U.S. ex rel. Geisler v. Walters

• Decision Date: 16 December 1974
• Docket Number: No. 74--1345,74--1345
• Citation: 510 F.2d 887
• Parties: UNITED STATES of America ex rel. Theodore GEISLER, Appellant, v. Gilbert A. WALTERS, Superintendent, Western Correctional Institution, Pittsburgh, Pennsylvania. . Final Submission
• Court: U.S. Court of Appeals — Third Circuit

Page 887

510 F.2d 887

UNITED STATES of America ex rel. Theodore GEISLER, Appellant, v. Gilbert A. WALTERS, Superintendent, Western Correctional Institution, Pittsburgh, Pennsylvania.

No. 74--1345.

United States Court of Appeals, Third Circuit.

Final Submission Dec. 16, 1974.

Decided Feb. 5, 1975.

Joseph N. Bongiovanni, III, Speese & Kephart, Philadelphia, Pa., for appellant.

John J. Hickton, Dist. Atty. of Allegheny County, John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.

Before BIGGS, ADAMS and GARTH, Circuit Judges.

OPINION OF THE COURT

BIGGS, Circuit Judge.

This is an appeal from the district court's dismissal without a hearing of the relator-appellant's, Geisler's, application for habeas corpus. The district court ruled that Geisler had failed to exhaust his state remedies. The instant appeal followed. Its disposition requires our examination of the complicated history of Geisler's various motions and petitions and a determination of whether he has either exhausted his state remedies or been victimized by circumstances rendering those remedies ineffective. 28 U.S.C. § 2254(b).

I. FACTUAL BACKGROUND

Geisler was tried by a jury on October 19, 1962 for armed robbery and violation of the Uniform Firearms Act. ¹ His trial was conducted by Judge Robert Morris of the Pennsylvania Court of Common Pleas. Geisler was found guilty on both counts, and his counsel filed a motion for a new trial but subsequently withdrew it. On February 15, 1963, Geisler was sentenced to a term of 7 1/2 to 15 years. At a hearing on March 3, 1963, his counsel requested leave to argue the original motion for a new trial. Leave was denied.

In 1964, Geisler filed a petition for habeas corpus in the state court. ² Judge Morris dismissed that petition without a hearing on October 6, 1964 because it raised issues which he deemed were not properly before him in a habeas corpus proceeding. On appeal, the Pennsylvania Superior Court affirmed per curiam. Commonwealth ex rel. Geisler v. Maroney, 205 Pa.Super. 739, 209 A.2d 437 (1965). The Pennsylvania Supreme Court denied allocatur on August 30, 1965.

Geisler then filed a pro se petition pursuant to the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180--1 et seq., on October 23, 1967. ³ On March 7, 1968 Judge Morris conducted a hearing on the petition, having appointed the Allegheny County Public Defender as counsel for Geisler. The issue was stated to be whether Geisler had been deprived of his right to appeal. On March 4, 1969, Judge Morris filed an opinion and order dismissing the PCHA petition but permitting Geisler to file a motion for a new trial nunc pro tunc. The Public Defender again served as counsel for Geisler. On June 27, 1969, Geisler filed pro se a motion for a new trial, as follows: (1) he was denied effective assistance of counsel; (2) the identification was so impermissibly suggestive as to be constitutionally infirm; (3) the trial court erred in permitting introduction into evidence of the appellant's prior record of convictions under the Uniform Firearms Act; (4) the admission of prejudicial and unrelated evidence was improper; (5) his arrest was without probable cause; (6) the Assistant District Attorney engaged in prosecutorial misconduct; (7) the trial judge's charge to the jury denied Geisler a fair trial; and (8) the jury's double verdict resulted in double jeopardy to the appellant.

On December 17, 1969, six months after the motion for new trial was filed, a court consisting of Judge Morris and Judge Samuel J. Feigus heard oral argument on the motion and took it under advisement. On April 27, 1970, ten months after Geisler filed his motion of June 27, 1969 for a new trial, and again on July 16, 1970, thirteen months after the filing of his motion for a new trial on June 27, 1969, Geisler filed petitions for disposition of his motion for a new trial. These petitions were identical, the second having been filed because the first did not reach the clerk's office. In substance, they were a procedural request that Judge Morris act immediately on the motion for a new trial and not a substantive enumeration of Geisler's claims. While appellant specifically elaborated upon several contentions, including denial of effective assistance of counsel and prejudice arising from introduction into evidence of appellant's prior record, the petition also referred to appellant's motion for a new trial and the oral argument on that motion.

On September 11, 1970, fifteen months after Geisler had filed his motion for a new trial, Judge Morris filed the following opinion and order:

'This matter is before the Court on a Petition which the Defendant describes as a 'Petition for Disposition and Remedy as a Matter of Law, a New Trial.'

'Upon a careful review of the Petition in the light of the petitions heretofore hearing held, Orders made by this Court as well as the Superior Court, we can see nothing in the Petition of a meritorious nature.

'On March 4, 1969, this Court filed its Opinion and Order granting to the Defendant the right to file a motion for new trial, nunc pro tunc. This Order was made as a result of a Post Conviction Petition filed by the Defendant alleging previously that he had been improperly denied his right of appeal. After hearing and testimony taken the Order granting him the right to appeal was made. For reasons known only to the defendant, no action was taken by the defendant to perfect such appeal. We refer to our Opinion and Order of March 4, 1969, wherein we review the case from its inception. We see no merit to Defendant's allegations. Accordingly, we make the following ORDER. AND NOW, September 11, 1970, for the reasons stated above the prayer of the Petition is denied and the Petition is dismissed' (emphasis added).

The foregoing opinion of the learned Pennsylvania trial judge is not entirely clear, but his order is clear enough for he states that 'the prayer of the Petition is denied and the Petition is dismissed.' It would appear to us that, whatever may have been in the mind of Judge Morris, the order of September 11, 1970 was an appealable final order.

Geisler appealed this decision to the Pennsylvania Superior Court, which granted him leave to file a brief pro se in addition to the brief which the Public Defender filed in his behalf. The Public Defender's brief dealt only with the identification issue. Geisler's pro se brief raised all the issues which had been contained in the motion for a new trial. It argued as well that appellant had been denied a fair trial and effective assistance of counsel at all proceedings subsequent to trial. On June 30, 1971, the Superior Court affirmed the judgment of sentence per curiam. Commonwealth v. Geisler, 218 Pa.Super. 911, 279 A.2d 198 (1971). Both appellant and the Public Defender then petitioned for allocatur to the Supreme Court of Pennsylvania. Geisler's petition contained all eight issues raised in the motion for a new trial. Those petitions were denied per curiam on January 14, 1972. ⁴

Geisler then turned to the federal courts for relief and filed a petition for habeas corpus on March 20, 1972 in the United States District Court for the Western District of Pennsylvania. ⁵ The Honorable Joseph Weis, then a district court judge, conducted a hearing on August 28, 1972 to determine whether an evidentiary hearing should be held on the petition. Judge Weis concluded that the exhaustion requirement had not been met. Possibly confusion arose from the fact that Geisler filed two petitions for disposition of his motion for a new trial. The learned district judge apparently took the view that Geisler's motion for a new trial had not been disposed of on the merits by Judge Morris and that the Court of Common Pleas had disposed only of the petitions asking disposition of his motion for a new trial. Regardless of the basis for this decision, Judge Weis, having concluded that Judge Morris' order and opinion of September 11, 1970 were not a disposition of Geisler's motion for a new trial, advised President Judge Ellenbogen of the Allegheny County Court of Common Pleas of this discovery by letter on August 30, 1972 and requested that his court formally dispose of the motion. On October 24 1972 Judge Morris formally denied the appellant's motion for a new trial. On October 26, 1972, Judge Weis dismissed Geisler's federal habeas corpus petition for failure to exhaust state remedies. The United States District Court denied appellant's motion for reconsideration, and this court denied a certificate of probable cause on March 1, 1973 (C.A. Misc. Rec. No. 72--8114). We cannot agree with Judge Weis' conclusion that Judge Morris' decision and order of September 11, 1970 were not a sufficient disposition of Geisler's claims for the purpose of exhaustion of state remedies.

It should be observed that three years and four months passed before the post trial motion was 'formally' disposed of by the Court of Common Pleas, viz., the period from June 27, 1969 to October 24, 1972. Nor perhaps would disposition have been made even on this late date had it not been for the letter of Judge Weis to Judge Ellenbogen.

Geisler next moved to appeal Judge Morris' order of October 24, 1972 in the Pennsylvania Superior Court. ⁶ In a per curiam affirmance of that judgment the Superior Court on September 19, 1973 denied appellant's application for the third time. ⁷ Commonwealth v. Geisler, 226 Pa.Super. 722, 309 A.2d 817 (1973).

Then occurred what we deem to be a curious circumstance. In the first federal habeas corpus proceeding, that of March 20, 1972, a United States Magistrate appointed as counsel for Geisler a member of the bar of Allegheny County. Counsel continued to advise appellant after the case returned to the state tribunals and, when the Superior Court rejected Geisler's appeal on September 19, 1973, wrote Geisler that h...