United States ex rel. Montgomery v. Brierley, 17105.

• Decision Date: 06 August 1969
• Docket Number: No. 17105.,17105.
• Citation: 414 F.2d 552
• Parties: UNITED STATES of America ex rel. Donald Howard MONTGOMERY, Appellant, v. Joseph R. BRIERLEY, Superintendent, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

414 F.2d 552 (1969)

UNITED STATES of America ex rel. Donald Howard MONTGOMERY, Appellant, v. Joseph R. BRIERLEY, Superintendent, Appellee.

No. 17105.

United States Court of Appeals Third Circuit.

Argued February 20, 1969.

Decided August 6, 1969.

As Corrected September 4, 1969.

John Rogers Carroll, Philadelphia, Pa., for appellant.

John H. Brydon, Dist. Atty., David L. Cook, Robert J. Hawk, Asst. Dist. Attys., Butler, Pa., for appellee.

Before VAN DUSEN, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

STAHL, Circuit Judge.

The three issues in this habeas corpus appeal are:

(1) whether appellant has exhausted his state court remedies with respect to his claims of unlawful arrest, failure to have counsel at a preliminary hearing, and ineffective counsel;

(2) whether the state courts properly disposed of his double jeopardy claim; and

(3) whether a confession and related statements were properly admitted in his state court trial for murder and other offenses.

The district court dismissed appellant's application for a writ of habeas corpus, without an evidentiary hearing, on the ground that he had failed to exhaust his state remedies on some of his claims and that the other claims had been properly rejected by the state courts.¹ To put the issues in proper perspective, it is necessary to relate in some detail what transpired in the state courts.

Appellant Montgomery was brought to trial before a jury in May 1962, in Butler County, Pennsylvania, on consolidated indictments charging murder, arson, burglary and armed robbery. The District Attorney, in his summation to the jury, referred to appellant as a "pro" and as an "old pro." The court granted appellant's motion for a mistrial on the ground that his right to a fair trial had been prejudiced.

Over his protest² that retrial for first degree murder constituted double jeopardy, appellant was tried again in June 1962, and found guilty of murder in the first degree as well as of the other offenses for which he was indicted.³ The murder conviction resulted in a sentence of life imprisonment which appellant is now serving; lesser concurrent sentences were imposed on the other indictments. No direct appeal was taken.

Early in 1965, appellant submitted to the Butler County court a pro se⁴ petition for habeas corpus in which he claimed first, that the confession and other inculpatory statements introduced at his trial were erroneously admitted, and secondly, that the retrial for first degree murder constituted double jeopardy. This petition was dismissed without a hearing on February 18, 1965, in an opinion by Judge Shumaker,⁵ the court reiterating its rejection of the double jeopardy argument and finding no constitutional infirmity in the admission of the statements, especially in light of the fact that Montgomery had taken the stand at his trial and testified to his participation in some of the offenses with which he was charged. In disposing of the present application, the court below did not have before it the Butler County court opinion dismissing this habeas corpus petition.

According to appellant, following the denial of his first state court habeas corpus petition by the Butler County court, he filed a second petition in which he alleges he raised the additional constitutional claims as to which the court below found he had not exhausted his state remedies. The second petition was also denied, again without an evidentiary hearing, in an opinion by Judge Shumaker dated July 15, 1965.⁶

On appeal to the Supreme Court of Pennsylvania, the denial of habeas corpus was upheld. Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859, cert. denied, 385 U.S. 963, 87 S.Ct. 405, 17 L.Ed.2d 308 (1966). The opinion, by Justice Roberts, dealt with two issues, viz., double jeopardy and the admissibility of the confession.

Exhaustion of State Remedies

Our independent examination of the record before the State Supreme Court discloses the following:

(1) Appellant's pro se brief before that Court contained only one "Statement of Question Involved," this being the double jeopardy issue, and the substantive argument in the brief was limited to this point.⁷

(2) Attached to appellant's brief before the Pennsylvania Supreme Court were both of the petitions for habeas corpus which appellant claims to have filed with the Butler County court and both of the opinions by Judge Shumaker denying these petitions.

Appellant's counsel has furnished to this court the two state petitions and the two state lower court opinions.

From our examination of the record in the district court, it appears that the court did not have before it either of the opinions of Judge Shumaker referred to above but that both of the petitions filed in the Butler County court were attached to the habeas corpus application filed below.

From the foregoing, we believe it is necessary to remand this appeal to the district court to determine from a fair appraisal of both of the state habeas corpus petitions filed by appellant, and the opinions which dismissed them, whether he had in fact raised all of the constitutional claims he now makes prior to seeking relief in the federal courts. As we said in United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3d Cir.1969), the district courts have the power, and the duty, to secure and examine all available state records before disposing of a habeas corpus petition.⁸ See also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770 (1963); Conner v. Wingo, 409 F.2d 21 (6th Cir.1969); Jackson v. Nelson, 404 F.2d 1138 (9th Cir.1968); Wright and Sofaer, Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility, 75 Yale L.J. 895, 923 (1966).

In determining whether appellant's state court petitions adequately raised the claims he now makes in the federal courts for exhaustion purposes, we should recognize that a habeas corpus petition prepared by a prisoner without the aid of counsel may be inartfully drawn and should therefore be read "with a measure of tolerance." Wade v. Yeager, 377 F.2d 841, 846 (3d Cir.1967), cert. denied, 393 U.S. 893, 89 S.Ct. 218, 21 L.Ed.2d 173 (1968). It is the policy of the courts to give a liberal construction to pro se habeas petitions. Robinson v. Wainright, 387 F.2d 438, 441 (5th Cir.1967). If an examination of the state records proves inconclusive, it may be appropriate for the district court to conduct an evidentiary hearing on the question of whether appellant has exhausted his state remedies. See Brown v. Wainwright, 394 F.2d 153, 154 n. 1 (5th Cir.1968).⁹

If the district court should find that appellant's state habeas corpus petitions did raise all of the claims he now makes below, it will be necessary to determine the effect of the failure of the State Supreme Court to deal with any of these claims except the double jeopardy and confession issues. As the courts have repeatedly said, the exhaustion requirement is based upon the principle of comity rather than on any jurisdictional limitation. United States ex rel. Gockley v. Myers, 411 F.2d 216 (3d Cir.1969); Bell v. Alabama, 367 F.2d 243, 248 (5th Cir.1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967). Due regard for this principle requires that the state courts, including the highest appellate court of a state, be afforded the initial opportunity to pass upon alleged claims of unconstitutional restraint: Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States ex rel. Poulson v. Rundle, 276 F.Supp. 506, 507 (E.D.Pa. 1967).

We believe that on either of two grounds the exhaustion requirement will have been satisfied here, insofar as the action of the State Supreme Court is concerned, if it is found that appellant had asserted in his state court petitions all of the constitutional claims which he now makes:

(1) As noted above, appellant's two state court petitions and the Butler County court opinions dismissing them were part of the record in the State Supreme Court. Therefore, so long as the claims have actually been presented to the highest court of the state, it generally does not matter whether that court expressly deals with the merits of the claims. Petition of Thompson, 301 F.2d 659 (3d Cir.1962);¹⁰ Ellis v. New Jersey, 282 F.Supp. 298 (D.C.N.J.1967), aff'd per curiam, 388 F.2d 988 (3d Cir.), cert. denied, 392 U.S. 938, 88 S.Ct. 2312, 20 L.Ed.2d 1397 (1968);¹¹ Bauers v. Yeager, 261 F.Supp. 420 (D.C.N.J. 1966).

(2) It may be argued that by limiting his State Supreme Court brief to the sole issue of double jeopardy, appellant abandoned the other claims raised in his state habeas corpus petitions and therefore they were not properly before the appellate court. If that be so, then under the Pennsylvania Post Conviction Hearing Act of January 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. § 1180-4, appellant would seem to be precluded from raising these issues again in the state courts.

Section 4(a) of the state law provides:

(a) For the purpose of this act, an issue is finally litigated if:

(1) it has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court\'s ruling; * * * (Emphasis added.)

Thus, even if appellant is found not to have exhausted his full state remedies in the past, under the State Post Conviction Hearing Act he would at the present time be precluded from raising the issues in question in the state courts. In this posture, as the United States Supreme Court squarely held in Fay v. Noia, supra, resort may be had to the federal courts for relief by way of habeas corpus.¹²

Double Jeopardy

The claim of double jeopardy was clearly raised in the first habeas corpus petition and was rejected by the Butler County court and by the State Supreme Court in an exhaustive opinion, by Justice Roberts, which contained a comprehensive analysis of the law on...