                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2002

Trowery v. Walters
Precedential or Non-Precedential: Non-Precedential

Docket No. 99-3240




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Recommended Citation
"Trowery v. Walters" (2002). 2002 Decisions. Paper 544.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/544


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                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                            ___________

                            No. 99-3240
                            ___________


                        WILLIAM I. TROWERY,
                                              Appellant

                                v.

                       GILBERT A. WALTERS;
                          MICHAEL FISHER


         _______________________________________________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania
                D.C. Civil Action No. 98-cv-01868
                    (Honorable Donald J. Lee)
                       ___________________


                        Argued July 12, 2002

         Before:   SCIRICA and GREENBERG, Circuit Judges,
                    and FULLAM, District Judge*

                     (Filed: August 28, 2002 )




     *The Honorable John P. Fullam, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.

LISA B. FREELAND, ESQUIRE (ARGUED)
SHELLEY STARK, ESQUIRE
Office of Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222

     Attorneys for Appellant


REBECCA D. SPANGLER, ESQUIRE (ARGUED)
RUSSELL K. BROMAN, ESQUIRE
Office of District Attorney
401 Allegheny County Courthouse
Pittsburgh, Pennsylvania 15219

     Attorneys for Appellees
                          __________________

                       OPINION OF THE COURT
                        __________________

SCIRICA, Circuit Judge.

     The principal issue in this case is whether the petitioner William Trowery is
entitled to a direct appeal of his state criminal conviction. The Commonwealth of
Pennsylvania concedes Trowery should have his direct appeal. We will vacate and
remand.
                               I.
     William Trowery appeals from the dismissal of his writ of habeas corpus. We
granted a certificate of appealability on six issues, including whether Trowery can return
to state court to pursue his claim that trial counsel was ineffective in failing to file a dir
appeal. Because Trowery has not exhausted his state remedies on his ineffectiveness of
counsel claim, we do not address each issue. We have jurisdiction under 28 U.S.C.
1291 and 2253.
     In November 1993, Trowery was charged with criminal homicide, aggravated
assault and a violation of the Uniform Firearms Act, 18 PA. C.S. 6106. On October 5,
1994, Trowery pled guilty to all counts. Trowery did not file a direct appeal, but did file a
post-conviction motion seeking to withdraw his guilty plea. The Court of Common Pleas
of Allegheny County, Pennsylvania denied these motions.
     On December 7, 1994, Trowery filed two pro se petitions under Pennsylvania’s
Post Conviction Relief Act, 42 PA.C.S. 9542 et seq. On October 25, 1996 the trial
court filed a notice of intent to dismiss Trowery’s PCRA petition without a hearing.
Trowery subsequently filed another pro se appeal to the Superior Court of Pennsylvania
challenging the denial of PCRA relief. The Superior Court affirmed the decision of the
PCRA court. On October 8, 1998, the Supreme Court of Pennsylvania denied Trowery’s
pro se Petition for Allowance of Appeal. On November 10, 1998, Trowery filed a 28
U.S.C. 2254 petition in federal court raising several claims, including his original
counsel’s failure to file a direct appeal and a motion to withdraw his guilty plea. Trowery
contended he requested his original counsel to file both claims. The District Court
adopted the Magistrate Judge’s recommendation that the petition be denied on its merits.
This appeal followed.
                              II.
     In order to satisfy the exhaustion requirement of 28 U.S.C. 2254(b)(1)(A), the
federal claim must be "fairly presented to the state courts." Picard v. Connor, 404 U.S.
270, 275 (1971). The Supreme Court has defined "fairly presented" as requiring the
petitioner to present the same claim to the state courts and federal courts. Id. Under
Pennsylvania law, once a petitioner has counsel, the court only reviews the issues
presented in the counseled petitions. Commonwealth v. Pursell, 724 A.2d 293, 301-02
(Pa. 1999).
     Trowery raised his claim of ineffectiveness of counsel for failure to file a direct
appeal in his two pro se PCRA petitions. But the amended petition filed by counsel did
not specifically raise this issue. The claim therefore was never properly presented before
the PCRA court. For this reason, Trowery has not exhausted his state remedies. In
O’Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court held that to "’protect the
integrity’ of the federal exhaustion rule" "we ask not only whether a prisoner has
exhausted his state remedies, but also whether he has properly exhausted those remedies."
     The Commonwealth has stipulated that Trowery’s ineffectiveness of counsel claim
for failure to file a direct appeal is meritorious.   In its Answer to Post-Conviction Relief
Act Petition filed with this Court on July 12, 2002, the Commonwealth maintains that
Trowery is entitled to reinstatement of his direct appellate rights and requests that his
right to file a direct appeal be reinstated nunc pro tunc, with thirty days from the date of
the order to file. See 28 U.S.C. 2254(c).
     Another issue for which we granted the certificate of appealability is whether
Trowery’s claim of ineffectiveness of counsel is procedurally barred if he cannot return to
state court. In its brief the Commonwealth maintains that Trowery’s "claim would not be
procedurally barred as he can establish cause for his default."
     In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held:
     In all cases in which a state prisoner has defaulted his federal claims in state
     court pursuant to an independent and adequate state procedural rule, federal
     habeas review of the claims is barred unless the prisoner can demonstrate
     cause for the default and actual prejudice as a result of the alleged violation
     of federal law, or demonstrate that failure to consider the claims will result
     in a fundamental miscarriage of justice.

Id. at 750. The Pennsylvania procedural rule required Trowery to file notice of appeal
within thirty days. The Commonwealth represents that because trial counsel failed to file
notice of appeal and because Trowery had a right to counsel at that time, such inaction on
the part of trial counsel constitutes cause for purposes of the procedural default doctrine.
                              III.
     For the foregoing reasons, we will vacate the order of the District Court dismissing
the petition on the merits and remand with instructions to dismiss for failure to exhaust
state remedies without prejudice to Trowery’s reopening his habeas corpus action in the
District Court should the state court fail to reinstate his direct appeal.

TO THE CLERK:

          Please file the foregoing opinion.




                              /s/Anthony J. Scirica
                                         Circuit Judge

DATED: August 28, 200
