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


8-14-1995

Carter v Vaughn
Precedential or Non-Precedential:

Docket 94-3138




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Carter v Vaughn" (1995). 1995 Decisions. Paper 219.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/219


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
1
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                           No. 94-3138


                      LEXIE LITTLE CARTER,

                                          Appellant

                                  v.

                        DONALD T. VAUGHN



            Appeal from United States District Court
            for the Western District of Pennsylvania
               (D.C. Civil Action No. 91-cv-01142)



         Submitted Pursuant to Third Circuit LAR 34.1(a)
                       February 3, 1995


       Before:   SCIRICA, ROTH and SAROKIN, Circuit Judges


                 (Opinion filed    August 14, 1995)




Joel B. Johnston, Esq.
Thomas Schuchert & Associates
Eighteen East
One Gateway Center
Pittsburgh, PA 15222
          Attorney for Appellant

Robert E. Colville
District Attorney
Claire C. Capristo
Deputy District Attorney
Elizabeth Brown
Assistant District Attorney
Kemal Alexander Mericli


                                  2
Assistant District Attorney
Office of the District Attorney
401 Allegheny County Courthouse
Pittsburgh, PA 15219-2489
          Attorneys for Appellee




                      OPINION OF THE COURT




ROTH, Circuit Judge



          Appellant Lexie Little Carter, III appeals from the

district court's denial of his habeas corpus petition.   The court

refused to consider the merits of Carter's petition on the




                               3
grounds that he had failed to exhaust state remedies.    We will

reverse this decision, and we will remand this case to the district court because t

district court did not address whether Carter's failure to appeal his claims throug

state court system resulted in procedural default of his claims.

                                              I.

            On July 1, 1991, Carter filed a petition for federal habeas corpus relief

pursuant to 28 U.S.C. § 2254.0   He challenged his conviction on eighteen counts of a

robbery and one count of possessing a prohibited offensive weapon.   He also challen

resulting sentence of 182 to 365 years imprisonment imposed by a Pennsylvania court

common pleas. Carter alleged that the state court had refused to rule upon his peti

for writ of error coram nobis, filed on February 27, 1984, during the state crimina

proceedings against him, and also had refused to rule on his petition for post-conv

collateral relief, filed July 15, 1987,0 pursuant to Pennsylvania's Post Conviction

Hearing Act, 42 Pa. Const. Stat. §§ 9501-9543 ("PCHA").0   Carter contended that the

court's delays violated his rights to due process of law and equal protection, rend

the state corrective process ineffective so that exhaustion of state remedies shoul

excused.0

            The district court did not act on the petition for habeas corpus relief b

retained jurisdiction and thereafter began monitoring the state court proceedings.0
0
          The claim represented Carter's fifth federal habeas challenge. The distr
court dismissed the previous four petitions for failure to exhaust state remedies.
0
          The magistrate's report concluded that the petition raised the same issue
raised in the writ of error coram nobis.
0
          The PCHA was amended in 1988 and is now known as the Post Conviction Reli
("PCRA"). See 42 Pa. Cons. Stat. § 9541.
0
          In addition, Carter reiterated claims that the district court found to ha
set forth in his previous state court petitions. He alleged that the Commonwealth
knowingly elicited perjured testimony in violation of his right to due process of l
permitted him to be prosecuted and convicted on a robbery charge that the committin
magistrate had originally dismissed at the preliminary hearing stage, in violation
rights against double jeopardy.
0
  Carter also contends that it was error for the district court, at the time his hab
petition was filed, to have failed to excuse him from exhausting state remedies bec


                                              2
discovering that the state court had lost Carter's PCHA petition, the court issued

order, dated December 11, 1991, mandating that Carter produce a copy of his state p

conviction petition for the respondents and the state court and directing the Commo

to refile it on Carter's behalf.    The district court continued to oversee the state

action until July 1993.    During that time, the district court issued several orders

requiring the District Attorney's Office of Allegheny County to update it periodica

the status of the state court proceedings related to the petition.

            The district court also ordered Carter's state-appointed attorney, Jack

Conflenti, to file a copy of a notice of intention to proceed in post-conviction

proceedings on Carter's behalf.    Conflenti sought and was granted two extensions of

to make the filing but eventually withdrew as counsel.    Attorney Erika Kreisman ass

representation of Carter and complied with a court order to file a copy of a notice

intention to proceed. Kreisman filed an amendment to the PCHA petition in November

but then requested and was granted two extensions of time to file a supplemental am

petition.

            Ultimately, on July 8, 1993, the court of common pleas issued an order

dismissing Carter's claims without a hearing and advised him of his rights to file

appeal in the superior court within thirty days.    Carter did not appeal.   Moreover,

motion to withdraw from the case, Carter's counsel stated that Carter had directed
to appeal the decision.

            The Commonwealth then filed a motion in the district court to dismiss Car

habeas petition on the grounds that he had failed to exhaust available state law re

the 47 month delay which had already occurred. We asked for further briefing by th
parties on this issue. We now conclude that we do not need to consider whether it
error for the district court not to have excused exhaustion at the time of the fili
the petition. The fact that Clark has now received state court review of his PCHA
petition, renders this issue moot. See Walker v. Vaughn, 53 F.3d 609, 615-16 (3d C
1995) (comity, record creation concerns, judicial economy, and avoidance of duplica
proceedings all argue against a district court ignoring a state court post-convicti
relief proceeding, even if that proceeding took place only after considerable delay


                                              3
The magistrate judge recommended that the district court dismiss Carter's claims on

ground.   Appendix ("App.") at 647.    While noting that Carter's time to appeal had l

and his claims had therefore defaulted, the magistrate judge concluded that the pro

bar issue was not before the court.    App. at 646 n.2. By order entered March 8, 199

district court adopted the magistrate judge's Report and Recommendation and dismiss

petition for failure to exhaust state remedies.

           Although Carter did not appeal the final order denying him post-convictio

relief in the state trial court, he did file a timely notice of appeal of the denia

his habeas petition and requested the issuance of a certificate of probable cause t

appeal, which a panel of this court granted on August 24, 1994.

          Pursuant to 28 U.S.C. § 1291, we have jurisdiction over this appeal from

district court's final order dismissing Carter's petition.     We exercise plenary rev

over the district court's conclusion that state remedies have not been exhausted an

exhaustion should not be excused.     Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994),

denied, 115 S. Ct. 593 (1994); Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir. 1991

                                              II.

          Pursuant to 28 U.S.C. §§ 2254(b) & (c), a federal court may not grant an

application for writ of habeas corpus for a state prisoner until the applicant has

exhausted available state remedies.0    In general, "a state prisoner seeking federal

0
          28 U.S.C. §§ 2254(b) and (c) provide:

               (b) An application for a writ of habeas corpus in behalf of a perso
          custody pursuant to the judgment of a State court shall not be granted un
          appears that the applicant has exhausted the remedies available in the co
          the State, or that there is either an absence of available State correcti
          process or the existence of circumstances rendering such process ineffect
          protect the rights of the prisoner.

               (c) An applicant shall not be deemed to have exhausted the remedies
          available in the courts of the State, within the meaning of this section,
          has the right under the law of the State to raise, by any available proce
          the question presented.


                                               4
relief must present each of his claims to the state's highest court."   Story v. Kin

F.3d at 405; Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986).   Exhaustion does no

the court's jurisdictional power to issue a writ but rather arises from considerati

comity.   Rose v. Lundy, 455 U.S. 509, 515 (1982); Codispoti v. Howard, 589 F.2d 135

(3d Cir. 1978). Therefore, federal courts may entertain the merits of a petition fo

habeas corpus where state remedies have not been exhausted "when no appropriate rem

exists at the state level or when the state process would frustrate the use of an

available remedy." Story, 26 F.3d at 405.

          As we have held, "inexcusable or inordinate delay by the state in process

claims for relief may render the state remedy effectively unavailable."   Story, 26

405. Therefore, this court has on previous occasions excused the petitioner from th

exhaustion requirement where the state court delayed processing the petitioner's

constitutional claims in post-conviction proceedings.0   Unlike those cases, however,

state court has adjudicated the petitioner's claims in the instant case, albeit und

federal monitoring.   The district court's monitoring effectively prodded the state

to address Carter's claims while preserving deference to the Commonwealth and its

procedural rules.   Under the district court's supervision, the state court procedur

lasted for little more than a year and a half, from December 11, 1991 to July 8, 19

despite the withdrawal of Carter's first attorney and his second attorney's request
extensions of time to file a supplemental petition.   Thus, Carter had a final appea

decision over a year and eight months ago.   Had he appealed the decision through th

courts, he then could have presented the federal district court with exhausted clai

for review.

0
          See Story, 26 F.3d at 402 (remanding petitioner's case for consideration
merits upon concluding that a nine-year delay in post-conviction collateral proceed
state court was inordinate); Wojtczak, 800 F.2d at 353 (excusing the petitioner's f
to exhaust statutory remedies due to a 33-month delay between the filing of state p
conviction petition and the filing of federal habeas petition where the court found
nothing in the record to indicate that the petitioner was responsible for the delay


                                             5
          Clearly the state court's docketing system, in which the petition for pos

conviction relief was lost or misplaced, was inadequate to protect Carter's interes

The state court's failure to proceed in the matter until the district court commenc

monitoring the case almost four and a half years later is reprehensible.0   Nonethel

the district court's decision to monitor the state court proceedings rather than to

the delay in the state collateral proceedings sufficient to excuse the exhaustion

requirement appropriately respects considerations of comity.

          The district court recognized that the Pennsylvania courts should have th

opportunity to address and correct alleged constitutional violations arising out of

Carter's conviction and sentencing. As the Supreme Court explained in Rose,
          [b]ecause "it would be unseemly in our dual system of
          government for a federal district court to upset a
          state court conviction without an opportunity to the
          state courts to correct a constitutional violation,"
          federal courts apply the doctrine of comity, which
          "teaches that one court should defer action on causes
          properly within its jurisdiction until the courts of
          another sovereignty with concurrent powers, and already
          cognizant of the litigation, have had an opportunity to
          pass upon the matter."


Rose, 455 U.S. at 518 (citing Darr v. Burford, 339 U.S. 200, 204 (1950).

                                           III.



0
          Even more time elapsed between the filing of the petition for writ of err
coram nobis and the district court's monitoring. As the Appellee argues, however, C
petition could not have been considered when originally filed. The writ, which was
abolished in 1988 by the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat
9542, existed at the time of Carter's trial only as an extraordinary post-trial rem
"that afford[ed] the trial court an opportunity to correct its own record when vita
[were] discovered that were unknown when the judgment was entered." Commonwealth v
Thomas, 513 A.2d 473, 474 (Pa. Super. 1986). To be awarded such a writ, a petition
to demonstrate "(1) [the existence of] facts . . . not in the record and . . . unkn
the court when the judgment was announced, and that, if known, would have prevented
judgment, and (2) the absence of a remedy at law." Id.; see also Commonwealth v. M
386 A.2d 482, 490 (Pa. 1978). Carter did not incorporate the claims in his petitio
writ of error coram nobis in a post-trial motion until his 1987 PCHA petition.


                                            6
          Carter did not appeal the final and appealable order denying him post-con

relief in the state trial court.   But the magistrate judge's Report and Recommendat

adopted by the district court, expressly declined to determine whether the failure

appeal resulted in procedural default.   App. at 646 n.2.   Nor has any Pennsylvania

court held that the claims are defaulted.   Because the parties did not discuss whet

Pennsylvania state law clearly forecloses state court review of Carter's unexhauste

claims, we remand this case to the district court to address this issue.

          This court has previously held that where "no state court has concluded t

[the] petitioner is procedurally barred from raising his unexhausted claims and sta

does not clearly require a finding of default," the district court should dismiss t

habeas petition without prejudice for failure to exhaust state remedies.    See Touls

Beyer, 987 F.2d 984, 989 (3d Cir. 1993) (declining to predict how New Jersey state

would resolve procedural default issue).    By so holding, this court recognized that

issue of procedural default under state law may be best addressed by state courts i

first instance. Id. at 988 n.7.    On remand the district court should determine whet

there exists any ambiguity as to whether Carter's inaction constitutes procedural d

pursuant to Pennsylvania state law.   If such ambiguity exists, it should dismiss th

petition without prejudice.   If, on the other hand, the district court concludes th

pursuant to Pennsylvania law, Carter's failure to appeal his claims unambiguously
constituted procedural default, we direct the district court to conduct a further i

The court must then determine whether cause and prejudice existed for Carter's proc

default or whether failure to consider Carter's claims would "result in a fundament

miscarriage of justice."   See Coleman v. Thompson, 501 U.S. 722, 750 (1991).0

0
          In Coleman v. Thompson, the Supreme Court held that

          [i]n 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


                                              7
                                            IV.

           Accordingly, the judgment of the district court will be reversed and the

will be remanded to the district court for further proceedings consistent with this

opinion.




         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.
Coleman, 501 U.S. at 750.


                                             8
SAROKIN, Circuit Judge, concurring.

          I concur in the result, because no matter how unconscionable the delay in

state proceedings, I agree that they cannot be ignored once they finally take place

Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).    Furthermore, while I recognize the p

and propriety of the district court encouraging and even coercing the state court t

action, I believe that a time comes when enough is enough.    A petitioner is entitle

have his claim that exhaustion of state court remedies should be excused adjudicate

the time his petition is filed.   In this matter, the petitioner had been waiting fo

years for a decision on his postconviction petition before the state court.

Significantly, when Carter filed his federal habeas petition the state court had no

begun to process the postconviction petition and, in fact, its clerk's office had l

Carter's petition.   Nonetheless, it was appropriate for the district court in the

interests of comity to afford a further and reasonable opportunity for the state to

However, in this instance the district court afforded an additional two years.    In

that further delay required that the interests of comity yield to the rights of the

petitioner.   He was entitled to have an adjudication that the exhaustion requiremen

excused and to receive a determination on the merits of his petition.

          However, having finally received a state adjudication, and having failed
appeal therefrom, I concur in the order of remand, although I recognize that the hi

of this petitioner's treatment in the state courts might well excuse and explain hi

failure to appeal a decision in state court which came six years after he moved in

court and two years after he filed his petition in federal court.    I do not think t

comity necessarily requires us to await a state court so unmindful of the rights of

convicted criminal defendant to have a speedy adjudication of his postconviction cl




                                             9
