Whitney v. Horn

Decision Date07 June 2000
Docket NumberNo. 99-1993.,99-1993.
Citation170 F.Supp.2d 492
PartiesRaymond WHITNEY v. Martin HORN, Commissioner of Pennsylvania Department of Corrections, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Robert Brett Dunham, Philadelphia, PA, Christina Swarns, Philadelphia, PA, Billy H. Nolas, Philadelphia, PA, for petitioner.

Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, Donna G. Zucker, Philadelphia, PA, Marilyn F. Murray, District Attorney of Philadelphia, Philadelphia, PA, for respondents.


BARTLE, District Judge.

This is a death penalty case. Petitioner Raymond Whitney ("Whitney") seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. He contends that he is entitled to a new trial and/or a new sentencing hearing because of numerous violations of his constitutional rights.

The gruesome events out of which this case arises are described in great detail by the Pennsylvania Supreme Court in its opinion in Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152, 1154-55 (1986). Suffice it to say that in the early morning hours October 10, 1981, Whitney broke into the West Philadelphia apartment of Jehad Taha and his wife and stabbed Mr. Taha to death during a robbery. The decedent was stabbed 28 times. Whitney also tried to rape Jehad Taha's wife. On May 4, 1982, he was convicted of first degree murder and sentenced to death by a jury in the Court of Common Pleas of Philadelphia County.1 The Pennsylvania Supreme Court sustained his conviction and sentence on July 15, 1986. See id. at 1162.

On November 13, 1990, Whitney filed in the Court of Common Pleas of Philadelphia County a pro se petition seeking post-conviction relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. §§ 9501, et seq. After the PCRA court stayed his execution and appointed counsel, he filed amended petitions on March 8, 1991, September 23, 1991, December 17, 1991, and June 4, 1992. The PCRA court held an evidentiary hearing in February, 1993, and on January 3, 1995, the court denied post-conviction relief. Over three years later, on February 26, 1998, the Pennsylvania Supreme Court again affirmed. See Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471 (1998). In April, 1999, Governor Ridge signed a warrant for his execution to take place on June 3, 1999.

On April 22, 1999, we granted Whitney a stay of execution and appointed counsel to represent him in the case at bar. He thereupon filed his petition for a writ of habeas corpus in this court under 28 U.S.C. § 2254. After respondents argued that this court must dismiss the petition because it contained both exhausted and unexhausted claims, Whitney filed an amended petition that omitted the one claim he could still pursue in state court and set forth seventeen other claims and sub-claims of alleged violations of the United States Constitution during both the guilt and penalty phases of his trial.

It is undisputed that Whitney has no remaining avenue in the courts of Pennsylvania for litigating any of the claims he has alleged in his amended petition for a writ of habeas corpus. In addition, it is conceded that Whitney did not pursue, either on direct appeal or in his PCRA proceeding, a number of the claims alleged in his pending petition. He and respondents sharply disagree about whether he is now precluded from raising those claims here.


The federal habeas corpus statute permits this court to entertain a petition for a writ of habeas corpus by a state prisoner only on the ground that he or she is in custody in violation of the United States Constitution or federal law. See 28 U.S.C. § 2254(a). The statute, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, further provides:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1). Section 2254(c) states, "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." Whitney contends that he has no available state court remedies and thus may proceed with his claims for relief here.

The Supreme Court first announced the exhaustion doctrine, now codified at § 2254(b)(1), in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). It is a doctrine of comity designed to reduce friction between the federal and state courts by giving the latter the first opportunity to grant relief because of any violation of federal law. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct 2546, 115 L.Ed.2d 640 (1991). As Justice Stevens has explained, "This time-honored rule [of exhaustion] has developed over several decades of cases, always with the goal of respecting the States' interest in passing first on their prisoners' constitutional claims in order to act as the primary guarantor of those prisoners' federal rights ...." O'Sullivan, 526 U.S. at 851, 119 S.Ct. 1728 (dissenting).2

The exhaustion doctrine requires us to ask whether the prisoner had any state remedy available to him at the time he filed his federal habeas petition. See id. It "refers only to remedies still available at the time of the federal petition," not to those that were available to a prisoner at some time prior to the filing of his federal petition. Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also id. at 853, 119 S.Ct. 1728 (Stevens, J., dissenting). If a prisoner does have an available state remedy, then "in the interest of comity, [we] must generally abstain from intervening," and he will be required to return to the state courts. O'Sullivan, 526 U.S. at 851, 119 S.Ct. 1728 (Stevens, J., dissenting). On the other hand, if he has no available state remedy when his federal petition is filed, we must determine whether he has "properly exhausted" his state remedies. Id. at 848, 119 S.Ct. 1728.

Proper exhaustion occurs when a petitioner "has fairly presented his claims to the state courts," id., and given them "a sufficient opportunity to decide those claims," id. at 853, 119 S.Ct. 1728 (Stevens, J., dissenting). If a prisoner had an opportunity fairly to present his claims to the state courts but has failed to do so, and now a state procedural rule acts as a bar, we may not consider those claims because he has not properly exhausted his state remedies. He has waived or procedurally defaulted such claims. See Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000); id. at 854, 119 S.Ct. 1728 (Stevens, J., dissenting).

Procedural default prevents our review of a prisoner's federal claims if they were defaulted under a state procedural rule that is an "independent and adequate state ground" for the state courts' refusal to address the merits.3 Coleman, 501 U.S. at 729, 111 S.Ct. 2546. The state courts' reason for not addressing petitioner's federal claims is "independent" if it is separate and apart from the federal issues. See id. at 732, 111 S.Ct. 2546; Cabrera v. Barbo, 175 F.3d 307, 312 (3d Cir.), cert. denied, 528 U.S. 886, 120 S.Ct. 205, 145 L.Ed.2d 173 (1999). It is undisputed that 42 Pa. Cons.Stat. Ann. § 9545(b)(1), which contains time limitations for filing PCRA petitions, now prevents Whitney from obtaining any relief in the state courts and is independent of any federal issues.


It is the adequacy of the time bar that is pivotal in this case. Whitney maintains that the time restriction found in 42 Pa. Cons.Stat. Ann. § 9545(b)(1), as applied to him, is not an adequate state ground to deny him relief. If he is correct, we may proceed to reach the merits of his claims because "there is an absence of available State corrective process," and procedural default is excused. 28 U.S.C. § 2254(b)(1)(B)(i); see also Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir.2000).

To be adequate, a state procedural rule must "speak in unmistakable terms." Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir.), cert. denied, 528 U.S. 886, 120 S.Ct. 205, 145 L.Ed.2d 173 (1999); see also Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir.1996). Furthermore, "the procedural disposition must comport with similar decisions in other cases so there is a firmly established rule that is applied in a consistent and regular manner in the vast majority of the cases." Cabrera, 175 F.3d at 313. "[T]hese conditions must have existed at the time of the state court procedural default." Id. Fairness is the issue. As our Court of Appeals has explained, "The reason for these requirements is that a petitioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar him from advancing them in a federal court." Id.

In Pennsylvania, PCRA review is the "sole means" for collaterally challenging one's conviction and sentence. Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718, 721 (1997). As we noted above, Whitney filed his first and only petition for PCRA relief on November 13, 1990. The PCRA at that time, before the 1996 amendments, provided:

(a) General rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:


(3) That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has...

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2 cases
  • Pursell v. Horn
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • 1 d5 Fevereiro d5 2002
    ...law from filing a second petition in which he could raise these new claims until his first petition was resolved. Whitney v. Horn, 170 F.Supp.2d 492, 499 (E.D.Pa.2000); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000). Had the trial court permitted Pursell to amend his first peti......
  • Com. v. Whitney
    • United States
    • Pennsylvania Supreme Court
    • 5 d3 Março d3 2003
    ...the trial court sentenced Appellant to be imprisoned for 497.5 months to 995 months on the remaining convictions. 10. Whitney v. Horn, 170 F.Supp.2d 492 (E.D.Pa.2000). 11. Whitney v. Horn, 280 F.3d 240 (3rd Cir. 12. Appellant filed his third PCRA petition more than twelve years after this C......

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