Opinion
CIVIL ACTION NO. 02-7474
March 11, 2004
MEMORANDUM AND ORDER
Richard Washington ("the petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 18, 1995, the petitioner was arrested on charges that he kidnaped Asha Woodall and shot Anthony Carney on February 17, 1994. These crimes took place in Philadelphia County. Mr. Carney died of his wounds while in the hospital on February 23, 1994. In July and August 1997, the petitioner faced his first trial for these charges. On August 6, 1997, a mistrial was declared.
All of the information concerning the state procedural history has been derived from the parties' briefs because the state court has not produced the state court record.
The petitioner was tried again in December 1998. This time, the jury convicted him on one count of criminal conspiracy, one count of possession of an instrument of crime and one count of robbery of a motor vehicle. The petitioner was acquitted on the charge of first degree murder, a separate count of criminal conspiracy, one count of making terroristic threats, one count of robbery and one count of burglary. The jury was unable to reach a verdict on the lesser degrees of murder and the kidnaping charge.
On February 19, 1999, the petitioner was sentenced to a total sentence of five to ten years on the three charges for which he had been convicted. On February 24, 1999, the petitioner filed a post-sentence motion regarding sentencing issues; this motion was denied because the remaining charges had not yet been resolved. The petitioner then filed a notice of appeal on March 10, 1999; the appeal has not been processed, ostensibly because all of the petitioner's charges have not yet been resolved.
The petitioner then awaited retrial for over four years. During that time, on December 13, 2001, he filed a petition for a writ of habeas corpus in the Superior Court of Pennsylvania. On January 30, 2002, the Superior Court denied the petition. On February 19, 2002, the petitioner filed a habeas petition in this court. In this court, the petitioner claimed that he was being denied his rights to a speedy trial, to due process and to an appeal. While the habeas petition was pending in this court, the petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Pennsylvania on March 12, 2002. On May 14, 2002, I recommended that the federal habeas petition be summarily dismissed for lack of exhaustion because the petitioner had a state habeas petition pending in the Supreme Court of Pennsylvania. On June 19, 2002, the Honorable Anita B. Brody approved and adopted my recommendation and summarily dismissed the federal habeas petition. Unbeknownst to Judge Brody, the Supreme Court of Pennsylvania had already dismissed the state habeas petition on June 4, 2002.
The petitioner filed the presently pending federal habeas petition on September 25, 2002. At the time of filing his pro se habeas petition, the petitioner still had not been tried on the remaining Philadelphia County charges. Judge Brody then referred the case to me on November 8, 2002. On November 13, 2002, Judge Brody appointed Jules Epstein, Esquire to represent the petitioner. On January 8, 2003, Judge Brody appointed Hope Lefeber, Esquire as substitute counsel and allowed Mr. Epstein to withdraw. Up to that time, the petitioner still had not been retried on the remaining Philadelphia County charges.
In February 2003, the petitioner was retried on the remaining Philadelphia County charges. Again, a mistrial was the result. On August 11, 2003, the petitioner filed a pro se Post Conviction Relief Act ("PCRA") petition in the Court of Common Pleas for Philadelphia County. In the PCRA petition, the petitioner argued that he has been denied his right to appeal the charges on which he was convicted for over four and one-half years.
On October 16, 2003, Ms. Lefeber filed an amended petition on behalf of the petitioner and, in it, she clarified the petitioner's claims to assert a violation of the Sixth Amendment right to a speedy trial and the due process right to a speedy appeal. In the amended petition, she also noted that the petitioner was scheduled to be retried again in November 2003.
The petitioner was not retried in November 2003. Instead, his trial has been continued and it is presently set for June 2004. As for the PCRA petition, there was to be a hearing in late January 2004. The parties have not stated whether that occurred nor have they mentioned the present status of the PCRA petition.
On February 19, 2004, the petitioner sent the court a letter to which he attached a copy of the motion to dismiss the pending charges which had been filed in the trial court by the petitioner's trial counsel, Charles P. Mirarchi, III on January 30, 2004. That motion seeks to dismiss the criminal charges still pending against the petitioner on the ground that the fourth retrial of the petitioner would violate the Sixth Amendment's Double Jeopardy clause. A hearing concerning the motion is scheduled for March 12, 2004.
Both parties have briefed the question whether the petitioner has exhausted his state remedies with respect to his speedy trial claim. While the District Attorney for Philadelphia County has failed to argue that the petitioner has not exhausted his speedy appeal claim, Ms. Lefeber has raised an inordinate delay argument which could excuse exhaustion with respect to the petitioner's speedy trial and speedy appeal claims. However, the parties have provided few documents to support their assertions concerning what claims the petitioner has raised in the state courts and the Court of Common Pleas for Philadelphia County has refused to produce the state court record because the petitioner awaits his retrial.
The court finds that the following documents are important to the proper determination of the exhaustion question which has arisen in this case and the District Attorney will be ordered to produce them: (1) the post sentence motion the petitioner filed on or about February 24, 1999; (2) any opinions or orders which address the post sentence motion; (3) the notice of appeal the petitioner filed on or about March 10, 1999; (4) any opinions or orders which address the notice of appeal; (5) the document the petitioner filed in the Superior Court of Pennsylvania on or about December 13, 2001; (6) the opinion or order the Superior Court subsequently entered disposing of the document the petitioner had filed on or about December 13, 2001; (7) the document the petitioner filed in the Supreme Court of Pennsylvania on or about March 12, 2002; (8) the opinion or order the Supreme Court subsequently entered disposing of the document the petitioner had filed on or about March 12, 2002; (9) the PCRA petition the petitioner filed on or about August 8, 2003; (10) any response the District Attorney filed concerning the PCRA petition; (11) any opinions or orders of the Court of Common Pleas for Philadelphia County which address the PCRA petition; (12) any response the District Attorney has filed to the motion the petitioner filed in the trial court on or about January 30, 2004 in order to dismiss his pending charges; (13) any opinions or orders of the trial court which address the petitioner's motion to dismiss his pending charges; and (14) the complete docket for the petitioner's case maintained by the Court of Common Pleas for Philadelphia County.
An implementing order follows.
ORDER
AND NOW, this day of March, 2004, for the reasons explained in the attached Memorandum, it is hereby ORDERED that, on or before March 22, 2004, the District Attorney for Philadelphia County shall produce the following documents: (1) the post sentence motion the petitioner filed on or about February 24, 1999; (2) any opinions or orders which address the post sentence motion; (3) the notice of appeal the petitioner filed on or about March 10, 1999; (4) any opinions or orders which address the notice of appeal; (5) the document the petitioner filed in the Superior Court of Pennsylvania on or about December 13, 2001; (6) the opinion or order the Superior Court subsequently entered disposing of the document the petitioner had filed on or about December 13, 2001; (7) the document the petitioner filed in the Supreme Court of Pennsylvania on or about March 12, 2002; (8) the opinion or order the Supreme Court subsequently entered disposing of the document the petitioner had filed on or about March 12, 2002; (9) the PCRA petition the petitioner filed on or about August 8, 2003; (10) any response the District Attorney filed concerning the PCRA petition; (11) any opinions or orders of the Court of Common Pleas for Philadelphia County which address the PCRA petition; (12) any response the District Attorney has filed to the motion the petitioner filed in the trial court on or about January 30, 2004 in order to dismiss his pending charges; (13) any opinions or orders of the trial court which address the petitioner's motion to dismiss his pending charges; and (14) the complete docket for the petitioner's case maintained by the Court of Common Pleas for Philadelphia County.It is further ORDERED that the District Attorney shall have the ongoing duty to provide documents that relate to the ones the court has identified as the documents are filed by the petitioner, the District Attorney or the state courts.