STANTON T. STORY v. WARDEN TOM KINDT; ATTORNEY GENERAL PREATE
No. 92-3586
United States Court of Appeals for the Third Circuit
May 27, 1994
Precedential or Non-Precedential: Docket 92-3586
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No. 92-3586
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STANTON T. STORY, Appellant v. WARDEN TOM KINDT; ATTORNEY GENERAL PREATE WARDEN TOM KINDT, Appellee
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On Appeal From the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 92-00281)
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Argued: February 15, 1994
Before: BECKER, HUTCHINSON and COWEN, Circuit Judges.
(Filed 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 415 Convention Tower 960 Penn Avenue Pittsburgh, PA 15222 Attorneys for Appellant
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OPINION OF THE COURT
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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 exhaustion 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 entries in the order of their filing. This method makes it difficult to determine whether or when a particular order was
I. PROCEDURAL HISTORY
A. The Underlying Conviction
In October 1979, Story was convicted for the first degrеe 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, 440 A.2d 488 (Pa. 1981).0
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
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 failed 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
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.0 Story filed objections, in which
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, 1993.0 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
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 exhаustion 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, 112 S. Ct. 3055, 120 L. Ed.2d 921 (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
Story has demonstrated, and the Commonwealth has not denied, that he has suffered significant delay at the hands of the Court of Cоmmon 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.0 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 it wholly untenable to penalize Story for his attorneys’ failures and the Court of Common Pleas’ inability to manage its own dоcket. Nor do we consider recent progress on Story‘s PCHA petition sufficient to require him to afford the state‘s courts three more years,0 in addition to the nearly nine already consumed.0 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
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 considerаble effort rummaging through each page of the ledgers. Although the court computerized the ledger system in 1978, computerization did not remedy the problem; the court still does not create a running central docket sheet for each criminal case until the case is appealed to the Superior Court of Pennsylvania, and so there is no convenient source which reflects the filings that have occurred in a particular case.
We are surprised that a court with such a distinguished history as the Court of Common Pleas for Allegheny County lacks a central docket 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.0 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.0
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 wherе, 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 jury0 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 other 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.
I.
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.”
II.
The Sixth Amendment, applied through the Fourteenth Amendment to the states, Duncan v. Louisiana, 391 U.S. 145, 147-58, 88 S. Ct. 1444, 1446-52 (1968), provides in part that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State.”
In any event, I believe Story‘s argument that trying a non-capital defendant before a death-qualified jury violated his Sixth Amendment right to a trial before an impartial jury is based on a common sense understanding of the Amendment and the nature the death qualification process, and is foreshadowed by Supreme Court cases which require compelling or significant interests to justify trying a defendant before a death-qualified jury. There is no need for a novel interpretation. Thus, he is not seeking the benefit of a new rule.
Assuming that Story seeks to rely on a new rule, that rule falls within the second exception to the Teague rule because it is a watershed rule “implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 1263 (1990). The proper functioning of the jury occupies an importance place in our system of justice, and courts have zealously guarded it against unlawful interference. See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 2080-2083 (1993) (constitutionally defective reasonable doubt instruction cannot be harmless error); United States v. Pelullo, 14 F.3d 881, 887-97 (3d Cir. 1994) (collateral estoppel cannot be applied against a criminal defendant to establish an element of the crime). But see Adams v. Aiken, 965 F.2d 1306, 1312 (4th Cir. 1992) (the rule invalidating constitutionally defective reasonable doubt instruction does not fall within the second exception to the Teague nonretroactivity principle), cert. denied, 508 U.S. 974, 113 S. Ct. 2966 (1993), cert. granted on reh‘g and judgment vacated, 511 U.S. 1001, 114 S. Ct. 1365 (1994) (remanding the case to the Court of Appеals for the Fourth Circuit for reconsideration in light of Sullivan v. Louisiana).
The impartiality of the judge and/or trier of facts is a basic component of a proceeding. See Tumey v. Ohio, 273 U.S. 510, 532-34, 47 S. Ct. 437, 444-45 (1927) (trial by potentially biased judge violated due process); Haupt v. Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994). The impartiality of the jury which is the sole trier of facts and the arbiter of guilt in a criminal case, is more fundamental and more important. The selection of a partial jury destroys any pretense of fairness in a proceeding. See also infra at 10 (non-impartial and biased jury cannot be harmless).
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, 106 S. Ct. at 1764-70, and to try a non-capital defendant together with a capital defendant in a joint trial, Buchanan, 483 U.S. at 414-25, 107 S. Ct. at 2913-19. The Court was not without difficulty in permitting the use of death-qualified juries even in these limited circumstances. The Court went out of its wаy 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 for 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 decide all of the issues in the case (both the guilt phase and sentencing phase), and (2) to allow the defendant to benefit at the sentencing phase of the trial from the jury‘s “residual doubts” about the evidence presented at the guilt phase. McCree, 476 U.S. at 180-81, 106 S. Ct. at 1768-69. Of course, a state has a legitimate interest in not having a juror who is against the death penalty sit on a jury whose duty includes administering the penalty of death. As to non-capital defendants in joint trials with capital defendants, they may be tried before a
These justifications are completely absent in cases such as this where the 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, “[t]he State conceded . . . and the Court‘s analysis today implicitly accepts, that the Sixth Amendment would have prohibited death qualification had petitioner been tried alonе.” Buchanan, 483 U.S. at 430, 107 S. Ct. at 2922 (Marshall, J., dissenting).
The state interests that motivated the holding in both McCree and Buchanan are not present in this case. 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 co-defendants who are subject to capitаl punishment), by a `death qualified’ jury when any other reasonable alternative short of a severance is available and where such alternative is requested by the non-capital defendant.“) (citation omitted).
More imрortant, if a death-qualified jury can be presumed to be conviction-prone, it is not one that “will conscientiously apply the law and find the facts,” McCree, 476 U.S. at 178, 106 S. Ct. at 1767, in the true sense of that phrase. To hold 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 those jurors disturbs many a jurist. Most recently, Justice O‘Connor was persuaded to approve permitting defendants, but not the state, to exercise peremptory challenges on the basis of gender in order to prevent conviction-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, 1432-33 (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 all serious criminal casеs. It would be repugnant to our system of justice if, for example,
IV.
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, 87 S. Ct. 824 (1967); Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993) (habeas case). Some structural errors, however, are not. See Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 2080-83 (1993) (unconstitutional reasonable doubt instruction not subject to harmless error analysis); but see Kontakis v. Beyer, 19 F.3d 110, 115-119 (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 victim 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 framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (Rehnquist, C.J., delivering the opinion of the Court) (citing Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927)). Similarly, and even 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, 97 S. Ct. 399 (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, 107 S. Ct. 2045, 2052-57 (1987) (reaffirming Davis; improper exclusion of juror in capital case not subject to harmless error analysis); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022 (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.