Opinion
No. 02-6269.
April 30, 2004
MEMORANDUM
Presently before the Court is petitioner's motion for reconsideration of this Court's memorandum-order, dated February 17, 2004, which dismissed without prejudice for failure to exhaust available state remedies petitioner's claim for habeas relief. In that memorandum-order, found at Green v. Dragovich, No. 02-6269, 2004 U.S. Dist. LEXIS 2454 (E.D. Pa. Feb. 17, 2004), the Court concluded that, despite petitioner's arguments to the contrary, inordinate delay in the state processes did not excuse the exhaustion requirement found in 28 U.S.C. § 2254(b) because evidence of recent movement in the state appellate processes indicated that the case "now appears to be proceeding normally."Id. at *25 (quoting Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987)).
In the instant motion, petitioner's counsel contends that petitioner's due process claim, asserting that delays in the state processes violated petitioner's right to due process, satisfies the exhaustion requirement. Thus, petitioner requests that this Court revisit the exhaustion issue and consider petitioner's due process claim on the merits. In support, the petitioner relies on Coe v. Thurman, 922 F.2d 528 (9th Cir. 1991) and Shelton v. Heard, 696 F.2d 1127 (5th Cir. 1983) (per curiam) for the proposition that due process claims brought by state prisoners asserting delay should be reviewed on the merits by federal courts without the need to determine that the claim has been exhausted at the state level. The Court finds the argument to lack merit.
Authority from the Third Circuit counsels that, as with any other claim, due process claims alleging inordinate delay in state processes are to be analyzed to determine whether they have been exhausted and, if unexhausted, whether exhaustion should be excused by the federal court. See 28 U.S.C. § 2254(b)(1)(B)(ii). Turning again to Burkett, the Third Circuit in that case dismissed petitioner's claim for relief in the no. 284 conviction only after examining the issue of exhaustion, notwithstanding the fact that the court construed the petition to assert a due process claim for delays in the state processes. 826 F.2d at 1212, 1214-17. Furthermore, with respect to conviction
nos. 140/141 and 161 in Burkett, the court proceeded to hear the due process and speedy trial claims on the merits after "[h]aving found that [it had] jurisdiction over [the claims] because a timely notice of appeal has been filed and that state remedies have been sufficiently exhausted." Id. at 1219 (emphasis added).
Similarly, in Hankins v. Fulcomer, 941 F.2d 246 (3d Cir. 1991), the Third Circuit heard petitioner's claims asserting due process and speedy trial violations based on delay in the state processes and petitioner's claim asserting ineffective assistance of counsel only after it examined and analyzed the issue of exhaustion and determined that the exhaustion requirement found in 28 U.S.C. § 2254(b) should be excused under the circumstances presented. The Third Circuit's discussion about whether or not to excuse the exhaustion requirement made no distinction between the due process and speedy trial claims presented and the ineffective assistance of counsel claim. Id. at 249-50.
As for the cases from other circuits cited by the petitioner, both Coe and Shelton are factually distinguishable from the instant case because both of these cases involved continuing and ongoing delays in the state appellate processes which, under the circumstances of each case, rendered the state processes ineffective to protect the rights of the petitioner.
In Shelton, because petitioner's case "languished" in the Texas courts following the filing of a notice of appeal, the court found "the appellate remedy ineffective for [petitioner's] case." 696 F.2d at 1128-29.
In Coe, petitioner's appeal was not heard at the appellate level because of a lengthy delay in having the trial transcript completed and subsequent delays in the filing of appellate briefs by petitioner's counsel. 922 F.2d at 529. At the time of his federal habeas appeal, petitioner was "[s]till frustrated by the lack of action on his appeal." Id. Finding little sense in insisting that the petitioner exhaust his state remedies when the essence of his claim was his inability to do so, the Coe court excused the exhaustion requirement and entertained petitioner's due process claim on the merits. Id. at 530-31.
By contrast here, the Court found in its previous memorandum-order that, while there was inordinate delay at the trial level following petitioner's conviction and final disposition of his post-trial motions, subsequent activity by the trial judge and the Superior Court of Pennsylvania indicated that the case "now appears to be proceeding normally." Green, 2004 U.S. Dist. LEXIS 2454, at *25 (quoting Burkett, 826 F.2d 1218). Having found, therefore, that the state processes are not presently ineffective ("[the processes] appears to be proceeding normally"), the Court will not excuse the exhaustion requirement for any of petitioner's claims.
Petitioner also relies on dicta in Coe which may be broadly interpreted to suggest that a due process claim asserting delay is per se excused from the exhaustion requirement. The Court rejects this suggestion. A per se rule excusing exhaustion for due process claims would abrogate the mandate of 28 U.S.C. § 2254(b), which provides that exhaustion is required unless "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(ii).
As there is no intervening change in the controlling law, no new evidence presented, nor a clear error of law or fact presented in the motion, the Court will stand by its previous order. Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
An appropriate order follows.