Veal v. Myers, CIVIL ACTION NO. 98-3993 (E.D. Pa. 12/29/2000), CIVIL ACTION NO. 98-3993.
| Decision Date | 29 December 2000 |
| Docket Number | CIVIL ACTION NO. 98-3993. |
| Parties | TRAVIS VEAL, v. ROBERT MYERS, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Robert E. Welsh, Jr., Lisa A. Mathewson, Welsh & Recker, Philadelphia, PA, for plaintiff.
Donna G. Zuber, Philadelphia, PA, for defendant.
EXPLANATION AND ORDER
Before me is Petitioner Travis Veal's ("Veal") pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The procedural history material to this explanation is that on April 21, 1989, Veal was convicted by a jury in the Court of Common Pleas in Philadelphia of second degree murder, robbery, conspiracy and possessing an instrument of crime. See Report and Recommendation ("R & R") at 2. The charges were filed as a result of a robbery of Dave's Grocery Store, during which Veal and an accomplice, Leonard Ravenell, robbed the store and shot the owner in the head. Veal was sentenced to life imprisonment. See id. at 2-3. Veal did not file a direct appeal to the Superior Court. See id. at 3. On December 18, 1990, Veal filed a pro se petition for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq.1 See id. On August 10, 1995, pursuant to Veal's PCRA petition, the Honorable Joseph I. Papalini reinstated Veal's appellate rights nunc pro tunc. See id. at 4. Thereafter, Veal appealed to the Pennsylvania Superior Court. On November 27, 1996, the Superior Court affirmed the judgment of sentence. See id. Veal failed to petition for allocatur following the Superior Court ruling.
On or about January 20, 1997, however, Veal filed a motion for leave to file a petition for allowance of appeal nunc pro tunc of the Superior Court ruling to the Pennsylvania Supreme Court.2
On August 15, 1997, the Honorable Carolyn E. Temin of the Court of Common Pleas of Philadelphia County granted Veal's request to proceed with a nunc pro tunc petition for allowance of appeal to the Pennsylvania Supreme Court.3 On February 23, 1998, Veal's request for allocatur was denied by the Pennsylvania Supreme Court without comment. On July 31, 1998, Veal filed this habeas corpus petition. On October 23, 1998, Magistrate Judge Rapoport issued a Report and Recommendation that the petition for writ of habeas corpus be denied. On December 22, 1999, I granted Veal's request for appointment of counsel.4
Magistrate Judge Rapoport recommended denying Veal's petition because Veal R & R at 5. Therefore, Magistrate Judge Rapoport concluded that Veal's procedural default bars federal habeas review. See id. at 7.5
Based upon Judge Tenim's order, petitioner Veal contends that he did not procedurally default on his claims. In his Amended Objections to the Report and Recommendation, he argues that he followed proper state procedure at the time, when he petitioned the Court of Common Pleas for nunc pro tunc relief. The Commonwealth asserts that Judge Temin's Order was unlawful, and therefore, Veal failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. Veal counters that Judge Temin's Order was valid and, regardless of the validity of Judge Temin's Order, a federal court should refrain from evaluating an issue that no Pennsylvania court has addressed. On October 30, 2000, I heard oral argument on this issue.
Chief Judge Becker, in a recent Third Circuit opinion in Hull v. Kyler, 190 F.3d 88 (1999), sets forth the controlling law on whether or not Veal procedurally defaulted his claims.6 The petitioner in Hull followed a procedure that is the same for all relevant purposes as the procedure followed by Veal. Hull was convicted in state court. He challenged his conviction on direct appeal, which was ultimately denied by the Pennsylvania Supreme Court. Hull filed an initial action for state post-conviction relief under the PCRA. He appealed the denial of his PCRA action to the Superior Court and the Superior court affirmed the denial. Hull's counsel failed to file a timely petition for allocatur in the Pennsylvania Supreme Court challenging the Superior Court's denial of post-conviction relief. Thereafter, Hull filed an initial action for federal habeas relief. This action was ultimately dismissed without prejudice by the district court, pursuant to an order of remand from the Third Circuit (Hull II).7
In Hull II, the Third Circuit recognized Hull's failure to file a timely petition for allocatur to the Pennsylvania Supreme Court as a procedural default. The Third Circuit ordered the district court to dismiss to afford Hull an opportunity to obtain a waiver of his procedural default, by petitioning for allowance of appeal nunc pro tunc on the grounds of ineffective assistance of postconviction counsel for failure to file a timely petition for allocatur. By dismissing without prejudice, the Third Circuit deferred to the state courts to determine whether this ineffective assistance claim is valid under state law such the state should waive Hull's procedural default.
At this point, Hull sought leave to file a petition for allocatur nunc pro tunc from the Court of Common Pleas. The Court of Common Pleas granted his request.8 Pursuant to the order issued by the Court of Common Pleas, Hull then filed a petition for allocatur nunc pro tunc. His petition was denied by the Pennsylvania Supreme Court without comment. Hull then filed a second petition for federal habeas relief. The district court denied his habeas petition on the merits. Reversing the district court's denial of Hull's second petition for habeas relief, in Hull v. Kyler, 190 F.3d 88 (1999), in its final determination in this matter, the Third Circuit reached the question of whether the order issued by the Court of Common Pleas, granting nunc pro tunc relief to file a petition for allocatur, constituted a waiver of procedural default necessary to reach the merits of Hull's federal habeas action.
The Third Circuit found that the grant of relief by the Court of Common Pleas did constitute waiver by the state of his procedural default that arose when he failed to timely appeal the Superior Court's denial of post-conviction relief. See 190 F.3d at 98. The court further stated that "the state supreme court's unexplained denial of Hull's most recent nunc pro tunc petition [shall be read as] a determination on the merits" of his PCRA claim by the Pennsylvania Supreme Court. Id. at 99 (citations omitted). "If the Commonwealth wished to avoid the state court's waiver of the procedural default, it was incumbent upon it to appeal the Court of Common Pleas' order." Id. at 98. In Hull, the Commonwealth did initially appeal this order to the Superior Court, but later the Superior Court dismissed the appeal when the Commonwealth failed to file its brief. Thus, by failing to follow through on an appeal of the order, the Commonwealth gave up its only opportunity to contest the state waiver of Hull's procedural default. "The Commonwealth may not now, [in the federal habeas action], allege error in the trial court's . . . ruling." Id. at 101 n. 4.
The Third Circuit acknowledged in Hull that when it had ordered the district court in Hull II to dismiss Hull's first habeas petition to allow him to obtain a waiver of his procedural default, the court envisioned that Hull would file a petition for leave to file a petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court. Such a procedure would have given the Pennsylvania Supreme Court an opportunity to rule directly on the right to obtain such relief based on counsel's failure to timely appeal. The court did not envision a scenario in which "Hull's waiver claim would never get past the state trial court." Id. at 99.9
However, "Hull only needed a waiver from the Pennsylvania Courts, not necessarily for the state's highest court." Id. (citations omitted).
When the Pennsylvania Supreme Court denied Hull's petition for allocatur without comment, it left the trial court's order, and thus the state waiver, standing. If Hull had filed a petition for allocatur nunc pro tunc without the order from the Court of Common Pleas, the state supreme court's denial without comment would have been properly read as a denial based on procedural default. See id. at 95 (). With the Court of Common Pleas order on the record, however, the Third Circuit reasoned that the Supreme Court could have reversed the order "by either dismissing (rather than denying) Hull's second petition, or by clearly stating that Hull's petition remained untimely and that his procedural default remained effective." Id.10
The Third Circuit concluded:
"We are of course bound by Hull II but, at all events, agree that on these facts when the Pennsylvania courts granted Hull the right to file a petition for allowance of appeal nunc pro tunc, the subsequent denial of that petition was on the merits."
The difference between the procedure in this case from that in Hull, is that Hull's appellate rights were reinstated by the Court of Common Pleas in a PCRA action, while Judge Tenim's order reinstated Veal's appellate rights outside of the PCRA framework. In fact, Veal had already had his appellate rights reinstated once by the PCRA court, allowing him to file for direct appeal to the Superior Court. Veal's petition to the Court of Common Pleas was not framed as a PCRA petition. The Commonwealth argues that if Veal wished to have his appellate rights reinstated based on ineffective assistance of co...
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