United States ex rel. Johnson v. Cavell
Citation | 468 F.2d 304 |
Decision Date | 03 October 1972 |
Docket Number | No. 19299.,19299. |
Parties | UNITED STATES of America ex rel. William J. JOHNSON, E4204, Appellant, v. Angelo C. CAVELL. |
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
John H. Lewis, Jr., Philadelphia, Pa., for appellant; Morgan, Lewis & Bockius, Philadelphia, Pa., of counsel.
James D. Crawford, Asst. Dist. Atty., Philadelphia, Pa., for appellee.
Before HASTIE, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
Before SEITZ, Chief Judge, and KALODNER, HASTIE, VAN DUSEN, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN and HUNTER, Circuit Judges.
Reargued En Banc June 21, 1972.
Submitted May 6, 1971.
Before HASTIE, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
Reargued En Banc June 21, 1972.
Before SEITZ, Chief Judge, and KALODNER, HASTIE, VAN DUSEN, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN and HUNTER, Circuit Judges.
This is an appeal from the denial of a petition for habeas corpus by a prisoner of the Commonwealth of Pennsylvania. In 1954 the appellant Johnson pleaded guilty to an indictment charging him with murder. Under Pennsylvania law following such a plea a degree of guilt hearing is held. Pa.Stat.Ann. tit. 18, § 4701 (1963); Johnson is confined under a judgment of the degree of guilt hearing court finding him guilty of first degree murder. He could have challenged on appeal the sufficiency of the evidence supporting this degree of guilt determination. He did not appeal. The federal habeas corpus petition alleges that he was not advised of his right to appeal. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
Once in prison Johnson filed with the Court of Oyer and Terminer of Wyoming County a series of petitions for habeas corpus and for other relief.1 Germane to this case is the decision in a Pennsylvania Post Conviction Hearing Act proceeding that Johnson was foreclosed by waiver from litigating his Douglas v. California claim, and that in any event the failure to advise him of his appeal rights was not prejudicial.
In 1967 after having filed nine previous habeas corpus petitions Johnson filed a petition for post conviction relief which alleged a number of constitutional infirmities in the judgment under which he was confined. His Douglas claim was not alleged. He was represented by counsel in the 1967 proceeding, and an appeal was taken. Thereafter, pro se, he filed a habeas corpus petition in the Wyoming County Court alleging the Douglas claim for the first time. This petition was dismissed without a hearing on the ground that the pendency of the appeal deprived the County Court of jurisdiction. At Johnson's request counsel was appointed and an appeal taken from the dismissal. This appeal was consolidated with the earlier post conviction appeal pending in the Supreme Court of Pennsylvania. All of Johnson's contentions in this counselled consolidated appeal were rejected except the Douglas claim. On that claim it reversed the County Court decision that it lacked jurisdiction, and remanded for a hearing. Justice Roberts wrote:
To put the quoted extract from Justice Roberts' opinion in context it is necessary to refer to Section 4 of the Pennsylvania Post Conviction Hearing Act, Pa.Stat.Ann. tit. 19, § 1181 et seq. (1954), which provides:
Although the "presumption" subsection contains no such language it has been construed as applicable only if the defendant was represented by counsel at the time the default occurred. Commonwealth v. Linde, 432 Pa. 324, 248 A.2d 235, 236 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A. 2d 440, 442 (1968); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968).
The effect of the remand by the Supreme Court of Pennsylvania, then, was to direct that a hearing be held on the issue of waiver of the Douglas claim by failing to raise it in Johnson's first counselled Post Conviction Hearing Act petition in 1967. Upon the remand the County Court, as best we can tell from the available records, took no testimony, but heard argument in which Johnson's counsel made this offer of proof:
Apparently this offer of proof was accepted by the County Court in lieu of testimony, for immediately thereafter the Court ruled:
This somewhat ambiguous pronouncement probably decides (1) that the Douglas violation was harmless since there were no grounds on which Johnson could have appealed, and alternatively (2) that by failing to assert the Douglas claim in his first counselled Post Conviction Hearing Act petition Johnson had waived it.
No appeal was taken from this decision. Johnson did, however, file the federal habeas corpus petition now before us. The district court assumed that the Douglas claim might be meritorious. It denied relief on the ground that the questions which could have been asserted on direct appeal had been litigated in collateral proceedings and that, therefore, appellant had not been prejudiced by the loss of a direct appeal. The Commonwealth concedes that this equation of state post conviction proceedings with state direct appeal was error.2 When the case was before a panel of this court the Commonwealth took the position that despite the erroneous basis of decision the order of the district court should be affirmed because as the County Court has held, Johnson waived his Douglas claim.
The panel decision recognized that the County Court waiver determination as a proposed bar to federal habeas corpus was inconsistent with federal waiver standards. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). It...
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Kravitz v. Commonwealth of Pennsylvania, s. 76-1390
...than once directed it. E. g., United States ex rel. Fisher v. Driber, 546 F.2d 18 (3d Cir. 1976); United States ex rel. Johnson v. Cavell, 468 F.2d 304, 308-9 (3d Cir. 1972) (in banc). If such an express order had been entered and the state court had decided the claim adversely to petitione......
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