                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2004

Lee v. Stickman
Precedential or Non-Precedential: Precedential

Docket No. 02-3497




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Recommended Citation
"Lee v. Stickman" (2004). 2004 Decisions. Paper 959.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/959


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PRECEDENTIAL                               Stephen J. Binhak, Esquire (Argued)
   UNITED STATES COURT OF                  3103 Philmont Avenue
           APPEALS                         Huntingdon Valley, PA 19006
    FOR THE THIRD CIRCUIT
        ______________                            Counsel for Appellant

             No: 02-3497
           ______________                  Ronald M. Wabby, Jr., Esquire (Argued)
                                           401 Allegheny County Courthouse
           KENNETH LEE,                    Pittsburgh, PA 15219

                    Appellant                     Counsel for Appellees


                     v.
                                                          OPINION
       WILLIAM STICKMAN;
      STEPHEN ZAPPALA, JR.;
         MICHAEL FISHER                    CUDAHY, Circuit Judge

                                                    This is an appeal by Kenneth Lee
                                           from an order of the United States
 Appeal from the United States District    District Court for the Western District of
                   Court                   Pennsylvania dismissing his petition for a
for the Western District of Pennsylvania   writ of habeas corpus on the ground that
  (D.C. Civil Action No. 02-cv-01013)      he had failed to exhaust available state
   District Judge: Honorable Robert J.     court remedies. Lee contends that we
                 Cindrich                  must excuse the exhaustion requirement
       ______________________              because of the eight-year delay in his
                                           post-conviction collateral proceedings in
     Argued on December 18, 2003           the Pennsylvania state courts. W e agree.
                                           We therefore reverse the order of the
     Before: ROTH, MCKEE and               district court and remand the case for
     CUDAHY* , Circuit Judges              consideration of Lee’s habeas petition on
                                           the merits.
   (Opinion filed: February 11, 2004)
__________________                                              I.
                                                  If William Shakespeare were to
       *The Honorable Richard D.           summarize Lee’s experience with the
Cudahy, Circuit Judge for the United       Pennsylvania state courts, he might
States Court of Appeals for the Seventh    describe it as “a tale told by an idiot, full
Circuit, sitting by designation.           of sound and fury, signifying nothing.”
William Shakespeare, Macbeth, act 5, sc.     to provide notice within thirty days, the
5., lines 26-28. The epic begins on April    petition would be dismissed.
30, 1992, when a jury convicted Lee of
possession of cocaine, possession with               For reasons unknown to this
intent to deliver cocaine and resisting      Court, Lee did not respond to this order.
arrest. On June 25, 1992, Lee was            In January 1996, Lee was still awaiting a
sentenced by the Court of Common Pleas       decision on his PCRA petition, so he
of Allegheny County to 1.5 - 5 years         filed a Motion for Relief / Disposition
imprisonment followed by five years of       Without Hearing. In this application,
probation. After an unsuccessful direct      Lee reiterated the jury bias claim, but did
appeal, Lee filed a pro se petition under    not reassert the other claims he had made
the Pennsylvania Post Conviction Relief      in the PCRA petition. On February 25,
Act (“PCRA”) on February 13, 1995. 42        1996, the court dismissed Lee’s Motion
Pa. Cons. Stat. Ann. § 9541 et seq. In his   for Relief / Disposition Without Hearing,
PCRA petition, Lee raised five               explaining that Lee had waived the right
arguments: (1) the trial judge abused his    to challenge the juror by not raising the
discretion in denying a motion to            issue earlier. On August 16, 1996,
suppress; (2) the trial judge wrongfully     eighteen months after Lee submitted the
denied a motion to arrest judgment; (3)      PCRA petition, the court dismissed that
one of the jurors was biased because of      petition for the sole reason that Lee had
his employment with the Allegheny            failed to indicate whether he would
County Court of Common Pleas; (4) the        proceed pro se. On August 25, 1996,
evidence did not support a conviction;       Lee appealed this dismissal.
and (5) the trial judge wrongfully cross-
examined Lee in front of the jury. Most              On March 17, 1998, eighteen
of these arguments have never been           months after this appeal, the Superior
considered on the merits by any court.       Court of Pennsylvania vacated the
                                             August 16, 1996 Order of the lower court
       On February 28, 1995, a PCRA          because the Court of Common Pleas had
counsel was appointed for Lee. On May        failed to provide notice of intent to
11, 1995, after hearing nothing from the     dismiss the PCRA petition, notice of the
court, Lee filed a Petition For Writ of      reasons for dismissal and an opportunity
Habeas Corpus in the same court. This        for Lee to respond before dismissal. The
petition was denied because the PCRA         Superior Court also noted that Lee had
petition was pending. On June 1, 1995,       made clear his intent to proceed pro se
PCRA counsel requested that he be            long before the Court of Common Pleas
relieved as counsel since Lee wanted to      dismissed his petition. App. Vol. II at
represent himself. This request was          114 n.1.1
granted. On June 6, 1995, the court
ordered Lee to provide notice of whether
he intended to pursue his PCRA petition         1
                                                    The appendix annexed to Petitioner’s
pro se. The order noted that if Lee failed   brief in this case will be designated as
        On August 14, 1998, five months    the Court of Common Pleas to do so, the
later, the Court of Common Pleas issued    Superior Court remanded the case to the
a new opinion in response to the ruling    Court of Common Pleas to determine
of the Superior Court. This new opinion,   whether Lee was still serving his
however, mistakenly did not address the    sentence.2
PCRA petition, but instead addressed
only the Motion for Relief / Disposition          On June 25, 2002, Lee filed a
Without Hearing, which it had already      Third Amendment to the PCRA petition,
dismissed. Nonetheless, the court          attempting to highlight the fact that no
concluded its opinion by ordering that     court had addressed his claims. The
the PCRA petition be dismissed within      Commonwealth moved to dismiss this
twenty days unless Lee could show cause    application contending that Lee had
why the court should rule otherwise.       served his sentence in full. On July 19,
Within that deadline, Lee filed a          2002, the Commonwealth withdrew this
response in which he reiterated the five   motion when it realized that Lee was still
claims in his original PCRA petition and   serving his sentence. On February 25,
also added an ineffective assistance of    2003, almost a year after the remand, the
counsel claim. On September 23, 1998,      Court of Common Pleas reinstated its
the trial court dismissed the PCRA         September 23, 1998 Order. Lee appealed
petition without further comment.          this decision to the Superior Court,
                                           which has not yet ruled on his appeal.
        Lee filed a timely appeal on
October 17, 1998. The case was not                 On June 5, 2002, Lee filed a
submitted for a panel review in the        Petition for Writ of Habeas Corpus in the
Superior Court until almost three years    United States District Court. In that
later, in September of 2001. According     petition, Lee alleged ineffective
to the Superior Court the delay occured    assistance of counsel at the trial and
because “[i]nexplicably, the trial court   appellate level, denial of due process,
record was not . . . filed in this Court   denial of fair trial, denial of equal
until April 2001.” Id. at 201. On March    protection and prosecutorial misconduct.
20, 2002, almost six months after the      Lee also filed a brief explaining his
case had been submitted for review, the    failure to exhaust state remedies. On
Superior Court issued its decision. The    September 3, 2002, the U.S. District
Superior Court noted that “[t]he           Court dismissed the habeas petition for
procedural history in this case is         failure to exhaust state remedies. At the
torturous” and called it “an ongoing       time of this appeal, Lee was serving
odyssey of litigation.” Id. at 200-01.     probation which was scheduled to end on
Nonetheless, instead of deciding the
PCRA petition on the merits or directing
                                              2
                                                 On May 1, 2002, Lee petitioned the
                                           Superior Court for additional relief, but
“App.”                                     that petition was denied.
October 10, 2003.                             ex rel. Senk v. Brierley, 471 F.2d 657,
                                              660 (3d Cir. 1973) (three and a half year
                    II.                       delay); United States ex rel. Geisler v.
        Under ordinary circumstances, a       Walters, 510 F.2d 887, 893 (3d Cir.
federal court may not entertain a petition    1975) (stating in dicta that three years
for a writ of habeas corpus unless the        and four months to decide a motion for a
petitioner has first presented each of his    new trial was an inordinate delay
claims to the state’s highest tribunal. See   sufficient to obviate the exhaustion
28 U.S.C. §§ 2254 (b), (c); Rose v.           requirement). The government attempts
Lundy, 455 U.S. 509, 515-16 (1982).           to distinguish this precedent by noting
Exhaustion, however, is not a                 that these cases were inactive for years
jurisdictional matter but a matter of         (i.e., no hearings, decisions, etc.) while in
comity. See Story v. Kindt, 26 F.3d 402,      Lee’s case there has been a great deal of
405 (3d Cir. 1994). Federal courts need       movement. Gov’t. Br. at 28. The same,
not defer to the state judicial process       however, can be said for a grand mal
when there is no appropriate remedy at        seizure. Unfortunately, in both cases, the
the state level or when the state process     movement is painful and aimless.
would frustrate the use of an available
remedy. Id.; 28 U.S.C. § 2254(b)(1)(B).               It took the lower court eighteen
We have held that “inexcusable or             months to dismiss Lee’s petition for the
inordinate delay by the state in              sole procedural reason that Lee failed to
processing claims for relief may render       officially state whether he intended to
the state remedy effectively unavailable.”    proceed pro se. It then took another
Wojtczak v. Fulcomer, 800 F.2d 353, 354       eighteen months for the Superior Court
(3d Cir. 1986). The existence of an           to vacate that order and remand the
inordinate delay does not automatically       petition. When the lower court finally
excuse the exhaustion requirement, but it     decided the petition on the merits, it
does shift the burden to the state to         decided the wrong petition. Due to what
demonstrate why exhaustion should still       appears to be an administrative error (or
be required. Story, 26 F.3d at 405            a string of such errors), the record was
(noting that this burden is “difficult to     not available to the appellate court until
meet”).                                       almost three years later. It was not until
                                              another six months later that the
       In the past, we have excused the       appellate court remanded the case.
exhaustion requirement for petitioners        However, the remand was solely to
who have undergone significantly shorter      determine whether Lee was still in
delays than presented here. Wojtczak,         custody. It then took almost a year for
800 F.2d 353, 356 (33 month delay             the lower court to reinstate its dismissal.
between filing PCRA and habeas                As far as we know the appellate court
petitions); Burkett v. Cunningham, 826        still has not ruled on this dismissal. The
F.2d 1208, 1210-11 (3d Cir. 1987) (five       arguments made in Petitioner’s initial
year delay in sentencing); United States      PCRA petition have still not been
considered by any court. This ping-pong         court’s ruling on his motions, and the
game the state court was playing with           concomitant delay in sentencing him.”).
Lee’s petition would almost be comical if       Thus, Schandelmeier stands for the
Lee had not been in custody this entire         unremarkable proposition that the
time awaiting resolution.                       allegations underlying a habeas petition
                                                must first be presented for consideration
        In deciding whether a delay is          in state court. Id. In the present case,
excessive, we do consider the degree of         however, Lee’s petition is not based on
progress made in state court. See, e.g.,        the state court delay but on other alleged
Cristin v. Brennan, 281 F.3d 404, 411           constitutional violations. Moreover,
(3d Cir. 2002) (holding that a 27 month         Schandelmeier was unable to show that
delay was not excessive given that a            “there was no opportunity for him to
hearing was held and the petition was           obtain redress in the state court system”
ruled upon). In this case, however, we          because “[t]he only actions taken by
do not believe that any real progress has       Schandelmeier to obtain state relief on
been made. Regardless, it is difficult to       the grounds asserted in his federal
envision any amount of progress                 petition [were] the letters that he
justifying an eight-year delay in reaching      allegedly wrote to the trial court.” Id. at
the merits of a petition.                       53-54. In contrast, Lee has done all that
                                                can reasonably be expected to pursue his
         The government now has the             claim in state court. “[I]t is the legal
chutzpah to suggest that Lee should have        issues that are to be exhausted, not the
first presented this “inordinate delay”         petitioner.” Burkett, 826 F.2d at 1218
claim to the state court. Gov’t. Br. at 24.     (quoting Walters, 510 F.2d at 893).
If only finite life-spans would permit.         Therefore, we decline the government’s
Given that it has thus far taken eight          invitation to return Lee’s petition to legal
years for the state court to consider Lee’s     purgatory.
collateral attack, we can only imagine
how long it would take to decide whether                To add insult to injury, the
it is taking too long. Thankfully, there is     government concludes that “appellant
no requirement that a petitioner seeking        will not be entitled to relief” because “as
to excuse the exhaustion requirement            of October 3, 2003 appellant will fail to
first articulate the grounds therefor in        satisfy the ‘in custody’ requirement [of
state court. The case upon which the            §2254(a)], [as] his sentence will be
government relies for that proposition,         completed.” Gov’t. Br. at 30 n.10.
Schandelmeier v. Cunningham, 819 F.2d           However, what matters for the “in
52, 54 (3d Cir. 1986), is inapposite.           custody” requirement is whether Lee was
Unlike the present case, the substantive        in custody at the time his habeas petition
basis for Schandelmeier’s habeas claim          was filed. See 28 U.S.C. § 2254; Spencer
was, itself, the delay in state court. Id. at   v. Kemna, 523 U.S. 1, 7 (1998). It is
54 (“His habeas petition . . . is based         equally clear that being on probation
entirely upon the delay in the state            meets the “in custody” requirement for
purposes of the habeas statute. See                   Nor is Lee’s appeal moot. See
Mabry v. Johnson, 467 U.S. 504, 507 n.3       United States v. Frumento, 552 F.2d 534
(1984) (prisoner on parole remains “in        (3d Cir. 1977) (en banc). In Frumento,
custody” for purposes of 28 U.S.C. §          we noted that “an appeal is not moot
2254); Barry v. Brower, 864 F.2d 294,         even though the appellant has been
296 (3d Cir. 1988) (“We can see no            released from custody or has served his
material difference between probation         sentence if he has taken all possible steps
and parole in applying the ‘in custody’       to have the order of confinement
requirement of § 2254.”). Because it is       promptly reviewed prior to his release.”
not disputed that Lee was on probation at     Id. at 537, citing Sibron v. State of New
the time his federal habeas petition was      York, 392 U.S. 40, 53 (1968) (“[A] state
filed, it is clear that he was “in custody”   may not effectively deny a convict access
for purposes of the habeas statute.3          to its appellate courts until he has been
                                              released and then argue that his case has
                                              been mooted by his failure to do what it
   3
      The Supreme Court has explained         alone prevented him from doing.”); cf.
that the federal habeas statute requires      Fay v. Noia, 372 U.S. 391, 424 (1963)
that the petitioner be in custody “under      (“[C]onventional notions of finality in
the conviction or sentence under attack at    criminal litigation cannot be permitted to
the time his petition is filed.” Maleng v.
Cook, 490 U.S. 488, 490-91 (1989). The
fact that Lee is attacking his original       one conditional sentence which merely
conviction and sentence but is “in            deferred sentencing the defendant to a
custody” as a result of a probation           fixed term of total confinement until
violation is inconsequential. Under           such time as he violated the conditions of
Pennsylvania law, a violation of              his probation); 42 Pa. Cons. Stat. Ann. §
probation is not considered a separate        9771(b) (“Upon revocation the
offense but an element of the original        sentencing alternatives available to the
sentence. See Commonwealth v. Pierce,         court shall be the same as were available
497 Pa. 437, 441, 411 A.2d 1218, 1220         at the time of initial sentencing, due
(1982) (“The imposition of total              consideration being given to the time
confinement upon revocation of                spent serving the order of probation.”).
appellant’s probation was not a second        The same is true under federal law. See
punishment for his robbery conviction,        United States v. Hidalgo-Macias, 300
but was an integral element of the            F.3d 281, 285 (2d Cir. 2002) (compiling
original conditional sentence.”);             cases); United States v. Thomas, 961
Commonwealth v. Colding, 482 Pa. 112,         F.2d 1110, 1119 (3d Cir. 1992) (“For
393 A.2d 404 (1978) (holding that the         parole and probation revocations, the
revocation of probation and the               Guidelines specify that the original
imposition of a term of total confinement     sentence and the sentence imposed after
was not violative of the double jeopardy      probation is revoked are added and
clause, since the defendant was given         counted as if they were one sentence.”).
defeat the manifest federal policy that        Godot. The government has not met this
federal constitutional rights of personal      burden.5 We therefore conclude that Lee
liberty shall not be denied without the        should be required to wait no longer and
fullest opportunity for plenary federal        that the district court should entertain his
judicial review.”). 4 In the present case,     petition on its merits.6 See Wojtczak, 800
we find that Lee took all possible steps to    F.2d at 356. We reverse and remand for
have his claims promptly reviewed prior        that purpose.
to his release. While it is true that Lee
could have brought his federal habeas
petition earlier in the hope that we would
have excused the exhaustion
requirement, the success of such efforts
would be mere speculation. Moreover,
we cannot fault Lee for first attempting
to exhaust state remedies.

        In summary, Lee has shown that,
at the time he filed his federal habeas
corpus petition, his PCRA petition had            5
                                                     We note that if we were to affirm
been before the Pennsylvania state courts
                                               the district court and thus require Lee to
for almost eight years with no resolution.
                                               exhaust his state remedies, he would
Under these circumstances, the burden
                                               never be able to file a federal habeas
was on the government to demonstrate
                                               petition because he would not meet the
why Lee should continue to wait for
                                               “in custody” requirement at the time of
                                               the filing of his petition. See 28 U.S.C.
                                               §2254(a). This is one reason we have
   4
      In subsequent cases, we noted that       suggested that “when petitioners have
this exception to mootness only applies        filed habeas actions in federal court
where a “personal liberty interest is at       before they have fully exhausted their
stake.” Matter of Kulp Foundry, Inc.,          state remedies . . . the federal action
691 F.2d 1125, 1129 (3d Cir. 1982)             should be stayed” rather than dismissed
(holding that the exception does not           as premature. Merritt v. Blaine, 326 F.3d
apply to OSHA inspection cases). There         157, 170 n.10 (3d Cir. 2003) (compiling
can be no question, however, that a            cases).
personal liberty interest is at stake in the
                                                  6
present case. See Matter of Establish                In the event that the district court is
Inspection of Metal Bank of America,           inclined to dismiss any of Lee’s claims
Inc., 700 F.2d 910, 913 n.3 (3d Cir.           on procedural grounds, we strongly urge
1983) (“[A] personal liberty interest such     that, if possible, it also analyze and rule
as imprisonment must be at stake for the       on the merits of those claims so that
Frumento exception to apply.”)                 Lee’s unfortunate experience in state
(emphasis added).                              court is not repeated here.
