                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-1995

Walker v Vaughn
Precedential or Non-Precedential:

Docket 94-1367




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 94-1367



                          RONALD WALKER,
                                           Appellant
                                v.

                        DONALD T. VAUGHN;
       THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
            DISTRICT ATTORNEY OF PHILADELPHIA COUNTY



         On Appeal from the United States District Court
            For the Eastern District of Pennsylvania
                      D.C. No. 92-cv-01616




                      Argued January 24, 1995

           Before:    SLOVITER, Chief Judge, HUTCHINSON
                     and LEWIS, Circuit Judges

                  (Opinion Filed     May 3, l995 )


Michael J. Kelly (Argued)
Defender Association of Philadelphia
Federal Court Division
Philadelphia, PA 19106-2414

          Attorney for Appellant

Donna G. Zucker (Argued)
Office of District Attorney
Philadelphia, PA 19102

          Attorney for Appellees
                         OPINION OF THE COURT


SLOVITER, Chief Judge.



          Appellant Ronald Walker appeals the district court's

denial of his petition for a writ of habeas corpus filed pursuant

to 28 U.S.C. § 2254.     Walker's petition alleges ineffective

assistance of counsel in the state trial and direct appeal,

primarily for their failure to press a claim on his behalf under

Batson v. Kentucky, 476 U.S. 79 (1986) (barring racially
discriminatory use of peremptory challenges by prosecutors).

Although we will affirm the ruling of the district court, the

procedural history of this case presents an important issue about

the procedure to be followed by a federal court reviewing a

habeas corpus petition when a dormant state proceeding is

reactivated.   The relevant procedural facts are necessarily set

forth in detail.

                                  I.

                   Facts and Procedural History

          In November 1985, appellant Ronald Walker, armed with a

double-barrelled shotgun and a handgun, entered the home of his

estranged wife in Philadelphia.     Walker proceeded to hold his

wife's mother, sister and daughter hostage in the home for a

period of approximately twenty-four hours.      After a long standoff

with police, Walker released the hostages and surrendered.       He

was then charged with crimes arising out of the incident.
            On October 9, 1986, after a jury trial in the

Philadelphia Court of Common Pleas, Walker was convicted of three

counts of kidnapping, one count of attempted kidnapping,

burglary, simple assault and possession of an instrument of

crime.   The judgment and sentence in the case was entered on May

20, 1987.    On April 13, 1989, Walker's conviction was affirmed on

direct appeal in an unpublished opinion by the Pennsylvania

Superior Court.   See Commonwealth v. Walker, 561 A.2d 823 (Pa.

Super. Ct. 1989).

            Walker did not file a petition for allocatur to the

Pennsylvania Supreme Court.    Instead, on February 28, 1990 he

filed a pro se petition under the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541 et seq.

(hereinafter "PCRA action"), alleging that both his trial counsel

and his appellate counsel had been ineffective.

            Walker's court-appointed counsel in the PCRA action,

however, failed to prosecute the PCRA petition promptly,

resulting in a delay of more than two years.1   Thus, on March 19,

1992, Walker filed this petition for habeas corpus in the United

States District Court for the Eastern District of Pennsylvania

and listed as respondents Donald T. Vaughn by name (the

Superintendent of the State Correctional Institute at


1
 . Based on the record provided to this court, it appears that
between February 1990 and May 1992, the state PCRA court listed
the action approximately eleven times in an effort to move the
matter towards resolution, but Walker's court-appointed counsel
failed to appear on several occasions and arranged continuances
of other hearings.
Graterford), the District Attorney of Philadelphia, and the

Attorney General of Pennsylvania (hereinafter referred to jointly

as the "State").   In his petition, Walker alleged that the delay

in the resolution of his PCRA action rendered that action

ineffective to protect his rights, and that therefore his failure

to exhaust his state post-conviction remedy should be excused.

           On April 20, 1992, the state court presiding over the

PCRA action scheduled a hearing for July 2, 1992 and issued an

order to compel Walker's counsel to attend.    The State, in

responding on May 14, 1992 to Walker's federal petition, notified

the district court of this latest development in the PCRA action

and argued that Walker's obligation to exhaust his state remedies

should not be excused.    On June 5, 1992, the federal magistrate

judge issued a Report and Recommendation that, due to the

pendency of the PCRA action, Walker's habeas petition should be

denied and dismissed without prejudice for failure to exhaust his

state court remedies.    The district court, however, took no

immediate action regarding this Report and Recommendation, and

Walker's federal habeas petition remained pending.

           Walker's court-appointed PCRA counsel did not appear at

the state PCRA hearing on July 2, 1992.    The state court

therefore took a number of steps, including threatening the

imposition of sanctions, in order to force Walker's counsel to

appear.   While those efforts were largely unsuccessful, Walker's

PCRA counsel did file an amended PCRA petition on September 30,

1992.   That amended petition, however, was not accompanied by the

supplemental memorandum required by Pennsylvania law.   After
several additional missed appearances, the state court ordered

Walker's PCRA counsel to attend a hearing on December 15, 1992,

and warned counsel that he risked being held in contempt if he

did not appear on that date.

           While the state court was still attempting to compel

Walker's state counsel to appear in the PCRA proceedings, the

district court ordered the parties in the federal habeas

proceeding to appear for a hearing on December 15, 1992 regarding

the status of Walker's state PCRA action.     The state court then

changed its hearing to December 14, 1992, and at that hearing

heard testimony on the merits of Walker's PCRA claim.

           The following day, December 15, 1992, the district

court held its hearing on the magistrate judge's report

recommending dismissal of the federal action because Walker had

failed to exhaust his state remedies.     Walker testified that his

PCRA counsel had represented him at the PCRA hearing the previous

day, and that his original trial counsel had testified as a

witness.   The district court made no decision at that time.    See

Transcript of Proceedings, December 15, 1992, at 32.

           On December 22, 1992, the state court removed Walker's

court-appointed PCRA counsel, apparently because of his prior

lack of diligence, and thereafter appointed a replacement.     This

marked renewed movement in the PCRA action.

           On January 8, 1993, the district court held another

hearing, at which Walker's former PCRA counsel testified, and

advised the court he had been replaced.    See Transcript of
Proceedings, January 8, 1993, at 6-8.   The district court
acknowledged that "things are beginning to move" in the state

proceeding, id. at 16, but expressed doubt about whether the

state proceeding would be resolved expeditiously.      Id. at 9.

After receiving a supplemental brief addressing the exhaustion

question,2 the district court issued an order on January 15, 1993

that disapproved the Report and Recommendation of the magistrate

judge and ruled, instead, that the delay in the state PCRA

proceeding was sufficient to waive Walker's exhaustion

requirement under 28 U.S.C. § 2254(b).     The district court then

directed Walker to file an amended habeas petition.

             On February 1, 1993, with the assistance of his

federally-appointed habeas counsel, Walker filed an amended

habeas petition raising thirty-one issues.      After the State filed

a response to the amended petition, the district court ordered

Walker to file an offer of proof and brief citation to authority

in support of each of the thirty-one claims which Walker intended

to pursue.    See Order of February 26, 1993.    Before Walker

responded to the district court's order, his appointed habeas

counsel filed a motion to withdraw in the federal action.        The

district court therefore continued Walker's obligation to file



2
 . The State's supplemental brief, which was filed on January
11, 1993, conceded there had been some prior delays, but argued
that Walker's PCRA action was now proceeding rapidly through the
state court system, with additional evidentiary hearings set for
February 1993. See Supplementary Response on Issue of
Exhaustion, January 11, 1993, at 5. The State proposed that the
federal court dismiss Walker's habeas action without prejudice to
renew it if the state proceedings were not fully resolved within
a reasonable time frame. Id. at 6-7.
the offer of proof and citation to authority pending the

resolution of the motion to withdraw.

           While Walker's federal action was stalled for this

reason, Walker's state PCRA action was proceeding.    Walker's

newly-appointed PCRA counsel was permitted to file a new amended

petition, and between December 1992 and April 1993 the state

court heard testimony regarding Walker's claims for post-

conviction relief.   Because there was no transcript of the voir

dire that had been conducted for Walker's trial, the state court

permitted Walker to present testimony regarding the merits of the

alleged ineffective assistance/Batson violations.    See App. at

101.

           Walker testified that during voir dire, allegedly on

October 6, 1986, the assistant district attorney who tried the

case against him "had a problem with black males," App. at 102;

that the jury ultimately selected was composed of "mainly

females," App. at 107; that he was "very unhappy" about the

selection process and complained about the process to his trial

counsel "several times," App. at 107-08; and that his trial

counsel told him to "shut up" and declined to object to the

prosecutor's actions.   App. at 108.   The State objected to this

testimony, in part because Walker had made no offer of proof

regarding the number of people on the jury, the number of black

jurors, and the number of black individuals who were stricken

from the jury.   Walker's counsel responded that he expected

testimony or an affidavit on this issue by Walker's trial

counsel.   However, when Walker's trial counsel did testify on
April 21, 1993, he was not questioned on any Batson-related

issues.

          On June 29, 1993, the state court issued an order

denying Walker's PCRA claim.   The court rejected Walker's

ineffective assistance/Batson claim, concluding that Walker

"failed to sustain his burden of proof on this issue."

Commonwealth v. Walker, Nos. 8601-2553-2575, Memorandum Opinion

at 10 (Philadelphia Court of Common Pleas, filed June 29, 1993).

          On July 8, 1993, Walker filed an amended federal habeas

petition containing approximately thirty-three claims.   One of

the claims asserted by Walker was "that the makeup of the jury

was prejudicial against petitioner."   At a hearing before the

district court on July 23, 1993, the State argued that Walker's

petition did not state a claim for relief, relying upon the

testimony and record produced in the PCRA proceeding.    Among

other things, the State argued that Walker failed to create a

record in the PCRA action that would be sufficient to support his

ineffective assistance/Batson claim, and asked the federal court

to "stay its hand" because the PCRA action, which had concededly

been delayed for some time, could "no longer legitimately be

called ineffective to protect [Walker's] rights."   See App. at
61.

          While the issue was pending in the district court, the

Pennsylvania Superior Court rejected Walker's appeal and, on

February 2, 1994, affirmed the denial of relief under the PCRA.

The Superior Court held that Walker's failure to provide the

notes of testimony or a statement pursuant to Pa. R. App. P. 1923
in lieu of a transcript precluded appellate review of the claim.

See Commonwealth v. Walker, No. 02523 Philadelphia 1993,

Memorandum Opinion at 6 (Pa. Super. Ct., filed February 2, 1994).

Walker then filed a petition for allocatur to the Pennsylvania

Supreme Court.3

            On February 16, 1994, while Walker's petition in the

Pennsylvania Supreme Court was still pending, the federal

district court issued its order denying Walker's federal habeas

petition.   With respect to Walker's ineffective assistance/Batson

claim, the court stated that "[t]here is no record of how many

blacks were in the venire, how many were struck by the

prosecution and the defense, how many blacks sat on the jury, or

how many peremptory challenges the prosecutor used.     Petitioner's

insufficient showing precludes review by this court."    Memorandum

& Order of February 16, 1994 at 15-16.    The district court

therefore found that Walker had failed to make a sufficient

record in the PCRA proceeding to support the claim.

            The district court also commented in another portion of

its opinion that:
          [P]etitioner did not avail himself of the Pennsylvania
          Rules of Appellate Procedure that provide an
          opportunity to reconstruct the record for purposes of
          appeal. Pa. R. App. Pro. 1923, 1924. Petitioner also
          failed to supplement the record during the PCRA
          proceedings, although he had ample opportunity to do
          so. Because petitioner does not demonstrate cause for
          failing to develop the record in state proceedings, he
          cannot do so for the first time by federal habeas

3
 . The Pennsylvania Supreme Court denied Walker's petition for
allocatur on November 30, 1994, after Walker's appeal before this
court had been filed and fully briefed.
          action.   See Keeney v. Tamayo-Reyes, 112 S.Ct. 1715
          (1992).


Memorandum & Order of February 16, 1994 at 13.   While this

portion of the district court's opinion did not specifically

address Walker's ineffective assistance/Batson claim, it appears
to have supported the court's conclusion regarding that claim.

          The district court granted Walker's motion for a

certificate of probable cause, and this appeal followed.    In the

appeal, Walker challenges only the district court's dismissal of

his claim for habeas relief on the grounds of ineffective

assistance of counsel due to trial counsel's failure to object to

the prosecutor's practice of racial discrimination in jury

selection.

          We have jurisdiction over Walker's appeal pursuant to

28 U.S.C. § 1291.   See Story v. Kindt, 26 F.3d 402, 405 (3d

Cir.), cert. denied, 115 S. Ct. 593 (1994).   Where a district

court has denied a state prisoner's habeas corpus petition

without a hearing on the merits, our review is plenary.    See
Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989).
                               II.

                            Discussion

          On appeal, Walker concedes that the record before the

district court was insufficient to support either a substantive

Batson claim or a claim for ineffective assistance based on

defense counsel's failure to raise a Batson claim.     He argues,

however, that it was unfair for the district court to dismiss his

action in light of the State's failure to produce any record of

the jury selection despite the district court's prior order

requiring it to do so.   Walker contends that the district court

should have held an evidentiary hearing on the whereabouts of the

record of jury selection, and, if necessary, should have given

him an opportunity to reconstruct that record.4

          In response, the State contends that the district

court's decision followed the Supreme Court's recent decision in

Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), holding that,

absent a showing of cause and prejudice, a federal court may not

provide a habeas petitioner with an evidentiary hearing where the

petitioner had an adequate opportunity to develop the relevant

facts in state court proceedings.    Id. at 1721.   Thus, the State

reasons, Walker's failure to develop the facts relevant to his

ineffective assistance/Batson claim during the PCRA proceeding



4
 . Walker cites no relevant authority to support this position.
He refers only to Douglas v. California, 372 U.S. 353 (1963), in
which the Supreme Court held that a state's failure to provide an
indigent criminal defendant with defense counsel in his direct
appeal was unconstitutional.
precludes the district court from granting him the opportunity to

do so in this habeas proceeding.

           Were this the paradigmatic federal habeas proceeding,

where the petitioner has fully exhausted state remedies prior to

filing a federal habeas petition, the State's argument would be

indisputable.   Walker's failure to establish a factual record

during the PCRA proceeding would be subject to the Tamayo-Reyes

cause and prejudice standard, and his inability to demonstrate

cause for his failure to develop the factual record during the

PCRA action would therefore support the district court's decision

to reach the merits of his claims without holding an evidentiary

hearing.

           This case does not fit neatly within the Tamayo-Reyes

rule because the Court there addressed a habeas petitioner's

failure to develop a factual record in a post-conviction state

proceeding that was exhausted prior to the filing of the federal

habeas petition.   Id. at 1716-17.   In contrast, here the district

court concluded that Walker had not demonstrated cause for his

failure to develop an adequate state court record to establish

his claim by relying, somewhat paradoxically, upon the

opportunity presented to Walker at a state proceeding that the

district court had excused Walker from exhausting.5   We thus must

consider, apparently as a matter of first impression, the proper

application of the Tamayo-Reyes rule in these circumstances.
5
 . The district court's waiver of the exhaustion requirement in
this case has not been challenged by the State on appeal. Thus,
despite our questions about the district court's ruling on that
issue, we do not reach it here.
          To do so, we return to basic principles.       In general, a

habeas petition may not be granted "unless it appears that the

applicant has exhausted the remedies available in the courts of

the State."     28 U.S.C. § 2254(b).   The exhaustion rule is not

jurisdictional.     See Story, 26 F.3d at 405.    Rather, the rule is

"rooted in considerations of federal-state comity."       Preiser v.

Rodriguez, 411 U.S. 475, 491 (1973).       The rule "is principally

designed to protect the state courts' role in the enforcement of

federal law and prevent disruption of state judicial

proceedings."     Rose v. Lundy, 455 U.S. 509, 518 (1982).6   The

exhaustion rule also serves the secondary purpose of facilitating

the creation of a complete factual record to aid the federal

courts in their review.      Id. at 519.

             Similarly, Tamayo-Reyes explained that the cause and

prejudice rule regarding evidentiary hearings "appropriately

accommodate[s] concerns of finality, comity, judicial economy,

and channeling the resolution of claims into the most appropriate

forum."   Tamayo-Reyes, 112 S. Ct. at 1719.      The Court also

commented that its rule was "fully consistent with and gives

meaning to the requirement of exhaustion" by ensuring that

factual issues are addressed by the state courts "in the first

instance."    Id. at 1720.    The exhaustion rule and the Tamayo-

6
 . In Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), the
Supreme Court noted that "[c]omity concerns dictate that the
requirement of exhaustion is not satisfied by the mere statement
of a federal claim in state court. Just as the State must afford
the petitioner a full and fair hearing on his federal claim, so
must the petitioner afford the State a full and fair opportunity
to address and resolve the claim on the merits." Id. at 1720.
Reyes rule are therefore animated in part by the same concerns:

comity to the state courts and ensuring that an adequate factual

record is developed in the state courts.

          On the other hand, the habeas corpus statute provides

that exhaustion of state remedies may be excused where there is

"an absence of available State corrective process or the

existence of circumstances rendering such process ineffective to

protect the rights of the prisoner."   28 U.S.C. § 2254(b).   The

principal instance for excusal of exhaustion is inordinate delay

rendering the state remedy "effectively unavailable."   See

Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986); see also

Story, 26 F.3d at 405-06 (listing cases).   In such circumstances,

the comity and record-creation concerns of the exhaustion rule

yield to the federal courts' obligation to serve as a forum for

the protection of the petitioner's fundamental federal rights.

See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987).

It is unclear whether, once the district court determines

exhaustion can be excused because of undue delay, the concerns as

to comity and record-creation remain sufficiently relevant to

require application of the Tamayo-Reyes rule, the issue presented
by this appeal.

          Because most habeas petitions filed during the pendency

of state proceedings are dismissed for lack of exhaustion, no

principles have been developed to guide the district court in a

habeas proceeding as to reliance on a state evidentiary

proceeding that occurred after the exhaustion requirement has

been excused.   Cf. Wojtczak, 800 F.2d at 356 n.3 (noting that
after federal court found inexcusable delay in Pennsylvania state

court post-conviction proceeding and permitted habeas petition to

proceed, the state court stayed the post-conviction proceeding

pending the disposition of the federal case).   The issue would

not have arisen in this case had the district court accepted the

State's suggestion that it stay all federal proceedings pending

the resolution of the state court action once it became apparent

that the state PCRA action had been reactivated.   As a matter of

general practice, we assume that a district court which has

excused exhaustion but has not yet embarked upon proceedings of

substance will stay its hand once there is reliable evidence that

the state action has been reactivated.   Cf. Picard v. Connor, 404

U.S. 270, 275 (1971) (noting that states generally must be given

the opportunity to pass upon and correct alleged violations of

their prisoners' federal rights); see also Burkett, 826 F.2d at

1218 (affirming a district court's dismissal for lack of

exhaustion where the petitioner's state case was "proceeding

normally," but excusing exhaustion where there was no indication

that state court would soon dispose of petitioner's case).

          An examination of the Tamayo-Reyes opinion suggests the
appropriate manner to resolve the issue presented in this case.

Clearly, the Court wanted to limit a defendant's opportunities

"to relitigate a conviction."   Tamayo-Reyes, 112 S. Ct. at 1719.

More significantly, the Court noted that the cause and prejudice

rule regarding evidentiary proceedings "serves the interest of

judicial economy" by preventing defendants from using the scarce

judicial resources of the federal courts to "duplicate
factfinding" that could have been performed in state court.    Id.

This focus on judicial economy is consistent with other Supreme

Court pronouncements regarding the use of the limited resources

of the federal judiciary in habeas cases.   See Schlup v. Delo,

115 S. Ct. 851, 864 (1995) (suggesting that review of petitions

for habeas corpus requires consideration of the "systemic

interests in finality, comity, and conservation of judicial

resources"); McCleskey v. Zant, 499 U.S. 467, 491 (1991) (noting

that federal collateral litigation places a heavy burden on

scarce judicial resources, and threatens the capacity of the

system to resolve primary disputes).7

          Thus, a decision to apply the Tamayo-Reyes rule should

be guided not only by comity and record-creation concerns but

also by an interest in encouraging judicial economy and avoiding

duplicative procedures in the state and federal court systems.

See United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d

Cir. 1973) (record of a then-pending state proceeding should be

considered by the district court on remand if the state

proceeding was final at the time the district court rendered its

decision).

          We need not decide in this case what effect should be

given to state court findings following a state evidentiary

7
 . See also Schneckloth v. Bustamonte, 412 U.S. 218, 260-61
(1973) (Powell, J., concurring) ("To the extent the federal
courts are required to re-examine claims on collateral attack,
they deprive primary litigants of their prompt availability and
mature reflection. After all, the resources of our system are
finite: their overextension jeopardizes the care and quality
essential to fair adjudication.")
hearing in which the petitioner did not participate because the

federal court excused exhaustion.   Walker did participate fully

in the state PCRA hearings that occurred after the filing of his

habeas petition.   At those hearings, Walker was represented by

counsel who called various witnesses, including Walker himself,

to testify in Walker's behalf.   Indeed, a review of the

transcript of the PCRA proceeding suggests that Walker was given

every opportunity to create a record sufficient to establish any

constitutional claims.   Having availed himself of that

opportunity by appearing and presenting evidence, it would be

inconsistent with the interests of judicial economy expressed in

Tamayo-Reyes and other Supreme Court decisions regarding federal

habeas proceedings to give Walker a second evidentiary hearing in

federal court.

          We do not hold that a habeas petitioner must

participate in a state proceeding that the district court has

held need not be exhausted, an issue we leave for another day.

We merely hold that application of the Tamayo-Reyes rule is

appropriate in this case, where the state prisoner has appeared

at the state hearing and has had an adequate opportunity to

develop a record to establish his claim.

          We recognize that the district court rendered its

decision relying upon the opportunity provided by the state PCRA

action while a petition for allocatur in that action was still

pending in the Pennsylvania Supreme Court.8   Arguably, relying on

8
 . The district court may have so acted because of concern about
further delay. The Pennsylvania Supreme Court has recently taken
a state action that is not yet final poses some risk.

Regardless, at oral argument before this court, the parties

agreed that Walker's petition for allocatur was denied by the

Pennsylvania Supreme Court on November 30, 1994, while this

appeal was pending.   Thus, the district court's reliance upon a

then-pending state proceeding in reaching its decision cannot now

provide a basis for the reversal of its decision.

          We therefore conclude that the district court's

dismissal of Walker's ineffective assistance/Batson claim was

proper.   The state court record is insufficient to establish the

claim, and, having fully participated in the PCRA action, Walker

is unable to demonstrate cause for his failure to reconstruct

that record in state court, nor is there any suggestion that a

miscarriage of justice would result from a failure to hold an

evidentiary hearing on the issue in the district court.   Tamayo-

Reyes, 112 S.Ct. at 1721.




(..continued)
steps to reduce the delays in reviewing petitions for allocatur
by appointing a committee to address the problem and adopting new
internal operating procedures. See Supreme Court Internal
Operating Procedures, Pennsylvania Law Weekly, Nov. 7, 1994, at
12; see also Ralph J. Cappy et al., Allocatur Review Must Be
Perceived As Objective, Pennsylvania Law Weekly, Nov. 21, 1994,
at 6 (first part of Final Report and Recommendation of the
Allocatur Study Committee of the State Supreme Court); Ralph J.
Cappy et al., High Court Needs Central Staff, Funding,
Pennsylvania Law Weekly, Nov. 28, 1994, at 6 (second part of
Final Report and Recommendations of the Allocatur Study Committee
of the State Supreme Court).
                              III.

          For the foregoing reasons, we will affirm the district

court's order of February 16, 1994, denying Walker's petition for

a writ of habeas corpus.
__________________________________
