                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-1996

Doctor v. Walters
Precedential or Non-Precedential:

Docket 95-3484




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Recommended Citation
"Doctor v. Walters" (1996). 1996 Decisions. Paper 79.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/79


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 95-3484
                           ___________

                         GARY LEE DOCTOR,
                            Appellant

                                 v.

                       GILBERT A. WALTERS,
                             Appellee

                           ___________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania
                      (D.C. No. 94-cv-1991)

                           ___________

                      Argued:    June 4, 1996

           Before: SCIRICA, ROTH, Circuit Judges, and
O'NEILL, District Judge

                    (Filed September 24, 1996)

                         SHELLEY STARK, ESQUIRE (ARGUED)
                         KAREN S. GERLACH, ESQUIRE
                         Federal Public Defender
                         415 Convention Tower
                         960 Penn Avenue
                         Pittsburgh, PA 15222

                                Attorney for Appellant


                         ROBERT E. COLVILLE, ESQUIRE
                         District Attorney

                         KEMAL ALEXANDER MERCILI, ESQUIRE
                         Assistant District Attorney

                         RUSSEL BROMAN, ESQUIRE
                         Assistant District Attorney

                         THOMAS N. FARRELL, ESQUIRE (ARGUED)
                         Assistant District Attorney
                         Office of the District Attorney
                         401 Allegheny County Courthouse
                         Pittsburgh, Pennsylvania 15219-2489

                              Attorneys for Appellee
                           ____________

                       OPINION OF THE COURT
                           ____________

O'NEILL, District Judge:
     Petitioner Gary Doctor appeals the dismissal of his petition
for a writ of habeas corpus. The court below dismissed the
petition because: (1) Doctor failed to exhaust his state remedies;
and (2) the Pennsylvania courts refused to consider the merits of
his direct appeals based on an independent and adequate state
procedural rule. We conclude that Doctor did not exhaust his state
remedies and that it would not be futile to require him to raise
his unexhausted claims under Pennsylvania's Post Conviction Relief
Act. 42 Pa.C.S. §§ 9541-46 (Supp. 1996). Accordingly, we will
affirm the district court's dismissal of Doctor's petition.
Because Doctor may resubmit his petition with only exhausted claims
we also address the district court's second basis for dismissing
the petition and hold that the fugitive forfeiture rule as applied
to Doctor was not an independent and adequate state procedural rule
which would bar federal habeas corpus review.
     Doctor was charged with aggravated assault in July, 1985. On
June 24, 1986, during the lunch recess of his criminal bench trial,
and following the presentation of the Commonwealth's case, Doctor
fled. Upon Doctor's failure to return, the trial court issued a
bench warrant and recessed the proceedings. On August 29, 1986,
the trial court entered a guilty verdict against Doctor, apparently
without conducting any further proceedings or attempting to inform
Doctor, his attorney or the Commonwealth about its intention to
enter a verdict.
     Doctor remained at large for over five years until he was
arrested on January 25, 1992 in Butler County, Pennsylvania. On
April 14, 1992, the trial court sentenced Doctor to a term of 49 to
98 months. On June 5, 1992, Doctor filed a pro se "Petition for
Habeas Corpus" in the Pennsylvania Supreme Court, Appendix 279-284,
which was denied on August 21, 1992. While that petition was
pending, he filed a timely direct appeal to the Pennsylvania
Superior Court. On May 13, 1993, the Superior Court, without
reaching the merits of any of his claims, quashed Doctor's appeal
pursuant to Pa.R.App.P. 1972(6). This fugitive forfeiture rule
allows a Pennsylvania appellate court "to quash" an appeal "because
the appellant is a fugitive."   The Superior Court then denied
Doctor's Application for Reargument. The Pennsylvania Supreme
Court denied Doctor's Petition for Allowance of Appeal without
opinion on November 29, 1993. Thereafter the United States Supreme
Court denied Doctor's petition for a writ of certiorari.
     On November 29, 1994, Doctor filed a pro se habeas corpus
petition under 28 U.S.C. § 2254 in the United States District Court
for the Western District of Pennsylvania. The district court,
adopting the report and recommendation of a magistrate judge,
dismissed Doctor's petition without considering its merits. Doctor
filed a timely notice of appeal to this Court. On September 19,
1995, the district court granted Doctor's request for a certificate
of probable cause to appeal and appointed counsel for him.
     The district court had jurisdiction over this matter under 28
U.S.C. § 2254. We have jurisdiction under §§ 1291 and 2253. Our
review of whether petitioner has exhausted his state remedies is
plenary. Ross v. Petsock, 868 F.2d 639, 640 (3d Cir. 1989).

                            EXHAUSTION
     Generally, a § 2254 petition which includes any unexhausted
claims must be dismissed without prejudice for failure to exhaust
all state created remedies. Rose v. Lundy, 455 U.S. 509 (1982).
To satisfy the exhaustion requirement the petitioner must present
every claim raised in the federal petition to each level of the
state courts. Picard v. Connor, 404 U.S. 270 (1971). The
petitioner must afford each level of the state courts a fair
opportunity to address the claim. Anderson v. Harless, 459 U.S. 4
(1982). The petitioner's state court pleadings and briefs must
demonstrate that he has presented the legal theory and supporting
facts asserted in the federal habeas petition in such a manner that
the claims raised in the state courts are "substantially
equivalent" to those asserted in federal court. Bond v. Fulcomer,
864 F.2d 306, 309 (3d. Cir. 1989). The state courts need not
discuss or base their decisions upon the presented claims for those
claims to be considered exhausted. Picard, 404 U.S. at 275.
     The district court, adopting the findings of the magistrate
judge, concluded that "Doctor's 6th Amendment claim was never
presented to any Pennsylvania appellate court." Appendix at 301.
     In his § 2254 petition Doctor asserts the following grounds
for relief:
     No record of trial of Absentia said to have been held on
     Aug. 29th 1986 - I was not convicted in a court of law -
     I was never told on record or otherwise I was found
     guilty - I was never given any appeal rights before or
     after sentencing. No attorney is on record to have
     represented me in the mysterious absentia trial held -
     the trial transcripts in my case stop on page 129 at
     which time case was continued generally, this was on June
     25, 1986. The court docket shows a conviction date of
     8/29/86 - written in on April 14, 1992 - The trial court
     Judge has written an opinion on Oct. 2, 1992 and cited
     cases (Com. v. Jones) 1992 and Com. v. lines, 609 A.2d
     134 pa. Super 1992. These cases do not apply to me - but
     are only stated to keep another court from reviewing the
     record and transcript both which will reveal there was no
     trial of absentia on Aug. 29th, 1986 - my Rights to
     appeal is and has been obstructed by lower Court's false
     opinion and misconduct.
     (Grounds)
     1. Due Process 14th Amendment
     2. Right to Appeal
     3. Post Verdict Rights
     4. 6th Amendment
     5. Insufficient Evidence.
Appendix at 144-45.
     On appeal Doctor states that his § 2254 petition includes a
Sixth Amendment claim alleging a deprivation of his right to
trial. See Appellant's Reply Brief at 3 ("By depriving Doctor of
a trial, of course the Trial Court also deprived Doctor of all
other Sixth Amendment rights, . . . But the critical violation,
from which all other violations arose, was the deprivation of a
trial."). Doctor claims that the trial court entered a guilty
verdict against him without conducting any further proceedings inabsentia
or otherwise. We must decide whether Doctor has satisfied
the exhaustion requirement by affording all levels of the
Pennsylvania courts a fair opportunity to address this claim.
Because we find that he has not adequately presented this claim to
either the Pennsylvania Superior Court or the Pennsylvania Supreme
Court, we conclude that he has not.
     Doctor's brief to the Superior Court on direct appeal did not
include the Sixth Amendment claim he now asserts. In that brief
Doctor raised four issues:

     (1) whether the Defendant became a fugitive before post-trial
     proceedings commenced thereby waiving his rights to proceed on
     appeal; (2) whether mailing notice to Doctor's address is
     sufficient notice to satisfy constitutionally required due
     process whenever an individual may suffer a deprivation of his
     liberty; (3) whether the trial court's failure to advise
     Defendant of his Rule 1123 rights, which results in
     defendant's failure to file Post-Verdict Motions, constitutes
     a waiver by Defendant of appealable issue; and (4) sufficiency
     of the evidence.
See Appendix at 172-73. The due process claim raised in the
Superior Court brief challenges only whether Doctor received
constitutionally required notice of a trial in absentia. The brief
does not raise the issue of whether a trial in absentia ever
occurred. See Appendix at 183-84. Though inadequate notice of a
trial may implicate Sixth Amendment concerns, a claim arising from
that lack of notice is distinct from a claim that no trial inabsentia was
ever held. Following the Superior Court's May 13,
1993 order which quashed his right to appeal, Doctor filed an
Application for Reargument in the Pennsylvania Superior Court.
Appendix at 202-05. In this application Doctor, through counsel,
stated:
     the Trial Court's decision to continue Appellant's trial
     allows that Court to render a verdict in absentia, absent
     proof that Appellant received notice of the new trial date and
     then failed to appear. This Court's decision permits the
     prosecution and determination of guilt of an individual inabsentia
without notice of any proceedings. The same is a
     gross violation of the due process required by both the United
     States and Pennsylvania Constitutions.
Id. at 203-04. Doctor argues that this claim, without explicitly
invoking the Sixth Amendment, incorporates it by reference to 14th
Amendment due process. Even if this were so, mere invocation of a
legal principle is insufficient to apprise the state courts of the
facts and legal theories of the claim he now asserts. We therefore
cannot find that a claim concerning the adequacy of notice of a
trial in absentia is "substantially equivalent" to a claim that no
trial in absentia ever occurred as is necessary to satisfy the
exhaustion requirement. See Bond, 864 F.2d at 309. Thus, the
Superior Court did not have a fair opportunity to address Doctor's
Sixth Amendment claim that the trial court never conducted a trial
in absentia.
     Nor did Doctor state the instant Sixth Amendment claim in his
brief to the Pennsylvania Supreme Court. In that brief Doctor
framed the issues as follows:
     (1) whether the Superior Court's decision to quash Doctor's
     appeal is contrary to the United States Supreme Court's 1993
     decision in Ortega-Rodriguez v. United States; (2) whether the
     Superior Court's decision to quash Doctor's appeal is contrary
     to Commonwealth v. Harrison, 432 A.2d 1083 (Pa. Super. 1981);
     (3) whether the Trial Court's reliance on Pa.R.A.P. 1972(6) is
     in error, and in violation of both the United States and
     Pennsylvania Constitutions; and (4) whether prosecution inabsentia
without notice of proceeding is a gross violation of
     an individual's Constitutional right to due process.
See Appendix at 221. This brief did not assert that a trial inabsentia
was never held.
     Doctor argues, however, that he presented his Sixth Amendment
claim to the Pennsylvania Supreme Court in a separate, pro sepetition
brought pursuant to 43 Pa.C.S. § 721 and filed on June
24, 1992. In that petition, Doctor asserts "Defendant...was
convicted in Pittsburgh, Penna. was denied due-process, under 5th
and 14th Amendment under United States Constitution and Article 1
section 9 of Pa. Constitution." Appendix at 280. He further
asserts "[d]efendant again is denied due process under 5th and 14th
Amendment of U.S. Constitution, and Under Article 1 section 9 of
the Pa. Constitution; by being sentenced without an official
verdict of guilt." Id. at 281. Doctor does not allege in this
petition that a verdict was entered without the trial court ever
conducting a trial in absentia. Though this challenge to the
validity of the verdict does touch upon Doctor's challenge to the
deprivation of his right to a trial, it falls short of raising the
legal theory and facts supporting the Sixth Amendment claim he now
asserts. Thus Doctor has not afforded the Pennsylvania Supreme
Court a fair opportunity to address his claim. See Bond, 864 F.2d
at 309.
     Moreover, Doctor filed his original petition for a writ of
habeas corpus before he filed his appeal to the Superior Court.
The Pennsylvania Supreme Court denied his habeas corpus petition
per curiam and without opinion: (1) while his direct appeal to the
Superior Court was still pending; and (2) over a year before Doctor
filed his Petition for Allowance of Appeal to the Pennsylvania
Supreme Court. Under Pennsylvania law habeas corpus relief is not
available "if a remedy may be had by post-conviction hearing
proceedings authorized by law," 42 Pa.C.S. § 6503(b), and "may be
invoked only when remedies in the ordinary course have been
exhausted or are not available; the writ is not a substitute for
appellate review." Commonwealth v. Wolfe, 605 A.2d 1271, 1273 (Pa.
Super.), appeal denied, 612 A.2d 985 (Pa. 1992) (citations
omitted); see also Commonwealth v. McNeil, 665 A.2d 1247, 1250 (Pa.
Super. 1995) (same).
     Under these circumstances, even if his petition for a writ of
habeas corpus to the Pennsylvania Supreme Court included the Sixth
Amendment claim now asserted, his claims were untimely and the
exhaustion requirement would arguably not be satisfied. SeePitchess v.
Davis, 421 U.S. 482 (1975) (exhaustion requirement is
not satisfied where denial of extraordinary writ cannot be fairly
read as an adjudication on the merits of the claims and appellate
review is available); Ex Parte Hawk, 321 U.S. 114 (1944).
     Doctor's attempts to present to the Pennsylvania appellate
courts his claim that the trial court never conducted a trial inabsentia
does not "represent substantial compliance with the . . .
exhaustion requirement." Bond, 864 F.2d at 309. Therefore, Doctor
must exhaust his state remedies before he can seek federal habeas
relief unless such an attempt would be futile. Toulson v. Beyer,
987 F.2d 984, 987 (3d Cir. 1993).

                             FUTILITY
     Doctor argues that even if he has not effectively exhausted
his Sixth Amendment claim requiring him to return to state court
would be futile because the Pennsylvania courts, having already
determined that he waived his right to a direct appeal, will not
address a petition under the PCRA.
     Though in general a § 2254 petition which includes any
unexhausted claims must be dismissed for failure to exhaust all
state remedies, Lundy, 455 U.S. 509, this requirement does not
apply when the unexhausted claims are procedurally barred. In such
a case, although the unexhausted claims may not have been presented
to the highest state court, exhaustion is not possible because the
state court would refuse on procedural grounds to hear the merits
of the claims. Toulson, 987 F.2d at 987 (citations omitted); Clark
v. Commonwealth, 892 F.2d 1142, 1147 n.6 (3d Cir. 1989). In such
instances compliance is excused because any further attempts to
assert the claims would be futile.
     A petitioner's failure to exhaust state remedies is, however,
excused only when state law "clearly foreclose[s] state court
review of [the] unexhausted claims." Toulson, 987 F.2d at 987. If
the federal court is uncertain how a state court would resolve a
procedural default issue, it should dismiss the petition for
failure to exhaust state remedies even if it is unlikely that the
state court would consider the merits to ensure that, in the
interests of comity and federalism, state courts are given every
opportunity to address claims arising from state proceedings. SeeVasquez
v. Hillery, 474 U.S. 254, 257 (1986); Toulson, 987 F.2d at
987. In the instant case, all avenues of direct appeal are clearly
foreclosed. Therefore, we must determine whether state collateral
review is "clearly foreclosed," as to render further state
proceedings futile.
     Collateral review of a criminal conviction is available in
Pennsylvania under the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-46 (Supp. 1996). To be eligible for relief under the PCRA, a
petitioner must demonstrate that the claim has not been waived. §
9543(a)(3). "[A]n issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction
proceeding." Id. at § 9544(b)(3). As the Pennsylvania courts have
noted, "nearly all claims are waived under the PCRA since nearly
all claims potentially could have been raised on direct appeal.
This applies even if the first-time petitioner never has obtained
appellate review." Commonwealth v. Eaddy, 614 A.2d 1203, 1207-08
(Pa. Super. 1992), appeal denied, 626 A.2d 1155 (Pa. 1993);
accordCommonwealth v. Stark, 658 A.2d 816, 820 (Pa. Super. 1995). Thus
it appears that on collateral review the Pennsylvania courts would
hold that Doctor waived the right to assert his Sixth Amendment
claim on at least one of two separate grounds: (1) because his
submissions to the Superior Court and/or the Pennsylvania Supreme
Court failed to raise that claim; and (2) because under the
fugitive forfeiture rule he waived all rights to have his claims
considered. However, we find that PCRA review is not clearly
foreclosed because Doctor may be able to demonstrate a "miscarriage
of justice" warranting "departure from the PCRA's stringent
eligibility requirements." See Commonwealth v. Fiore, 665 A.2d
1185, 1193 (Pa. Super. 1995) (Hoffman, J., concurring) (citations
omitted), appeal denied, 675 A.2d 1243 (Pa. 1996).
     There are limited exceptions allowing assertion of a claim
that would be considered waived. In Commonwealth v. Lawson, 549
A.2d 107, 112 (Pa. 1988), the Pennsylvania Supreme Court held that
issues never raised on direct appeal or in previous postconviction
petitions are deemed waived, precluding their consideration in
successive postconviction petitions, unless the petitioner can
demonstrate a "miscarriage of justice, which no civilized society
can tolerate." Petitioner must demonstrate: (1) that the
proceedings resulting in his conviction were so unfair that a
miscarriage of justice occurred which no civilized society can
tolerate; or (2) actual innocence. Commonwealth v. Szuchon, 633
A.2d 1098, 1100 (Pa. 1993). A miscarriage of justice "can only
occur where it is demonstrated that a particular omission or
commission was so serious that it undermined the reliability of the
outcome of the proceeding. Where a conviction can be shown to
result from a breakdown in the adversary process, the conviction
rendered is unreliable. Such a conviction is obviously prejudicial
to the defendant and, if allowed to stand, is a miscarriage of
justice." Lawson, 549 A.2d at 112 (Papadakos, J., concurring).
          Doctor alleges facts that could support a finding that
"the proceedings resulting in his conviction were so unfair that a
miscarriage of justice occurred which no civilized society can
tolerate." Szuchon, 633 A.2d at 1100. Doctor's allegations and
citations to evidence in the record indicate that a judge entered
a verdict against him without convening any proceedings in open
court and without any semblance of resuming adversary proceedings.
These contentions could be construed as giving rise to a claim of
a serious breakdown in the adversary process. Such allegations, if
true, raise concerns much more serious than defects in a trial that
do not entirely negate the existence or appearance of a public
trial as required by the Sixth Amendment. Cf. Lawson, 549 A.2d at
110 (allegation that trial did not timely commence does not
demonstrate a miscarriage of justice); Commonwealth v. Williams,
660 A.2d 614, 618 (allegation that petitioner was not informed of
the elements of the crimes to which he pled nolo contendere, that
his speedy trial rights were violated, and that the sentence
imposed exceeded the guidelines and abused discretion did not
indicate a miscarriage of justice).
     The exhaustion requirement reflects concerns of comity and
federalism which require this Court to give state courts first
opportunity to "consider allegations of legal error without
interference from the federal judiciary." Hillery, 474 U.S. at
257. Although exhaustion may be excused where return to the state
courts would be futile, we must be certain that state review is
clearly foreclosed lest we deprive state courts of an "opportunity
to correct their own errors, if any." Toulson, 987 F.2d at 989
(citation omitted). It is therefore not for this Court to decide
whether the Pennsylvania courts will conclude that the defects in
the proceedings surrounding Doctor's conviction rise to the level
of a miscarriage of justice as defined by Pennsylvania law. We
cannot conclude that there is no chance that the Pennsylvania
courts would find a miscarriage of justice sufficient to override
the waiver requirements and permit review under the PCRA.
Accordingly, we conclude that a return to state court would not be
futile.
                        PROCEDURAL DEFAULT
     Though the foregoing analysis mandates dismissal of Doctor's
petition and thus affirmance of the court below, Doctor may
resubmit a petition asserting only his exhausted claims. Lundy, 455
U.S. at 520. Should this occur the district court will again be
faced with the question of whether Doctor is entitled to federal
habeas review of his procedurally defaulted claims. Therefore, in
the interests of judicial economy we will address the district
court's holding that the fugitive forfeiture rule bars federal
habeas review of Doctor's claims. A petitioner is entitled to
federal review of procedurally defaulted claims only if he can
demonstrate that (1) the procedural rule was not "independent" and
"adequate" or (2) cause for his failure to comply with state
procedural rules and prejudice resulting th
