Sweger v. Chesney
| Decision Date | 27 June 2002 |
| Docket Number | No. 00-3174.,00-3174. |
| Citation | 294 F.3d 506 |
| Parties | Nevin G. SWEGER, Jr., Appellant, v. Joseph W. CHESNEY; District Attorney of the County of Cumberland; Attorney General of the State of Pennsylvania. |
| Court | U.S. Court of Appeals — Third Circuit |
Peter Goldberger [argued], Law Office of Peter Goldberger, Ardmore, PA, for appellant.
Jaime M. Keating [argued], Chief Deputy District Attorney, Cumberland County Courthouse, Carlisle, Pennsylvania, for appellees.
Before: ROTH, FUENTES, and WEIS, Circuit Judges.
Petitioner Nevin G. Sweger, Jr. appeals from the District Court's denial of his petition for a writ of habeas corpus. A Pennsylvania jury convicted Sweger in May 1984 of the first-degree murder of his wife, and the state court sentenced him to life imprisonment. Sweger then embarked on a lengthy and tortuous post-conviction review process, which included a direct appeal, two post-conviction relief petitions filed in state court, and a federal habeas application. In his federal petition, Sweger asserts numerous claims of error relating to his trial and direct appeal.
The District Court dismissed all of Sweger's claims. The court concluded that some of his claims were time-barred by the one-year period of limitation under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), while one of his claims had been procedurally defaulted. Sweger's primary contention on appeal is that the District Court erred in applying the one-year period on an issue-by-issue basis. He argues that the limitations period for his entire habeas petition should have been tolled under 28 U.S.C. § 2244(d)(2) during the time that his second post-conviction relief petition attacking his conviction was pending in state court, even though some of his federal habeas issues were already fully exhausted before the filing of the second state petition.
We agree. We hold that under § 2244(d)(2), the AEDPA limitations period for a habeas corpus petition, including all issues presented in that petition, is tolled during the pendency of a state post-conviction proceeding which challenges the same judgment as does the habeas petition. The District Court, however, did not err in its dismissal of one of Sweger's claims on the basis of procedural default. We therefore affirm in part and reverse in part, and remand this case to the District Court for it to consider the merits of the claims improperly dismissed as time-barred.
Sweger fatally shot his estranged wife four times with a shotgun, then shot himself in the chin but survived. At his state court trial for murder, Sweger argued that he was under the influence of drugs and alcohol on the day of the shooting, and that he should therefore not be eligible for a first-degree murder conviction, but only for a third-degree conviction. In May 1984, a jury in the Court of Common Pleas for Cumberland County, Pennsylvania convicted Sweger of first-degree murder. The court sentenced him to life imprisonment without parole. After his post-trial motions were denied, Sweger filed a direct appeal to the Pennsylvania Superior Court raising five issues, including challenges to the jury instructions on homicide and on the intoxication defense. In February 1986, the Superior Court denied Sweger's appeal. The Pennsylvania Supreme Court denied Sweger's petition for allowance of appeal in January 1987.
Over six years later, in 1993, Sweger filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.Cons.Stat. §§ 9541, et seq. Counsel was appointed and Sweger raised just one issue: ineffective assistance of counsel based on trial and appellate counsels' alleged failure to raise and preserve the issue of the trial court's refusal to allow individual voir dire on juror prejudices regarding alcohol. After an evidentiary hearing in March 1994, the trial court denied the petition. The Pennsylvania Superior Court affirmed on October 13, 1994 and the Pennsylvania Supreme Court denied Sweger's petition for allowance of appeal on March 20, 1995.
On February 1, 1996, Sweger filed a second pro se PCRA petition, raising seven claims of ineffective assistance of counsel.1 The court appointed counsel for the seventh issue only, and informed Sweger that it intended to dismiss the other six issues as meritless but would permit Sweger to proceed pro se and file his own brief on the other six issues. After a hearing on the one counseled issue and review of Sweger's pro se brief on the other six, the court denied the second PCRA petition on July 12, 1996. The court ordered counsel to file an appeal only with respect to the seventh issue, and noted that Sweger could appeal the other issues pro se.
In February 1997, almost three months after the procedural deadline for filing, Sweger filed an application with the Superior Court to file a pro se brief nunc pro tunc (retroactive to a timely filing) on the other six issues.2 The Superior Court rejected Sweger's pro se application as time-barred, and also affirmed the trial court on the seventh issue, which had been timely briefed by court-appointed counsel. Sweger filed a petition for allowance of appeal on the other six issues with the Pennsylvania Supreme Court. Soon after, court-appointed counsel also filed a petition for allowance of appeal on the seventh issue. The Prothonotary of the Pennsylvania Supreme Court informed Sweger that two petitions for allowance of appeal had been filed and that Pennsylvania appellate rules prohibited dual representation, so his pro se petition for allowance of appeal was discontinued and closed. After Sweger wrote a letter to the Prothonotary requesting reconsideration of his pro se filing, the Prothonotary told Sweger that he could file an application requesting leave to file a petition for allowance of appeal. Sweger so applied, and on July 29, 1997, the Pennsylvania Supreme Court denied both Sweger's application and his counsel's petition for leave on the seventh PCRA claim.
Sweger filed this federal petition for writ of habeas corpus pro se in the Eastern District of Pennsylvania on April 1, 1998. On September 15, 1998, the petition was transferred to the Middle District of Pennsylvania, where Sweger is currently incarcerated at SCI-Frackville. Sweger's habeas petition raised five claims:
A. Ineffective assistance of trial counsel based on counsel's denial of Sweger's right to testify.
B. Ineffective assistance of trial counsel in failing to preserve the issue of denial of individual voir dire.
C. Disposition by the Pennsylvania Superior Court on direct appeal of challenges to jury instructions in a manner contrary to U.S. Supreme Court precedent.
D. Disposition by the Pennsylvania Superior Court on direct appeal of challenges to the admission of evidence in a manner contrary to Pennsylvania Supreme Court precedent.
E. Ineffective assistance of trial counsel as to three issues: 1) failure to argue Sweger's Miranda rights; 2) failure to object to false testimony; and 3) failure to investigate fully and prepare for trial.3
Issue A was raised by court-appointed counsel in Sweger's second PCRA petition and exhausted when the Pennsylvania Supreme Court denied review on July 29, 1997. Issue B was raised in Sweger's first PCRA petition and exhausted when the Pennsylvania Supreme Court denied the petition for appeal on March 20, 1995. Issues C and D, raised on direct appeal, were exhausted when the Pennsylvania Supreme Court denied Sweger's petition for appeal on January 9, 1987. Issue E was raised as part of Sweger's pro se claims in the second PCRA petition, and exhausted also on July 29, 1997.
On October 7, 1998, a Magistrate Judge issued a Report and Recommendation to the District Court, concluding that the petition should be dismissed under Rose v. Lundy, 455 U.S. 509, 518-21, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because it contained both exhausted claims (Issues A-D) and what the Magistrate Judge deemed to be an unexhausted claim (Issue E). The Magistrate Judge also suggested that Issues B, C, and D were time-barred by the one-year statute of limitations imposed by the AEDPA. See 28 U.S.C. § 2244(d)(1)(A).
The District Court adopted the Magistrate Judge's report in part and rejected it in part. The court agreed with the Magistrate Judge that Issues B, C, and D were time-barred. The court applied the AEDPA limitations period to each issue individually, reading the AEDPA to allow that "potential petitioners could file claims under § 2254 on or before April 23, 1997, for all claims arising before the effective date." App. at 28 (emphasis added). Examining each claim individually, the court concluded that, because Sweger exhausted his state remedies as to Issues B, C, and D before April 24, 1996, the effective date of the AEDPA, the statute of limitations on these claims extended until April 23, 1997. Since Sweger did not file his habeas petition until nearly a year later — on April 1, 1998 — the court dismissed issues B, C, and D as time-barred. The court held that Issues A and E were timely presented because Sweger's habeas petition was filed within one year of July 29, 1997, the date on which those issues were exhausted in state court. Id. at 29-30.
Regarding Issue E, the court held that the claim was constructively exhausted but procedurally defaulted because Sweger's pro se, nunc pro tunc application to file his untimely brief with the Pennsylvania Superior Court, and his application for leave to file a petition for allowance of appeal to the Pennsylvania Supreme Court, were both denied on procedural grounds. The District Court remanded for the Magistrate Judge to consider the merits of Issue A and whether Sweger could meet his burden of demonstrating cause and prejudice to excuse the...
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