RONALD WALKER, Appellant v. DONALD T. VAUGHN; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; DISTRICT ATTORNEY OF PHILADELPHIA COUNTY
No. 94-1367
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 3, 1995
1995 Decisions, Paper 118
SLOVITER, Chief Judge, HUTCHINSON and LEWIS, Circuit Judges
On Appeal from the United States District Court For the Eastern District of Pennsylvania, D.C. No. 92-cv-01616. Argued January 24, 1995.
Defender Association of Philadelphia
Federal Court Division
Philadelphia, PA 19106-2414
Attorney for Appellant
Donna G. Zucker (Argued)
Office of District Attorney
Philadelphia, PA 19102
Attorney for Appellees
OPINION OF THE COURT
SLOVITER, Chief Judge.
Appellant Ronald Walker appeals the district court‘s denial of his petition for a writ of habeas corpus filed pursuant to
I.
Facts and Procedural History
In November 1985, appellant Ronald Walker, armed with a double-barrelled shotgun and a handgun, entered the home of his estranged wife in Philadelphia. Walker proceeded to hold his wife‘s mother, sister and daughter hоstage in the home for a period of approximately twenty-four hours. After a long standoff with police, Walker released the hostages and surrendered. He was then charged with crimes arising out of the incident.
On October 9, 1986, after a jury trial in the Philadelphia Court of Common Pleas, Walker was convicted of three counts of kidnapping, one count of attempted kidnapping, burglary, simple assault and possession of an instrument of crime. The judgment and sentence in the case was entered on May 20, 1987. On April 13, 1989, Walker‘s conviction wаs affirmed on direct appeal in an unpublished opinion by the Pennsylvania Superior Court. See Commonwealth v. Walker, 561 A.2d 823 (Pa. Super. Ct. 1989).
Walker did not file a petition for allocatur to the Pennsylvania Supreme Court. Instead, on February 28, 1990 he filed a pro se petition under the Pennsylvania Post Conviction Relief Act (PCRA),
Walker‘s court-appointed counsel in the PCRA action, however, failed to prosecute the PCRA petition promptly, resulting in a delay of morе than two years.1 Thus, on March 19, 1992, Walker filed this petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania and listed as respondents Donald T. Vaughn by name (the Superintendent of the State Correctional Institute at
Graterford), the District Attorney of Philadelphia, and the Attorney General of Pennsylvania (hereinafter referred to jointly as the “State“). In his petition, Walker alleged that the delay in the resolution of his PCRA action rendered that action ineffective to protect his rights, and that therefore his failure tо exhaust his state post-conviction remedy should be excused.
Walker‘s court-appointed PCRA counsel did not appear at the state PCRA hearing on July 2, 1992. The state court therefore took a number of steps, including threatening the imposition of sanctions, in order to force Walker‘s cоunsel to appear. While those efforts were largely unsuccessful, Walker‘s PCRA counsel did file an amended PCRA petition on September 30, 1992. That amended petition, however, was not accompanied by the supplemental memorandum required by Pennsylvania law. After
several additional missed appearances, the state court ordered Walker‘s PCRA counsel to attend a hearing on December 15, 1992, and warned counsel that he risked being held in contempt if he did not appear on that date.
While the state court was still attempting to compel Walker‘s state counsel to appear in the PCRA proceedings, the district court ordered the parties in the federal habeas proceeding to appear for a hearing on December 15, 1992 regarding the status of Walker‘s state PCRA action. The state court then changed its hearing to December 14, 1992, and at that hearing heard testimony on the merits of Walker‘s PCRA claim.
The following day, December 15, 1992, the district court held its hearing on the magistrate judge‘s report recommending dismissal of the federаl action because Walker had failed to exhaust his state remedies. Walker testified that his PCRA counsel had represented him at the PCRA hearing the previous day, and that his original trial counsel had testified as a witness. The district court made no decision at that time. See Transcript of Proceedings, December 15, 1992, at 32.
On December 22, 1992, the state court removed Walker‘s court-appointed PCRA counsel, apparently because of his prior lack of diligence, and thereafter appointed a replacement. This marked renewed movement in the PCRA action.
On January 8, 1993, the district court held another hearing, at which Walker‘s former PCRA counsel testified, and advised the court he had been replaced. See Transcript of Proceedings, January 8, 1993, at 6-8. The district court
acknowledged that “things are beginning to move” in the state proceeding, id. at 16, but expressed doubt about whether the state proceeding would be resolved expeditiously. Id. at 9. After receiving a supplemental brief addressing the exhaustion question,2 the district court issued an order on Jаnuary 15, 1993 that disapproved the Report and Recommendation of the magistrate judge and ruled, instead, that the delay in the state PCRA proceeding was sufficient to waive Walker‘s exhaustion requirement under
On February 1, 1993, with the assistance of his federally-appointed habeas counsel, Walker filed an amended habeas petition raising thirty-one issues. After the State filed a response to the amended petition, the district court ordered Walker to file an offer of proof and brief citation to authority in support of each of the thirty-one claims which Walker intended to pursue. See Order of February
the offer of proof and citation to authority pending the resolution of the motion to withdraw.
While Walker‘s federal action was stalled for this reason, Walker‘s state PCRA action was proceeding. Walker‘s newly-appointed PCRA counsel was permitted to file a new amended petition, and between December 1992 and April 1993 the state court heard testimony regarding Walker‘s claims for post-conviction relief. Because there was no transcript of the voir dire that had been conducted for Walker‘s trial, the state court permitted Walker to present testimony regarding the merits of the alleged ineffective assistance/Batson violations. See App. at 101.
Walker testified that during voir dire, allegedly on October 6, 1986, the assistant district attorney who tried the case against him “had a problem with black males,” App. at 102; that the jury ultimately selected was composed of “mainly females,” App. at 107; that he was “very unhappy” about the selection process and complained about the process to his trial counsel “several times,” App. at 107-08; and that his trial counsel told him to “shut up” and declined to object to the prosecutor‘s actions. App. at 108. The State objected to this testimony, in part because Walker had made no offer of proof regarding the number of people on the jury, the number of black jurors, and the number of black individuals who were stricken from the jury. Walker‘s counsel responded that he expected testimony or an affidavit on this issue by Walker‘s trial counsel. However, when Walker‘s trial counsel did testify on
April 21, 1993, he was not questioned on any Batson-related issues.
On June 29, 1993, the state court issued an order denying Walker‘s PCRA claim. The court rejected Walker‘s ineffective assistance/Batson claim, concluding that Walker “failed to sustain his burden of proof on this issue.” Commonwealth v. Walker, Nos. 8601-2553-2575, Memorandum Opinion at 10 (Philadelphia Court of Common Pleas, filed June 29, 1993).
On July 8, 1993, Walker filed an amended federal habeas petition containing approximately thirty-three claims. One of the claims asserted by Walker was “that the makeup of the jury was prejudicial against petitioner.” At a hearing before the district court on July 23, 1993, the State argued that Walker‘s petition did not state a claim for relief, relying upon the testimony and record produced in the PCRA proceeding. Among other things, the State argued that Walker failed to create a record in the PCRA action that would be sufficient to support his ineffective assistance/Batson claim, and asked the federal court to “stay its hand” because the PCRA action, which had concededly been delayed for some time, could “no longer legitimately be called ineffective to protect [Walker‘s] rights.” See App. at 61.
While the issue was pending in the district court, the Pennsylvania Superior Court rejected Walker‘s appeal and, on February 2, 1994, affirmed the denial of relief under the PCRA. The Superior Court held that Walker‘s failure to provide the notes of testimony or a statement pursuant to Pa. R. App. P. 1923
in lieu of a transcript precluded appellate review of the claim. See Commonwealth v. Walker, No. 02523 Philadelphia 1993, Memorandum Opinion at 6 (Pa. Super. Ct., filed February 2, 1994). Walker then filed a petition for allocatur to the Pennsylvania Supreme Court.3
On February 16, 1994, while Walker‘s petition in the Pennsylvania Supreme Court was still pending, the federal district court issued its order denying Walker‘s federal habeas pеtition. With respect to Walker‘s ineffective assistance/Batson claim, the court stated that “[t]here is no record of how many blacks were in the venire, how many were struck by the prosecution and the defense, how many blacks sat on the jury, or how many peremptory challenges the prosecutor used. Petitioner‘s insufficient showing precludes review by this court.” Memorandum & Order of
The district court also commented in another portion of its opinion that:
[P]etitioner did not avail himself of the Pennsylvania Rules of Appellate Procedure that provide an opportunity to reconstruct the record for purposes of appeal. Pa. R. App. Pro. 1923, 1924. Petitioner also failed to supplement the record during the PCRA proceedings, although he had ample opportunity to do so. Because petitioner does not demonstrate cause for failing to develop the record in state proсeedings, he cannot do so for the first time by federal habeas
action. See Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992).
Memorandum & Order of February 16, 1994 at 13. While this portion of the district court‘s opinion did not specifically address Walker‘s ineffective assistance/Batson claim, it appears to have supported the court‘s conclusion regarding that claim.
The district court granted Walker‘s motion for a certificate of probable cause, and this appeal followed. In the appeal, Walker challenges only the district court‘s dismissal of his claim for habeas relief on the grоunds of ineffective assistance of counsel due to trial counsel‘s failure to object to the prosecutor‘s practice of racial discrimination in jury selection.
We have jurisdiction over Walker‘s appeal pursuant to
II.
Discussion
On appeal, Walker concedes that the record before the district court was insufficient to support either a substantive Batson claim or a claim for ineffective assistance based on dеfense counsel‘s failure to raise a Batson claim. He argues, however, that it was unfair for the district court to dismiss his action in light of the State‘s failure to produce any record of the jury selection despite the district court‘s prior order requiring it to do so. Walker contends that the district court should have held an evidentiary hearing on the whereabouts of the record of jury selection, and, if necessary, should have given him an opportunity to reconstruct that record.4
In response, the State contends that the district court‘s decision followed the Supreme Court‘s recent decision in Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), holding that, absent a showing of cause and prejudice, a federal court may not provide a habeas petitioner with an evidentiary hearing where the petitioner had an adequate opportunity to develop the relevant facts in state court proceedings. Id. at 1721. Thus, the State reasons, Walker‘s failure to develop the facts relevant to his ineffective assistance/Batson claim during the PCRA proceeding
precludes the district court from granting him thе opportunity to do so in this habeas proceeding.
Were this the paradigmatic federal habeas proceeding, where the petitioner has fully exhausted state remedies prior to filing a federal habeas petition, the State‘s argument would be indisputable. Walker‘s failure to establish a factual record during the PCRA proceeding would be subject to the Tamayo-Reyes cause and prejudice standard, and his inability to demonstrate cause for his failure to develop the factual record during the PCRA action would therefore suрport the district court‘s decision to reach the merits of
This case does not fit neatly within the Tamayo-Reyes rule because the Court there addressed a habeas petitioner‘s failure to develop a factual record in a post-conviction state proceeding that was exhausted prior to the filing of the federal habeas petition. Id. at 1716-17. In contrast, here the district court concluded that Walker had not demonstrated cause for his failure to develop an adequate state court record to establish his claim by relying, somewhat paradoxicаlly, upon the opportunity presented to Walker at a state proceeding that the district court had excused Walker from exhausting.5 We thus must consider, apparently as a matter of first impression, the proper application of the Tamayo-Reyes rule in these circumstances.
To do so, we return to basic principles. In general, a habeas petition may not be granted “unless it appears that the applicant has exhausted the remedies available in the courts of the State.”
Similarly, Tamayo-Reyes explained that the cause and prejudice rule regarding evidentiary hearings “appropriately accommodate[s] concerns of finality, cоmity, judicial economy, and channeling the resolution of claims into the most appropriate forum.” Tamayo-Reyes, 112 S. Ct. at 1719. The Court also commented that its rule was “fully consistent with and gives meaning to the requirement of exhaustion” by ensuring that factual issues are addressed by the state courts “in the first instance.” Id. at 1720. The exhaustion rule and the Tamayo-
Reyes rule are therefore animated in part by the same concerns: comity to the state courts and ensuring that an adequate factual record is developed in the state courts.
On the other hand, the habeas corpus statute provides that еxhaustion of state remedies may be excused where there is “an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”
Because most habeas petitions filed during the pendency of state proceedings are dismissed for lack of exhaustion, no principles have bеen developed to guide the district court in a habeas proceeding as to reliance
after federal court found inexcusable delay in Pennsylvania state court post-conviction proceeding and permitted habeas petition to proceed, the state court stayed the post-conviction proceeding pending the disposition of the federal case). The issue would nоt have arisen in this case had the district court accepted the State‘s suggestion that it stay all federal proceedings pending the resolution of the state court action once it became apparent that the state PCRA action had been reactivated. As a matter of general practice, we assume that a district court which has excused exhaustion but has not yet embarked upon proceedings of substance will stay its hand once there is reliable evidence that the state action has bеen reactivated. Cf. Picard v. Connor, 404 U.S. 270, 275 (1971) (noting that states generally must be given the opportunity to pass upon and correct alleged violations of their prisoners’ federal rights); see also Burkett, 826 F.2d at 1218 (affirming a district court‘s dismissal for lack of exhaustion where the petitioner‘s state case was “proceeding normally,” but excusing exhaustion where there was no indication that state court would soon dispose of petitioner‘s case).
An examination of the Tamayo-Reyes opinion suggests the appropriate manner to resolve the issue presented in this case. Clearly, the Court wanted to limit a defendant‘s opportunities “to relitigate a conviction.” Tamayo-Reyes, 112 S. Ct. at 1719. More significantly, the Court noted that the cause and prejudice rule regarding evidentiary proceedings “serves the interest of judicial economy” by preventing defendants from using the scarce judicial resources of the federal courts to “duplicate
factfinding” that could have been performed in state court. Id. This focus on judicial economy is consistent with other Supreme Court pronouncements regarding the use of the limited resources of the federal judiciary in habeas cases. See Schlup v. Delo, 115 S. Ct. 851, 864 (1995) (suggesting that review of petitions for habeas corpus requires consideration of the “systemic interests in finality, comity, and conservation of judicial resources“); McCleskey v. Zant, 499 U.S. 467, 491 (1991) (noting that federal collateral litigation places a heavy burden on scarce judicial resources, and threatens the capacity of the system to resolve primary disputes).7
Thus, a decision to apply the Tamayo-Reyes rule should be guided not only by comity and record-creation concerns but also by an interest in encouraging judicial economy and avoiding duplicative procedures in the stаte and federal court systems. See United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973) (record of a then-pending state proceeding should be considered by the district court on remand if the state proceeding was final at the time the district court rendered its decision).
We need not decide in this case what effect should be given to state court findings following a state evidentiary
hearing in which the petitioner did not participate because the federal court excused exhaustion. Walker did participate fully in the state PCRA hearings that occurred after the filing of his habeas petition. At those hearings, Walker was represented by counsel who called various witnesses, including Walker himself, to testify in Walker‘s behalf. Indeed, a review of the transcript of the PCRA proceeding suggests that Walker was given every opportunity to create a record sufficient to establish any constitutional claims. Having availed himself of that opportunity by appearing and presenting evidence, it would be inconsistent with the interests of judicial economy expressed in Tamayo-Reyes and other Supreme Court decisions regarding federal habeas proceedings to give Walker a second evidentiary hearing in federal court.
We recognize that the district court rendered its decision relying upon the opportunity provided by the state PCRA action while a petition for allocatur in that action was still pending in the Pennsylvania Supreme Court.8 Arguably, relying on
a state action that is not yet final poses some risk. Regardless, at oral argument before this court, the parties agreed that Walker‘s petition for allocatur was denied by the Pennsylvania Supreme Court on November 30, 1994, while this appeal was pending. Thus, the district court‘s reliancе upon a then-pending state proceeding in reaching its decision cannot now provide a basis for the reversal of its decision.
We therefore conclude that the district court‘s dismissal of Walker‘s ineffective assistance/Batson claim was proper. The state court record is insufficient to establish the claim, and, having fully participated in the PCRA action, Walker is unable to demonstrate cause for his failure to reconstruct that record in state court, nor is there any suggestion that a miscarriage of justice wоuld result from a failure to hold an evidentiary hearing on the issue in the district court. Tamayo-Reyes, 112 S.Ct. at 1721.
(..continued)
steps to reduce the delays in reviewing petitions for allocatur by appointing a committee to address the problem and adopting new internal operating procedures. See Supreme Court Internal Operating Procedures, Pennsylvania Law Weekly, Nov. 7, 1994, at 12; see also Ralph J. Cappy et al., Allocatur Review Must Be Perceived As Objective, Pennsylvania Law Weekly, Nov. 21, 1994, at 6 (first part of Final Report and Recommendation of the Allocatur Study Committee of the State Supreme Court); Ralph J. Cappy et al., High Court Needs Central Staff, Funding, Pennsylvania Law Weekly, Nov. 28, 1994, at 6 (second part of Final Report and Recommendations of the Allocatur Study Committee of the State Supreme Court).
III.
For the foregoing reasons, we will affirm the district court‘s order of February 16, 1994, denying Walker‘s petition for a writ of habeas corpus.
SLOVITER, Chief Judge.