Wenger v. Frank

• Decision Date: 13 March 2001
• Docket Number: No. 99-3337,99-3337
• Citation: 2001 WL 1042454,266 F.3d 218
• Parties: (3rd Cir. 2001) ROBERT E. WENGER, JR., APPELLANT v. FREDERICK K. FRANK; ATTORNEY GENERAL OF PENNSYLVANIA Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 218

266 F.3d 218 (3rd Cir. 2001)

ROBERT E. WENGER, JR., APPELLANT v. FREDERICK K. FRANK; ATTORNEY GENERAL OF PENNSYLVANIA

No. 99-3337

U.S. Court of Appeals, Third Circuit

Argued: March 13, 2001

Filed: August 27, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. No. 98-cv-01629) District Court Judge: Malcolm Muir

[Copyrighted Material Omitted] Mary Gibbons, (Argued), Toms River, NJ, Counsel for Appellant.

Michael A. George, (Argued), District Attorney, Officer of District Attorney, Adams County Courthouse, Gettysburg, PA, Counsel for Appellee.

D. Michael Fisher, Attorney General, Robert A. Graci, Assistant Executive Deputy, Attorney General, Office of the Attorney General, Harrisburg, PA, Counsel for Amicus Attorney General, of Pennsylvania.

Before: Alito and Rendell, Circuit Judges, and SCHWARZER,^* Senior District Judge

OPINION OF THE COURT

Alito, Circuit Judge

This is an appeal from a District Court order dismissing a petition for a writ of habeas corpus filed under 28 U.S.C. S 2254. The District Court dismissed the petition under Rose v. Lundy, 455 U.S. 509 (1982), holding that the petition, which advanced three claims, contained two that were unexhausted and was therefore a "mixed petition." On appeal, Wenger contends that the supposedly unexhausted claims would no longer be entertained by the Pennsylvania courts. Wenger argues that these claims, although never fairly presented to the Supreme Court of Pennsylvania, should be regarded as exhausted by virtue of a general order issued by the Pennsylvania Supreme Court in May 2000. See In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000). Wenger also maintains that, even if these claims were procedurally defaulted, the procedural default has been waived. In addition, he contends that his third claim has clearly been exhausted, has not been procedurally defaulted, and consequently should have been entertained on the merits by the District Court. For the reasons explained below, we reverse the decision of the District Court and remand for further proceedings.

I.

In October 1984, Robert Wenger was arrested and charged in the Court of Common Pleas of Adams County with murder of the first degree (18 Pa. Cons. Stat. Ann. S 2502(a)), murder of the third degree (18 Pa. Cons. Stat. Ann. S 2502(c)), voluntary manslaughter (18 Pa. Cons. Stat. Ann. S 2503(a)(1)), and aggravated assault (18 Pa. Cons. Stat. Ann. S 2702(a)(l)). A preliminary hearing was held, and Wenger was held for court. Wenger and the Commonwealth later negotiated a plea agreement under which the Commonwealth did not seek the death penalty and Wenger pled guilty to criminal homicide generally. After Wenger pled, a degree-of-guilt hearing was held in May 1985, and Wenger was found guilty of murder of the first degree. As required by Pennsylvania law, see 18 Pa. Cons. Stat. Ann. S 1102(a); 42 Pa. Cons. Stat. Ann. S 9756(c), Wenger was sentenced in November 1985 to a term of life imprisonment without parole.

Wenger appealed to the Superior Court. The sole issue raised on appeal concerned the sufficiency of the evidence to support the trial court's finding that he was guilty of murder of the first degree. The Superior Court affirmed, and Wenger did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

In February 1988, Wenger filed a petition under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa. Cons. Stat. Ann. SS 9541 et seq., amended and renamed Post-Conviction Relief Act by the Act of April 13, 1988, P.L. 336, No. 47. Wenger raised three claims. He argued (1) that his trial counsel was ineffective for erroneously advising him "that he would be released within ten years if he was sentenced to life imprisonment," (2) that his trial counsel was ineffective for failing to advise him concerning withdrawal of his guilty plea, and (3) that his trial counsel was ineffective in failing to preserve the right to petition for allowance of appeal to the Pennsylvania Supreme Court.

The Court of Common Pleas held a hearing and received testimony from Wenger, his father, mother, and brother, and his trial attorney. See Commonwealth v. Wenger, Nos. CC-472-84 and CC-496-84 (Adams County Ct. Coin. P1. Oct. 22, 1990). Wenger's attorney testified that he did not give incorrect estimates of Wenger's potential sentence, and the court found this testimony to be credible. The court then stated that Wenger had engaged in an extensive colloquy with the court at the time of his plea, and therefore Wenger understood that he would be sentenced to imprisonment for life. The court rejected Wenger's second claim because Wenger knew of his right to withdraw his guilty plea and Wenger did not request that his attorney move to do so. Finally, the court denied relief on Wenger's third claim because Wenger's counsel had taken a direct appeal to the Superior Court, and granting leave to seek direct appellate review by the state supreme court at this late stage would be redundant in light of Wenger's post-conviction proceedings. The court therefore dismissed Wenger's petition, and Wenger took a timely appeal to the Superior Court, raising the same three issues. The Superior Court affirmed the dismissal in April 1991, and Wenger failed to file a timely petition for allowance of appeal with the Pennsylvania Supreme Court. Wenger later filed a petition for leave to file a petition for allowance of appeal nunc pro tunc, but the Pennsylvania Supreme Court denied that request in March 1992.

In January 1997, Wenger filed a petition under Pennsylvania's revised Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. S 9541 et seq. This petition, as ultimately amended, claimed that Wenger's conviction resulted from a guilty plea that had been unlawfully induced, that an unlawful sentence of life imprisonment without parole had been imposed, and that Wenger had been denied the effective assistance of counsel. In a memorandum submitted with this motion, Wenger discussed various theories supporting his claim that his sentence was illegal. Among other things, Wenger raised the following question:

Are legal definitions and common understandings of the terms "life imprisonment" and "life imprisonment without [right to] parole" constitutionally distinguishable such that imposition of the latter as an equivalent substitute for the former invokes protection of the Due Process Clause of the Fourteenth Amendment as well as the Cruel and Unusual Punishment prohibitions of the Eighth Amendment?

App. 59-60. For convenience, we will refer to this argument as the "Due Process/Eighth Amendment" argument.

The Court of Common Pleas dismissed the petition and issued an opinion. The court noted that one of Wenger's contentions in his first petition for post-conviction relief was that "plea counsel erroneously told and led[him] to believe that his exposure was ten years at most." App. 66. The court noted that it had previously rejected this argument and had found "that defendant clearly understood that he would be sentenced to life imprisonment." Id. The court further observed that this decision has been affirmed by the Superior Court. Id. The court then noted that the current petition also alleged "that counsel was ineffective for failing to advise [Wenger] that life meant life without parole," and the court observed that this "assertion is nothing more than a reworked version of a previously litigated claim" and did not justify either a hearing or relief. Id.

The court then added:

Additionally, defendant has sought permission to amend his petition in order to attack the legality of his sentence. Although we are impressed with defendant's brief, we decide the challenge does not entitle him to relief. A sentence of life imprisonment is legal and violates neither equal protection nor the prohibition against cruel and unusual punishment.

Id.

Wenger appealed this decision to the Superior Court and raised two arguments. He contended that "plea counsel's ineffective assistance violated rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution," and he asserted the Due Process/Eighth Amendment argument. App. 70.

The Superior Court affirmed. The court wrote that it "need not reach and discuss the issues posited on this second appeal for ineffectiveness relief " because, as the court below had put it, the current appeal was " `nothing more than a reworked version of a previously litigated claim and does not justify either a relief or hearing.' " App. 71-72. The court stated that it had "already ruled on the merits of whether the guilty plea was entered knowingly and intelligently" and added: "We are constrained to conclude that the only issues that Wenger now seeks to present to this tribunal have been previously litigated." Id. at 72-73.

Wenger filed a petition for allowance of appeal to the Pennsylvania Supreme Court. The only issue raised was the Due Process/Eighth Amendment argument. Leave to appeal was denied in May 1998.

Wenger then filed a petition for a writ of habeas corpus under 28 U.S.C. S 2254 in the United States District Court for the Middle District of Pennsylvania. The petition raised the following three claims:

1. Whether petitioner was denied his right to effective assistance of counsel based on counsel's erroneous advice that even if a life term was imposed, petitioner would only be required to serve a seven to ten year term of imprisonment before parole?

2. Whether petitioner was denied effective assistance of counsel when plea counsel failed to confer with the petitioner regarding withdrawal of the plea and counsel's failure to file such a motion?

3. Whether legal definitions and common understandings of the terms "life imprisonment" and "life imprisonment without parole" are Constitutionally distinguishable...