exhaustion); Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir.1978) (twelve years to decide new trial motion); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir.1973) (three year delay in deciding PCHA petition); see also United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975) (stating in dicta that three years and four months to decide motion for new trial was inordinate delay sufficient to obviate the exhaustion requirement).

Story has demonstrated, and the Commonwealth has not denied, that he has suffered significant delay at the hands of the Court of Common Pleas for Allegheny County. The Commonwealth maintains, however, that its interest in deciding in the first instance issues raised concerning the prosecution of an alleged murderer, especially one who killed a state law enforcement officer, outweighs any delay he has suffered. The Commonwealth also claims that any delay was due to Story's own failure to alert the Court of Common Pleas that the court had not yet ruled on his PCHA petition. ⁸ Finally, the Commonwealth points to the recent progress on Story's PCHA petition, and urges this Court to defer to the state process.

We find the facts in this case to be as egregious as those in the cases cited above. During the nearly eleven years of his PCHA proceedings, Story has had three court-appointed attorneys, two who failed to comply with a Court of Common Pleas order to file an amended petition on Story's behalf, and one (the most recent) who took nearly a year to comply with a similar order. More importantly, however, the Court of Common Pleas neglected Story's case for almost eight years, apparently because of what appears to be seriously deficient docket management procedures, see infra, taking action only after it received notice of Story's federal petition.

We find it wholly untenable to penalize Story for his attorneys' failures and the Court of Common Pleas' inability to manage its own docket. Nor do we consider recent progress on Story's PCHA petition sufficient to require him to afford the state's courts three more years, ⁹ in addition to the nearly nine already consumed. ¹⁰ The Commonwealth simply has not met its burden to show why, in light of its inordinate and inexcusable delay, we should not excuse exhaustion. We will therefore reverse the order dismissing the habeas petition and remand the case to the district court with directions to entertain Story's petition on the merits.

III. THE ALLEGHENY COUNTY DOCKETING SYSTEM

When we searched for some reasonable explanation for the Court's failure to act on Story's PCHA petition for such a lengthy period of time, we concluded that...