Whittlesey v. Circuit Court for Baltimore County, Md.

• Decision Date: 17 April 1990
• Docket Number: No. 88-7697,88-7697
• Citation: 897 F.2d 143
• Parties: James Louis WHITTLESEY, a/k/a Frank Wayne Pehringer, Petitioner-Appellant, v. CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND; Stephen H. Sachs, Attorney General for the State of Maryland; Richard L. Dugger, Secretary of the Florida Department of Corrections; Robert A. Butterworth, Attorney General of the State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 143

897 F.2d 143

James Louis WHITTLESEY, a/k/a Frank Wayne Pehringer Petitioner-Appellant, v. CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND; Stephen H Sachs, Attorney General for the State of Maryland; Richard L. Dugger, Secretary of the Florida Department of Corrections; Robert A. Butterworth, Attorney General of the State of Florida, Respondents-Appellees.

No. 88-7697.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1989.

Decided Feb. 28, 1990.

Rehearing and Rehearing In Banc Denied April 17, 1990.

Stanley K. Joynes, III (argued), Rilee, Cantor, Arkema & Edmonds, Richmond, Va., for petitioner-appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (argued), Baltimore, Md. (J. Joseph Curran, Jr., Atty. Gen. of Md., Diane E. Keller, Asst. Atty. Gen., Baltimore, Md., on brief), for respondents-appellees.

Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

In this case we must decide whether a federal habeas corpus petitioner has fulfilled the statutory requirement of exhaustion of state court remedies, 28 U.S.C. Sec. 2254(b), despite having deprived the state court system of the opportunity to pass upon his habeas claims by escaping from prison, fleeing to another state, committing crimes in that other state, and being imprisoned there for those crimes. The district court held that petitioner failed to exhaust his state court remedies since his own conduct had denied the state courts "a full and fair opportunity to first consider the claims."

We affirm.

I.

James Louis Whittlesey was convicted on August 29, 1978, in the Circuit Court for Baltimore County, Maryland, of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a crime of violence. He received a ten-year sentence for the robbery offense and a five-year consecutive sentence for the handgun offense.

In late July 1980, Whittlesey escaped from the Brockbridge Correctional Institute in Maryland. He had not filed a direct appeal from his convictions, nor had he petitioned for state post-conviction relief in the years prior to his escape.

While a fugitive, Whittlesey committed other crimes in Florida. In October 1982, he was convicted for armed robbery and narcotics trafficking violations. He is currently serving a 136-year sentence in the Florida State Prison in Starke, Florida.

In June 1986, Whittlesey filed his first petition for post-conviction relief in Maryland state court. He alleged that his Maryland convictions were unconstitutional because he was mentally incompetent to stand trial, he did not knowingly and voluntarily waive his right to a jury trial, he was not given an opportunity for allocution at his sentencing proceeding, and he was denied effective assistance of counsel. The state court dismissed Whittlesey's petition without prejudice because his presence could not be secured for a post-conviction hearing. Whittlesey then filed a second petition for state post-conviction relief which was likewise dismissed because his presence could not be secured. An application for leave to appeal was denied by the Court of Special Appeals of Maryland. In addition, Whittlesey sought unsuccessfully to invoke the Interstate Agreement on Detainers as a means of transfer to Maryland for a hearing.

On October 19, 1987, Whittlesey filed a federal petition for habeas corpus, raising the same issues he had raised in his state petitions. The federal district court dismissed the petition without prejudice on the ground that Whittlesey had not exhausted his state post-conviction remedies.

Whittlesey appeals.

II.

The federal habeas corpus statute commands that a federal court refrain from entertaining a habeas petition from a state prisoner "unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. Sec. 2254(b). The exhaustion requirement is one of comity. It gives " 'the State the initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights.' " Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408-09, 30 L.Ed.2d 418 (1971)). Thus, state courts must be provided a full and fair opportunity to review earlier state court proceedings before a federal habeas writ will issue.

Whittlesey concedes that his presence at a Maryland state court post-conviction hearing was necessary if the state court was to have an opportunity to pass on his claims. He also concedes that he was unable to effectuate his presence at the hearing. Nonetheless, Whittlesey argues that he has complied with Sec. 2254(b)'s exhaustion requirement. He contends that by its own terms Sec. 2254(b) requires only that an applicant for habeas relief have exhausted the state court remedies available to him, and that since he is unable to return for the hearing there are no remedies available.

Whittlesey also asserts that his petition falls within the futility exception of Sec. 2254(b), which provides that a habeas writ may be granted despite a failure to exhaust state court remedies if "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." He emphasizes that since he is serving a 136-year sentence in Florida, it would be futile for him to wait until he has been released from prison in Florida to pursue his Maryland post-conviction remedy. He also stresses that he is nonetheless prejudiced by the continued validity of the Maryland sentence in that his Florida sentence might be shortened if the Maryland sentence were no longer in effect.

Whittlesey's arguments are without merit. He fails to appreciate that the difficulties he is encountering in obtaining habeas relief are difficulties he has brought on himself by escaping from prison in Maryland and committing crimes in Florida. As a general matter, it is well-settled that a criminal defendant may not flout compliance with state procedures and look to federal courts to save him from the consequences of his actions. See Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984); Wainwright v. Sykes, 433 U.S. 72, 89-90, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977). Here, Whittlesey cannot expect federal courts to rescue him from the consequences of his escape and subsequent commission of crimes.

Whittlesey maintains that there are no state remedies available to him; however, this simply is not the case. The doors of the Maryland state courts stand open for him to present his complaints; that he is unable to enter through those doors until completion of his Florida sentence is the price he must pay for having escaped from the Maryland prison and committed offenses in Florida. It is his own criminal misconduct which has denied Maryland courts the opportunity to hold a hearing, develop a record, and thereby address his claims on the merits. We will not command the district court to review his habeas petition when his own unlawful acts have prevented the state courts from reviewing his claims. ¹ Analogous is the practice of federal courts of declining to review pending appeals challenging the convictions of escaped criminal defendants. See Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975); see also Feigley v. Fulcomer, 833 F.2d 29, 31 (3d Cir.1987) (holding federal habeas corpus review unavailable where state courts have determined that petitioner's escape waived the right to post-conviction relief). Had Whittlesey sought to appeal his case and then escaped, he clearly would not be entitled to appellate review. Nor would he be entitled to habeas relief in this case had he escaped from Maryland prison and remained an escapee. The fact that Whittlesey committed crimes in Florida while on escape and was incarcerated for those crimes should not place him in a preferred position to seek the writ.

Nor can Whittlesey avoid the exhaustion requirement by seeking refuge in the futility exception in the habeas corpus statute. Federal habeas corpus has traditionally been governed by equitable principles, among them the principle that "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). Whittlesey had an opportunity to seek direct review of his conviction on appeal but failed to do so. He also could have sought habeas relief at any time during the almost two years prior to his escape, but he did not. That it may now be "futile" for Whittlesey to await completion of his Florida sentence to challenge his Maryland conviction begs the question of how that futility has come about. The equitable principles governing habeas relief will not permit Whittlesey to create a situation in which seeking state post-conviction relief is futile, and then invoke that same futility to avoid the exhaustion requirement.

III.

The question is whether petitioner's simple willingness to present his claims to state courts satisfies the exhaustion requirement, as the dissent contends, or whether petitioner has impaired what was a fair opportunity for presentation of his claims through his own unlawful conduct. We hold the latter view, and we affirm the judgment of the district court.

AFFIRMED.

PHILLIPS, Circuit Judge, dissenting:

A prisoner who escapes from incarceration in state A only to be incarcerated for conviction of another crime in state B while still a fugitive from state A makes an instinctively unattractive petitioner for federal habeas relief from the original incarceration. But aside from the ever-present possibility that notwithstanding the unattractiveness of his self-imposed predicament his habeas challenge could have merit, much more than individual interests are at stake here.

I

This is one of those hard cases that...