United States ex rel. Hankins v. Wicker

• Decision Date: 13 March 1984
• Docket Number: Civ. A. No. 84-70 Erie.
• Citation: 582 F. Supp. 180
• Parties: UNITED STATES of America ex rel. Harold Lee HANKINS v. Emanuel WICKER.
• Court: U.S. District Court — Eastern District of Pennsylvania

582 F. Supp. 180

UNITED STATES of America ex rel. Harold Lee HANKINS v. Emanuel WICKER.

Civ. A. No. 84-70 Erie.

United States District Court, W.D. Pennsylvania.

March 13, 1984.

MEMORANDUM OPINION

WEBER, District Judge.

The petitioner, Harold Lee Hankins, a state prisoner, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, accompanied by a request to proceed in forma pauperis. We shall grant the request, order the petition filed without charge to the petitioner, and order that the respondent file an answer to the petition.

Hankins was convicted in the Court of Common Pleas of Erie County, Criminal Division, on charges of robbery and theft on May 19, 1981, following a one day trial. He was sentenced to concurrent terms of imprisonment, the most severe of which was from five to ten years, on February 12, 1982.¹ He was removed to the State Correctional Institution at Huntingdon, Pennsylvania. A notice of appeal was filed by counsel for the petitioner on March 9, 1982. Hankins' appeal is currently pending in the Superior Court of Pennsylvania at No. 295 Pittsburgh, 1982. Oral argument was heard on January 24, 1984 but no disposition has been made. Hankins has also been sentenced to serve a term of ten to twenty years on an unrelated charge after the completion of the sentence arising from the judgment currently under attack. This latter sentence was imposed by the Court of Common Pleas of Crawford County.

Hankins recites several grounds upon which the allegation of unlawful confinement is based. First, he asserts a violation of due process and equal protection because of a twenty-one month delay in the disposition of his direct appeal. Second, he contends that at trial he was denied the representation of counsel of his choice in that he was denied sufficient time to retain private counsel and was forced to proceed to trial represented by the Public Defender. He argues that as a result he was denied sufficient time to adequately prepare. Hankins contends that these circumstances amounted to a violation of his right to counsel guaranteed by the 6th and 14th Amendments. In a third and related averment, Hankins argues that he is being denied effective representation on appeal due to the absence of portions of the lower court record. And finally, Hankins alleges that he was arbitrarily denied the opportunity to file pretrial motions to suppress illegally obtained evidence.

I. Exhaustion of State Remedies.

Ordinarily, federal habeas corpus relief is only available after an exhaustion of state remedies. 28 U.S.C. § 2254(b). Federal courts must stay their hand and permit the state appellate process to take its course. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). This assures appropriate deference to the state system in accord with traditional notions of comity.² It guarantees that the state system shall be afforded the opportunity to rectify its own errors as well as assume its proper place in the consideration of alleged constitutional deprivations. It is also well settled that this doctrine requires the exhaustion of remedies and not the exhaustion of the petitioner in his pursuit of appellate relief following a conviction. An inordinate delay in the state proceedings may form an adequate basis for federal habeas corpus relief. Section 2254(b) provides a statutory basis for an exception to the exhaustion requirement where it appears that a petitioner's state afforded right to a meaningful appeal has been frustrated. It provides, in pertinent part:

(b) An application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

The doctrine of exhaustion turns on the availability of state remedies sufficient to allow petitioner to have his federal claims considered as he moves through the state system. If an appropriate remedy does not exist or its utilization is frustrated in the state system, and the door to the federal court is closed by virtue of the exhaustion requirement, there exists no forum for the consideration of petitioner's constitutional claims. The deference accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations. The essential feature of the extraordinary relief fashioned by Congress is the ability to cut through the barriers of form and procedure. Hensley v. Municipal Court, 411 U.S. 345, 349-350, 93 S.Ct. 1571, 1573-74, 36 L.Ed.2d 294 (1973); Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). Congress intended that the writ be preserved as a "swift and imperative remedy in all cases of illegal restraint or confinement." Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973).

Justice Rutledge articulated the rationale which has sustained the well-reasoned exception to the exhaustion requirement. He stated:

... It would be nothing less than abdication of our constitutional duty and function to rebuff petitioners with this mechanical formula whenever it may become clear that the alleged state remedy is nothing but a procedural morass offering no substantial hope of relief. Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170 (1947), (Rutledge, J., concurring).

The Supreme Court stated in Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963), "where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceedings." The Third Circuit in Zicarelli v. Gray, 543 F.2d 466, 472 (3rd Cir.1977) emphasized the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), and the necessity of a federal court to scrutinize whether the state system granted a fair opportunity to consider arguments that are raised in a petition for federal habeas corpus. Ray v. Howard, 486 F.Supp. 638 (E.D.Pa.1980).

We find the twenty four month delay in the disposition of Hankins' direct appeal, to which is added the nine month period between his conviction and the filing of a notice of appeal, sufficient to question the adequacy of the state remedy. We do not think it a detriment to petitioner's present claims that he has failed to present his claim denial of due process first to the state courts. We must only consider whether the federal claim has been fairly presented to the state judiciary, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), and where the state process is itself the basis for the claim denial of due process the issue has properly been presented. In Way v. Crouse, 421 F.2d 145, 146-147 (10th Cir. 1970), the court stated:

Just as a delay in the adjudication of a post conviction appeal may work a denial of due process so may a like delay in a determination of a direct appeal. The question presented here is in what court should petitioner seek vindication of his asserted constitutional grievance. In our view Wade properly resorted to the federal court, which should not without knowing the facts and circumstances of the 18 month delay, have required him at this late date to commence a completely new and independent proceeding through the very courts which are responsible, on the face of the pleadings, for the very delay of which he complains.

Accordingly, we conclude that petitioner's claimed denial of due process based upon the delay in the disposition of his direct appeal is now properly before us as are those claims which are the subject of the direct appeal filed in the state court.

II. The Delay in Petitioner Hankins' Direct Appeal.

Whether a delay in any particular case amounts to a denial of due process must necessarily depend upon a consideration of the facts and circumstances of each case. We now turn to Hankins' allegations of inordinate delay in the present case. As we have noted, petitioner claims a specific denial of due process in that the delay in the disposition of his direct appeal has been excessive and intentional.

Obstacles in the state judicial process may work to deny a state prisoner his federal right to due process of law, Morgan v. State of Tennessee, 298 F.Supp. 581, 583 (E.D.Tenn.1969), and this includes any substantial retardation of the state appellate process. Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980); see also, McLallen v. Henderson, 492 F.2d 1298 (8th Cir.1974); Rivera v. Concepcion, 469 F.2d 17 (1st Cir.1972); Tramel v. Idaho, 459 F.2d 57 (10th Cir.1972). While the constitution does not require that the states afford a right to appellate review, Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974); Ortwein v. Schwab, 410 U.S. 656, 660, 93 S.Ct. 1172, 1174-75, 35 L.Ed.2d 572 (1973), where it provides such a right following a criminal conviction, the process must meet the minimum requirements of due process and equal protection. Douglas v. California, 372 U.S. 353, 363, 83 S.Ct. 814, 819-20, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). A delay in the adjudication of a post conviction appeal may work a denial of due process, and so may a like delay in the determination of a direct appeal. See, e.g. Way v. Crouse, 421 F.2d 145 (10th Cir.1970).

Procedural rules governing the appellate process in Pennsylvania do not on their face suggest a lengthy process. We believe, as the following review indicates, that quite the contrary is intended. Exclusive jurisdiction of appeals from final orders of the Court of Common Pleas, with certain enumerated...