Stanton T. STORY, Appellant, v. Warden Tom KINDT; Attorney General Preate.
No. 92-3586.
United States Court of Appeals, Third Circuit.
May 27, 1994.
The validity of the Agreement and the expansiveness of its arbitration clause having already been established, once the defendants made this concession the district court’s role in the grievance should have been over. It should not have entertained the case beyond establishing those facts necessary to determine that the defendants were duty-bound to arbitrate LIUNA’s grievance. Accordingly, its conclusion that the defendants breached the Agreement exceeded its authority — the broad arbitration clause reserved for an arbitrator the power to answer that question.32
V. Conclusion
Because the Board’s Deklewa ruling applies retrospectively to the parties, FWEC never successfully repudiated the Agreement as to any location prior to its total termination of that agreement in July 1986. The Agreement contains a broad, inclusive arbitration clause, one whose reach extends to whether the Agreement governs operations at a specific constructiоn site or not. Therefore, FWEC must arbitrate the dispute over application of the Agreement to the MOEPSI site with LIUNA according to the procedure specified in Article XV thereof. Since FWC is FWEC’s alter ego, it too must comply with Article XV of the Agreement and proceed to arbitration alongside its subsidiary.
Accordingly, we will reverse the district court’s June 22, 1992 order insofar as it concludes that Deklewa does not apply retrospectively to this case, that our earlier mandate vacated the arbitrator’s two factual findings, and that the defendants breached the Agreement. We will remand with instructions that the court modify its June 22, 1992 Order, as revised by the orders of March 11 and 31, 1993, to direct the parties to submit to arbitration the issues of breach and the amount of damages allegedly sustained by LIUNA, its local, and its membership33 on account of FWEC’s alleged breach of the pre-hire agreement at the MOEPSI site up to the date of FWEC’s effective termination of the Agreement, July 15, 1986.
Argued Feb. 15, 1994.
Decided May 27, 1994.
Thomas S. White, Federal Public Defender, W. Penn Hackney, First Asst. Federal Public Defender, Michael D. Bartko (argued), Asst. Federal Public Defender, Pittsburgh, PA, for appellant.
Robert E. Colville, Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Thomas N. Farrell (argued), Asst. Dist. Atty., Pittsburgh, PA, for appellees.
Before: BECKER, HUTCHINSON and COWEN, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal by Stanton T. Story from an order of the United States District Court for the Western District of Pennsylvania denying his petition for a writ of habeas corpus on the ground that he had failed to exhaust available state court remedies. Story contends that we must excuse the exhаustion requirement because the nine-year delay in his post-conviction collateral proceedings in the Court of Common Pleas of Allegheny County was inordinate. We agree. We therefore reverse the order of the district court and remand the case for consideration of Story’s habeas petition on the merits. In doing so we note that it seems likely that Story would not have suffered this delay had the Court of Common Pleas maintained a central docket sheet for each criminal case rather than a system which merely lists en-
I. PROCEDURAL HISTORY
A. The Underlying Conviction
In Oсtober 1979, Story was convicted for the first degree murder of Police Officer Patrick Wallace and sentenced to death. Story appealed his conviction and sentence to the Supreme Court of Pennsylvania, which affirmed the judgment of conviction but vacated the death sentence and imposed a sentence of life imprisonment. Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981).1
B. State Collateral Proceedings
In July 1983, Story, acting pro se, sought post conviction collateral relief in the Court of Common Pleas of Allegheny County pursuant to Pennsylvania’s Post Conviction Hearing Act (“PCHA”),
Story appealed the denial of PCHA relief to the Superior Court of Pennsylvania. On April 19, 1985, that court vacated the trial court’s judgment and remanded the matter for appointment of new counsel and other necessary proceedings. On June 5, 1985, the Court of Common Pleas appointed George C. Entenman to pursue Story’s collateral claims by filing an amended PCHA petition. According to Story, he attempted to contact Entenman on several occasions to urge the filing of an amended petition, and even sent family members to Entenman’s office for the same purpose, but Entenman failed to comply with the Court’s order.
Nearly eleven years after Conflenti failed to file an amended petition, and nearly nine years after Entenman failеd to act as well, Story’s PCHA petition remains in the Court of Common Pleas. The only activity on Story’s petition since June 5, 1985, has been the recent appointment of his third PCHA attorney (Jerome DeRiso) on February 24, 1993, and the filing of an amended petition a year later on February 14, 1994.
C. The Federal Habeas Proceedings
In February 1992, Story filed a pro se petition for a writ of habeas corpus,
The matter was referred to a magistrate judge who, despite Story’s revelations of state court delay, recommended that the district court dismiss the petition for failure to exhaust state court remedies.5 Story filed objections, in which he again asserted that, under the circumstances, the state process was ineffective to protect his rights, and that, in accord with
Story timely appealed, again seeking the issuance of a certificate of probable cause. A motions panel of this Court found probable cause to appeal and issued the certificate on May 28, 1993.7 Since this is an appeal from a final order dismissing Story’s pro se petition for writ of habeas corpus, we have appellate jurisdiction pursuant to
II. EXHAUSTION OF STATE REMEDIES
Generally, a state prisoner seeking federal habeas relief must present each of his claims to the state’s highest court. See Picard v. Connor, 404 U.S. 270, 275 (1971); Rose v. Lundy, 455 U.S. 509, 515, 102 S. Ct. 1198, 1201, 71 L. Ed. 2d 379 (1982). However, exhaustion is not jurisdictional, but a matter of comity. See Id., 455 U.S. at 515. The federal courts need not defer to the state judicial process when no appropriate remedy еxists at the state level or when the state process would frustrate the use of an available remedy. See
We observed in Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986) that “inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable,” thereby prompting the federal court to excuse exhaustion. Although the existence of an inordinate delay does not automatically excuse exhaustion, it does shift the burden to the state to demonstrate why exhaustion should still be required — a burden that is difficult to meet. See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987), cert. denied, 505 U.S. 1229 (1992); Wojtczak, 800 F.2d at 355.
In Wojtczak, for example, we dealt with a 33-month delay in deciding post-conviction petition, finding it sufficient to excuse exhaustion. Id. at 356. We have also found delays of eleven, five, twelve and three years sufficient to excuse exhaustion. See Hankins, 941 F.2d at 247 (eleven years to decide motion to withdraw guilty plea sufficient to excuse exhaustion requirement); Burkett, 826 F.2d at 1218 (five year delay sufficient to excuse exhaustion); Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir.1978) (twelve years to decide new trial motion); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir.1973) (three year delay in deciding
Story has demonstrated, and the Commonwealth has not denied, that he has suffered significant delay at the hands of the Court of Common Pleas for Allegheny County. The Commonwealth maintains, however, that its interest in deciding in the first instance issues raised concerning the prosecution of an alleged murderer, especially one who killed a state law enforcement officer, outweighs any delay he has suffered. The Commonwealth also claims that any delay was due to Story’s own failure to alert the Court of Common Pleas that the court had not yet ruled on his PCHA petition.8 Finally, the Commonwealth points to the recent progress on Story’s PCHA petition, and urges this Court to defer to the state process.
We find the facts in this case to be as egregious as those in the cases cited above. During the nearly eleven years of his PCHA proceedings, Story has had three court-appointed attorneys, two who failed to comply with a Court of Common Pleas order to file an amended petition on Story’s behalf, and one (the most recent) who took nearly a year to comply with a similar order. More importantly, however, the Court of Common Pleas neglected Story’s case for almost еight years, apparently because of what appears to be seriously deficient docket management procedures, see infra, taking action only after it received notice of Story’s federal petition.
We find it wholly untenable to penalize Story for his attorneys’ failures and the Court of Common Pleas’ inability to manage its own docket. Nor do we consider recent progress on Story’s PCHA petition sufficient to require him to afford the state’s courts three more years,9 in addition to the nearly nine already consumed.10 The Commonwealth simply has not met its burden to show why, in light of its inordinate and inexcusable delay, we should not excuse exhaustion. We will therefore reverse the order dismissing the habeas petition and remand the case to the district court with directions to entertain Story’s petition on the merits.
III. THE ALLEGHENY COUNTY DOCKETING SYSTEM
When we searched for some reasonable explanation for the Court’s failure to act on Story’s PCHA petition for such a lengthy period of time, we concluded that the monumental delay was, in large part, the result of serious deficiencies in the Court’s docketing system. For some reason, the Court of Common Pleas of Allegheny County maintains no running (contemporaneous) central docket sheets for work in process on any criminal case before it.
Before 1978, court personnel apparently recorded all filings and orders from all cases in a series of ledgers. The ledger entries appeared in chronological order of their happening. However, on any given day, the ledgers might have reflected several unrelated occurrences in several unrelated cases. Thus, it was nearly impossible for someone, including the court, to array in one place the proceedings of any particular case without expending considerable effort rummaging
As a result of this system, there was never a public record created to summarize the events in Story’s collateral proceeding. Nor was there a convenient method by which the presiding judge could monitor the progress of Story’s case, independent of the judge’s own recordkeeping. There was simply no way of knowing the status of a case without scanning the computer files by entering the defendant’s name, state offense tracking number (OTN), or the information (docket) number. The cumbersome nature of these methods apparently caused the court to overlook Story’s pending proceeding.
We are surprised that a court with such a distinguished history as the Court of Common Pleas of Allegheny County lacks a central dоcket sheet system capable of monitoring work in progress on each criminal case. We believe that the absence of such a system contributed to the terrible delay of nearly nine years that we observe here.11 We urge the Court of Common Pleas to upgrade its docketing system.
The order of the district court dismissing Story’s federal habeas petition will be reversed and the case remanded to the district court for consideration of the petition on the merits.12
COWEN, Circuit Judge, dissenting.
I agree with the majority that the inordinate delay in this case operates to excuse the exhaustion requirement, and join the opinion of the court to this extent. However, I cannot join in the judgment of the court to remand the case for the district court to address the merits of the petition. I believe once the exhaustion requirement is excused, we should also proceed to address the merits of the petition to the extent possible, particularly where, as here, our decision on any one issue would be dispositive of the petition. Petitioner Story argues, inter alia, that the state selected a death-qualified jury1 to try him when, in fact, he was not eligible for capital punishment, thereby violating his Sixth Amendment right to be tried by an impartial jury. This is strictly a legal question which has been briefed and argued before us. We need no further information in order to adjudicate the matter. I would proceed to decide the question in favor of Story, and grant the petition conditioned on Story’s not being retried before a non-death qualified jury within a reasonable period of time. This would render his remaining claims moot.
The majority contends that it is preferable for the district court to address the merits in the first instance. Maj.Op. at 407 n. 12. I respectfully disagree. As a general matter, a court of appeals does not remand purely legal questions to the district court for the sole purpose of having the district court address the question in the first instance. We are as competent as the district courts in resolving purely legal questions and thus do not need to remand with respect to such questions, although we almost invariably re-
I.
Story was tried and convicted in 1975 for first dеgree murder allegedly committed in July of 1974. He was sentenced to death. While his first appeal was pending, the death penalty statute pursuant to which he was sentenced to death was declared unconstitutional. Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914 (1978). Story’s conviction was reversed and he was granted a new trial because of the admission of improper and prejudicial evidence. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
Before Story’s retrial, the Pennsylvania legislature enacted a new death penalty statute, the Act of September 13, 1978 (“1978 Act”). There is a standing legislative mandate in Pennsylvania that “no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.”
Although Story was not a capital defendant in the second trial, the state informed the state trial court that it intended to seek death penalty for Story, and successfully
II.
The Sixth Amendment, аpplied through the Fourteenth Amendment to the states, see Duncan v. Louisiana, 391 U.S. 145, 147-58 (1968), provides in part that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State.”
The “impartial jury” requirement under the Sixth Amendment has spawned a greаt deal of debate and empirical studies. See McCree, 476 U.S. at 167-73. It is not necessary, however, to define the precise parameters of the impartiality requirement. It suffices to state that sociological studies on death-qualified juries cited in McCree, id., sufficiently demonstrate that death-qualified juries are problematic and not impartial in the true sense of the term. The Supreme Court “assume[d]” that the studies were “both methodologically valid and adequate to establish that ‘death qualification’ in fact produces juries somewhat more ‘conviction-prone’ than ‘non-death-qualified’ juries.” Id. at 173. In Buchanan, the Court again assumed that accumulated scholarly studies demonstrate that death-qualified juries are abnormally prone to convict. 483 U.S. at 415 n. 16 (citing McCree). The conviction proneness even when infecting only some jurors comprising the jury brings into doubt the impartiality of the jury as a whole, not to mention when conviction-proneness de facto serves as the sole criterion for the selection of the whole jury, as in the death qualification process. Accordingly, in a non-capital case, without more, death-qualified juries can be presumed not to be impartial juries within the meaning of the Sixth Amendment.
Recognizing the serious problem with a death-qualified jury, the Supreme Court has narrowly permitted such a jury to try a capital defendant, McCree, 476 U.S. at 173-85, and to try a non-capital defendant together with a capital defendant in a joint trial, Buchanan, 483 U.S. at 414-25. The Court was not without difficulty in permitting the use of death-qualified juries even in these limited cirсumstances. The Court went out of its way to justify the decision in each case by articulating compelling or significant state interests.
According to the Court, the state’s decision to have a death-qualified jury try a capital defendant can be justified by two important state interests that such a jury serves: (1) to obtain a single jury that could impartially
These justifications are completely absent in cases such as this where the sole defendant was not eligible for capital punishment. In such a case the Sixth Amendment prohibits the use of a death-qualified jury because there is no valid reason for empaneling such a jury. As Justice Marshall stated in his dissent in Buchanan, “[i]t is conceded ... and the Court’s analysis today implicitly accepts, that the Sixth Amendment would have prohibited death qualification had petitioner been tried alone.” Buchanan, 483 U.S. at 430 (Marshall, J., dissenting).
The state interests that motivated the holding in both McCree and Buchanan are not present in this cаse. By state legislation and case law, Story was ineligible for capital punishment. See Part I of this dissent. The state therefore had no legitimate interests that were sanctioned in McCree. There was no co-defendant in this case and, therefore, the state cannot resort to the state interest in holding joint trials as articulated in Buchanan. Accordingly, the state had no legitimate interest in having Story tried before a death-qualified jury. See also Middleton, 244 Cal.Rptr. at 396 (“We do not believe ... that there is any legitimate state interest that should compel the trial of a non-capital defendant over his or her objection (merely because there are other defendants who are subject to capital punishment), by a ‘death qualified’ jury where some other reаsonable alternative short of a severance is available and where such alternative is requested by the non-capital defendant.”) (citation omitted).
I am aware of the language of the Supreme Court in McCree that “an impartial jury consists of nothing more than ‘jurors who will conscientiously apply the law and the find the facts.’ ” McCree, 476 U.S. at 178 (citation omitted) (quoted in Buchanan, 483 U.S. at 417). I note that this language was meant to reject McCree’s argument that he was entitled to a balanced jury. Id. It was not meant to apply blindly to all situations. The Court itself did not seem to accord too much weight to its intimation. Indeed, if that language states the rule, the Court would not have had to go out of its way to justify the use of death-qualified juries by articulating compelling or significant state interests in McCree and Buchanan.
More important, if a death-qualified jury can be presumed to be conviсtion-prone, it is not one that “will conscientiously apply the law and find the facts,” McCree, 476 U.S. at 178, in the true sense of that phrase. To say otherwise is to ignore the realities of life. We should not close our eyes to the demonstrative inability of the conviction-prone, death-qualified jury to impartially decide guilt for the sole goal of adhering to the conclusion that even a conviction-prone jury can theoretically apply the law conscientiously. The conviction-proneness of certain jurors disturbs many a jurist. Most recently, Justice O’Connor was persuaded to advocate permitting defendants, but not the state, to exercise peremptory challenges on the basis of gender in order to prevent convictiоn-prone jurors from sitting on a jury (because women are more likely to convict in certain cases), although she agreed with the Court that the government should not be allowed to do so. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 1430-33, 128 L. Ed. 2d 89 (1994) (O’Connor, J., concurring). The reason she gave was that constitutional prohibitions against discrimination apply only to state actors, and not to defendants who are private actors. Id. If we permit a death-qualified jury to try a non-capital defendant, neither the Constitution nor logic provides a non-arbitrary stopping point. We may have to permit death-qualified juries to try less serious criminal cases. It would be repugnant to our system of justice if, for example, we tried a defendant indicted for third degree criminal assault before a deаth-qualified jury.
One may ask whether Story was prejudiced by trial before a death-qualified jury. Most constitutional trial errors are subject to a harmless error analysis. See generally Chapman v. California, 386 U.S. 18 (1967); Brecht v. Abrahamson, 507 U.S. 619 (1993) (habeas case). Some structural errors, however, are not. Sullivan v. Louisiana, 508 U.S. 275, 2080-83 (1993) (unconstitutional reasonable doubt instruction not subject to harmless error analysis); but see Kontakis v. Beyer, 19 F.3d 110, 114-18 (3d Cir.1994) (on habeas petition applying harmless error analysis to instructions that unconstitutionally altered the state’s burden to prove that the defendant killed his wife purposely). The case sub judice is distinguishable from Kontakis because Story’s argument is based on the partiality of the jury rather than defective jury instructions.
The Supreme Court has recognized the partiality of the trial judge as a structural defect not amenable to harmless error analysis because such a problem “affect[s] the framеwork within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (Rehnquist, C.J., delivering the opinion of the Court) (citing Tumey v. Ohio, 273 U.S. 510 (1927)). Similarly, and perhaps to a greater extent, trying Story before a death-qualified jury, which was required to make the ultimate decision of whether to convict Story, affected the whole proceeding and defied any attempt to search for fairness in the defective trial process. Cf. Davis v. Georgia, 429 U.S. 122 (1976) (per curiam) (improper exclusion of juror in capital case constitutes reversible constitutional error per se); Gray v. Mississippi, 481 U.S. 648, 659-68 (1987) (reaffirming Davis; improper exclusion of juror in capital case not subject to harmless error analysis); Johnson v. Zerbst, 304 U.S. 458, 462 (1938) (“The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ ” (citation omitted)). Accordingly, trial before a death-qualified jury is a structural error that is not amenable to a harmless error analysis.
For the foregoing reasons, I respectfully dissent from the judgment of the court. I would grant the petition conditioned upon Story’s not being retried before a non-death-qualified jury within a reasonable time.