Reargued En Banc June 21, 1972.
Hastie, Chief Judge, and Kalodner and Aldisert, Circuit Judges. On Reargument: Seitz, Chief Judge, and Kalodner, Hastie, Van Dusen, Adams, Gibbons, Max Rosenn, James Rosen and Hunter, Circuit Judges. Adams, Circuit Judge (concurring and dissenting). Kalodner, Circuit Judge (dissenting in part).
This is an appeal from the denial of a petition for habeas corpus by a prisoner of the Commonwealth of Pennsylvania. In 1954 the appellant Johnson pleaded guilty to an indictment charging him with murder. Under Pennsylvania law following such a plea a degree of guilt hearing is held. Pa.Stat.Ann. tit. 18, § 4701 (1963); Johnson is confined under a judgment of the degree of guilt hearing court finding him guilty of first degree murder. He could have challenged on appeal the sufficiency of the evidence supporting this degree of guilt determination. He did not appeal. The federal habeas corpus petition alleges that he was not advised of his right to appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
Once in prison Johnson filed with the Court of Oyer and Terminer of Wyoming County a series of petitions for habeas corpus and for other relief.*fn1 Germane to this case is the decision in a Pennsylvania Post Conviction Hearing Act proceeding that Johnson was foreclosed by waiver from litigating his Douglas v. California claim, and that in any event the failure to advise him of his appeal rights was not prejudicial.
In 1967 after having filed nine previous habeas corpus petitions Johnson filed a petition for post conviction relief which alleged a number of constitutional infirmities in the judgment under which he was confined. His Douglas claim was not alleged. He was represented by counsel in the 1967 proceeding, and an appeal was taken. Thereafter, pro se, he filed a habeas corpus petition in the Wyoming County Court alleging the Douglas claim for the first time. This petition was dismissed without a hearing on the ground that the pendency of the appeal deprived the County Court of jurisdiction. At Johnson's request counsel was appointed and an appeal taken from the dismissal. This appeal was consolidated with the earlier post conviction appeal pending in the Supreme Court of Pennsylvania. All of Johnson's contentions in this counselled consolidated appeal were rejected except the Douglas claim. On that claim it reversed the County Court decision that it lacked jurisdiction, and remanded for a hearing. Justice Roberts wrote:
"We now turn to Johnson's second appeal which comes to us following the denial without hearing, of a petition for relief under the Post Conviction Hearing Act wherein appellant maintained that he was never told of the right to appeal or the right to free appellate counsel if indigent. . . . [A] petition under the Post Conviction Hearing Act must not be dismissed without an evidentiary hearing if it alleges facts which, if true, would entitle petitioner to relief. . . ."
"However, even though appellant did allege facts which if proven would have entitled him to relief, the court below could still have denied Johnson an evidentiary hearing if it found that the right to litigate the issues raised in the petition had been waived under section 4 of the Post Conviction Hearing Act. Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967). Moreover, had the court below found such a waiver by virtue of the fact that appellant's first Post Conviction Hearing Act petition failed to raise the Douglas issue even though Johnson had counsel and the petition long post-dated the Douglas decision, we would have no difficulty affirming the denial of relief." 431 Pa. 522, 531-533, 246 A.2d 345, 351-352 (1968).
To put the quoted extract from Justice Roberts' opinion in context it is necessary to refer to Section 4 of the Pennsylvania Post Conviction Hearing Act, Pa.Stat.Ann. tit. 19, § 1181 et seq. (1954), which provides:
"(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
Although the "presumption" subsection contains no such language it has been construed as applicable only if the defendant was represented by counsel at the time the default occurred. Commonwealth v. Linde, 432 Pa. 324, 248 A.2d 235, 236 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440, 442 (1968); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968).
The effect of the remand by the Supreme Court of Pennsylvania, then, was to direct that a hearing be held on the issue of waiver of the Douglas claim by failing to raise it in Johnson's first counselled Post Conviction Hearing Act petition in 1967. Upon the remand the County Court, as best we can tell from the available records, took no testimony, but heard argument in which Johnson's counsel made this offer of proof:
"First, by Mr. Johnson, that he was not advised of his Douglas, or his appellate rights by post conviction counsel at the time of his post conviction hearing. And second, by Mr. DeWitt [counsel for Johnson in the Post Conviction Hearing Act proceeding] that in arguing and in advising, I should reverse the procedure there, in advising counsel [sic] concerning his post conviction petition and arguing it before the Supreme Court, this fact was not raised. He was not advised by trial counsel of his right to appeal. This issue was not pressed by his post conviction hearing counsel."
Apparently this offer of proof was accepted by the County Court in lieu of testimony, for immediately thereafter the Court ruled:
"We find as a fact that the defendant, the petitioner, has failed to prove the existence of extraordinary circumstances justifying his failure to take a direct appeal. The only fact he asserts to sustain his present petition to direct appeal is that counsel failed to advise him of his right to direct appeal. The defendant stands convicted of murder upon his plea of guilty thereto, and the court found the degree of guilt to be murder in the first degree, and fixed the penalty of life imprisonment. At the time that the Court found the defendant guilty and fixed this penalty, the defendant had right of direct appeal which could have raised three issues only: (1) The jurisdiction of the Court, and in this case since the Court of Oyer & Terminer of Wyoming County, tried the case, imposed the penalty, there can be no dispute on that ground; (2) Validity of the defendant's plea of guilty and this issue has already been passed upon by the Supreme Court of Pennsylvania; and (3) Validity of the sentence and since the defendant was found guilty of murder in the first degree and was sentenced to life imprisonment, this being the lesser of the two penalties imposed by the statute, the defendant's direct appeal to the Supreme Court would have been of no avail.
Our duty at this point is to determine whether or not any extraordinary circumstances have been proven before this Court or offered to be proven before this Court, in support of the present post conviction petition. Namely, that the defendant didn't exercise his right of direct appeal because he wasn't advised by counsel of right of direct appeal, and what we now decide is that the failure of counsel to advise the defendant of the only useless rights, was not such an extraordinary circumstance as would void the charge made and leveled by the Commonwealth, that the defendant waived his right to raise this issue, by failure to assert it in an earlier post conviction petition."
This somewhat ambiguous pronouncement probably decides (1) that the Douglas violation was harmless since there were no grounds on which Johnson could have appealed, and alternatively (2) that by failing to assert the Douglas claim in his first counselled Post Conviction Hearing Act petition Johnson had waived it.
No appeal was taken from this decision. Johnson did, however, file the federal habeas corpus petition now before us. The district court assumed that the Douglas claim might be meritorious. It denied relief on the ground that the questions which could have been asserted on direct appeal had been litigated in collateral proceedings and that, therefore, appellant had not been prejudiced by the loss of a direct appeal. The Commonwealth concedes that this equation of state post conviction proceedings with state direct appeal was error.*fn2 When the case was before a panel of this court the Commonwealth took the position that despite the erroneous basis of decision the order of the district court should be affirmed because as the County Court has held, Johnson waived his Douglas claim.
The panel decision recognized that the County Court waiver determination as a proposed bar to federal habeas corpus was inconsistent with federal waiver standards. See Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). It directed a reversal of the judgment denying the writ and a remand for a federal hearing as to which the omission of the Douglas claim in the first counselled Post Conviction Hearing Act proceeding was a deliberate bypass of an available state procedure.
The appellee petitioned for rehearing by the full court. Before the court en banc appellee advanced several positions different from those taken when the appeal was before the original panel. It was conceded that the decision of the Wyoming County Court, if it applied Section 4(c) of the Pennsylvania Post Conviction Hearing Act in a manner inconsistent with the federal waiver standard announced in Fay v. Noia, supra, was wrong as a matter of Pennsylvania law. According to the appellee the proper construction of Section 4(c), approved by the Supreme Court of Pennsylvania, is that it merely places upon the petitioner the burden of pleading and of proving that his failure to raise an issue in a prior proceeding was not a knowing and understanding bypass. See Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521, 526 (1972); Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971); Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968); Commonwealth v. Stevens, 429 Pa. 593, 240 A.2d 536 (1968). Properly interpreted, in other words, the waiver standard of Section 4 of the Pennsylvania Post Conviction Hearing Act is consistent with Fay v. Noia for while the statute uses the word presumption it actually deals only with burden of pleading and burden of proof. It was also conceded that Johnson's petition to the Wyoming County Court alleging the Douglas claim was sufficient to require the holding of an evidentiary hearing at which he could offer testimony in support of his claim that he had not waived that claim. The failure to hold such a hearing was error. The county court also erred, according to appellee, in holding that there were no issues which could have been appealed and that the Douglas violation thus was not prejudicial.
But instead of appealing the erroneous decision of the Wyoming County Court Johnson petitioned for federal habeas corpus relief. Technically that petition probably should have been dismissed at once because there was an available and unexhausted state court remedy of direct appeal from that decision. 28 U.S.C. § 2254(b). We are advised by appellee that even if untimely such an appeal would have been permitted nunc pro tunc.
Counsel for the Commonwealth proposes that in the interest of judicial economy the needless step of an appeal nunc pro tunc to correct the conceded error of the Wyoming County Court in dismissing Johnson's petition without an evidentiary hearing should be avoided. He suggests that the Wyoming County Court will now afford Johnson a hearing as to whether in his first counselled Post Conviction Hearing Act proceeding he had knowingly and deliberately waived his Douglas claim. If that court should decide the waiver issue in Johnson's favor, as now seems likely, and if in fact he was not given timely advice as to his appeal rights, the Pennsylvania courts will, we are informed, afford Johnson an appeal from the degree of guilt determination at this time.
It would appear, then, that there may be an available and unexhausted state remedy of direct appeal. Under the circumstances it is appropriate to withhold federal habeas corpus relief. The case will be remanded to the district court for the entry of an order affording to the Commonwealth reasonable time, to be fixed by the district court, within which to bring on for hearing before an appropriate state court Johnson's petition alleging that he was not advised of his appeal rights and that his failure to set forth this claim in his counselled Post Conviction Hearing Act proceeding was not a knowing and deliberate bypass. The district court should, however, retain jurisdiction over the petition so that if at the expiration of the time period so fixed the Commonwealth has not afforded Johnson such a hearing, the district court can then hold a federal hearing on the waiver issue and on any other issues which after the resolution of that issue may remain for decision. See, e.g., Douglas v. Green, 363 U.S. 192, 80 S. Ct. 1048, 4 L. Ed. 2d 1142 (1959).
Judge Adams' concurring and dissenting opinion suggests that because this circuit has not yet decided whether notice of the right to appeal from a state court conviction is a prerequisite for the effective waiver of appeal rights recognized in Douglas v. California, supra,*fn3 the federal court somehow lacked habeas corpus jurisdiction, and should not now, as we have ordered, retain jurisdiction over the petition pending the decision by the Pennsylvania courts of the waiver issue. This is too narrow a view of the habeas corpus power. The statute confers on the district court the power to act judicially in the matter, and we have recognized a broad authority to regulate the manner in which and the time when that power shall be exercised even prior to a final hearing and decision on the merits. See Johnston v. Marsh, 227 F.2d 528, 530 (3d Cir. 1955). That case recognizes our power to release a petitioner on bail pending a hearing; a fortiori we can leave the petitioner in state custody but retain jurisdiction when we postpone a hearing. Deference to an available state court remedy does not imply powerlessness to afford the petitioner a prompt hearing when by reason of delay the state process may prove to be ineffective to protect the rights of the prisoner. 28 U.S.C. § 2254(b); Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, ...