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IN RE KRAVITZ

March 7, 1979

In re Ethel KRAVITZ


The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

Presently before the Court is petitioner's motion for relief under Federal Rule of Civil Procedure 60(b)(6) from a 1965 judgment dismissing her habeas corpus action. In this Court's memorandum and order of August 2, 1978, I concluded that Rule 60(b)(6) applied in a habeas corpus action filed prior to February 1, 1977, and that the first requirement for Rule 60(b)(6) relief, "exceptional circumstances," had been demonstrated. With regard to the second requirement, the question of whether the motion was filed within a reasonable period of time, an evidentiary hearing was scheduled and petitioner and respondent were given an opportunity to present evidence. The hearing was held August 28, 1978. *fn1" Proposed findings of fact and conclusions of law, along with supporting memoranda, were filed by the parties and the matter became ripe for determination on November 21, 1978. *fn2"

 As noted in earlier opinions, the issue of the reasonableness of the delay in filing this motion for Rule 60(b)(6) relief involved two periods of time, one from 1966 to 1968 and the other from 1970 to 1975. Although the court has summarized the background facts of this case previously, another brief recitation will assist in illuminating the significance of both periods and in judging the reasonableness of petitioner's actions.

 Petitioner was convicted of the 1958 murder of her husband by a Montgomery County jury in 1959. Her appeals were unsuccessful and in 1965, while still incarcerated, she filed this federal habeas corpus action. On August 25, 1965, this court, per Judge Follmer, denied the habeas corpus petition, concluding (1) that petitioner's contentions were not supported factually by the state court record and the record of the habeas corpus hearing; and (2) that, with respect to the remaining ground of the petition, she had failed to exhaust her state court remedies. The Court of Appeals for the Third Circuit affirmed the 1965 decision in March, 1966, holding, Inter alia, that petitioner had failed to exhaust state remedies with regard to the contention that certain of her statements to prosecuting authorities had been involuntarily obtained. See In re Kravitz, 358 F.2d 734 (1966) (per curiam).

 Under these rulings, petitioner was then obligated to file for post-conviction relief in the state courts. Obviously, a motion for relief from judgment in this court would have been inappropriate at that time since the basis for such a motion, i. e. the ultimate refusal of state courts to consider her post-conviction petition, was then unknown. Nevertheless, the Court will examine her actions in filing for state post-conviction relief in order to determine the reasonableness of the delay in presenting the motion now before the Court. As will be discussed in more detail infra, the state post-conviction petition was not filed until June 1968, slightly more than two years after the Court of Appeals affirmance. The final decision on the state post-conviction petition was rendered in 1970, with the Pennsylvania Supreme Court concluding that the issue of the admissibility of the alleged statements was a matter that had been "waived" under state law. See Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970). No additional legal action attacking her conviction was undertaken until September 1975, approximately four and one-half years later.

 The crucial question here is not the precise nature of the legal actions taken, since use of Rule 60(b)(6) in this context is quite novel, but rather whether the delays in taking further formal legal action of some sort were reasonable. *fn3" The action taken in 1975 was the filing of a new habeas corpus petition in the United States District Court for the Eastern District of Pennsylvania. This new petition was dismissed by the District Court, and that dismissal was affirmed by the Court of Appeals on February 23, 1977. On May 4, 1977, about two months later, a motion for 60(b)(6) relief was filed in this Court by the petitioner.

 PERIOD 1966 to 1968

 I am satisfied that the two-year period of delay from petitioner's release in June, 1966 on parole to the filing on June 7, 1968 of a state post-conviction petition was reasonable. After her release in June of 1966, petitioner relocated in New York and was earning about $ 80 per week as a sales clerk. (Notes of Aug. 28 Hearing Testimony at 107, hereafter "N.T."). Paul Gernert, Chairman of the parole board, testified that the board would not, and did not, process her parole application while litigation on her conviction was pending. (N.T. 95). The accuracy of this statement was borne out by the fact that the adverse decision of the Court of Appeals was rendered in March 1966 and petitioner was promptly released on parole in June, 1966, after the representation by petitioner's counsel that no further action was then contemplated. (Exhibits 25 & 26). At least in petitioner's mind, the statements made by Mr. Gernert to her when her application was being considered and the surrounding circumstances persuaded her that pursuit of relief prior to the expiration of her parole and while on parole release might endanger her parole status. (N.T. 65-66). Nevertheless, notwithstanding her difficult financial situation, her relocation to another state, and the perceived threat of parole revocation, petitioner sought and obtained the counsel of Attorney F. Lee Bailey in early 1967, some six months after her release from confinement. (N.T. 4).

 A representation agreement between Attorney Bailey and petitioner was entered into in January, 1967. (Exhibit 5). Shortly thereafter, pursuant to that agreement, petitioner took a polygraph test and performed to Attorney Bailey's apparent satisfaction. (N.T. 10; Exhibit 4). On March 21, 1967, petitioner accepted Mr. Bailey's terms of representation, wherein she agreed to provide Mr. Bailey with promissory notes to cover legal fees. (Exhibits 5 & 7). There the matter rested in Mr. Bailey's hands for a period of time. He testified at the hearing in this court to the press of other business, noting that he undertook the case with the understanding that it would not be given top priority because of her lack of financial resources. (N.T. 10). At petitioner's request, her neighbor and friend, Attorney Leo Vernon, visited Bailey in late 1967 to press him to act more expeditiously. (N.T. 27). Attorney Bailey's response was merely that he would do his best. The petitioner also wrote a letter to Mr. Bailey on January 21, 1968, in which she expressed her concern that "this long delay may very well (be) prejudicing my case." The evidence at the hearing was that Mr. Bailey hired an associate, whom he described as the only other trial attorney in his office. The associate familiarized himself with Pennsylvania post-conviction procedures, and researched the merits of petitioner's case. In June 1968, some 15 months after being retained, Mr. Bailey filed the required post-conviction petition attacking her conviction and seeking to exhaust state remedies as directed. (N.T. 10-11).

 During this two-year period, the actions of petitioner were reasonable. Although lacking adequate financial resources, petitioner obtained counsel within a reasonable period and, to the extent she could, pressed counsel to take action as quickly as possible. Attorney Bailey, who enjoys an excellent national reputation as a trial attorney, admittedly did not take action as promptly as possible. While the delay on Mr. Bailey's part of fifteen months could not be completely accounted for by the time necessary to investigate, research, and draft the state court petition, a delay of eighteen months before action was taken by counsel was excused without comment in United States v. Cariola, 323 F.2d 180 (3d Cir. 1963). *fn4" From the testimony at trial, described Supra, it is apparent that Mr. Bailey did not handle the petitioner's case as rapidly as it could have been because of his extensive work load and the limited number of other attorneys available to assist him and because of the financial risk associated with petitioner's case and the recovery of his fees. On her part, petitioner pursued the matter as aggressively as she could under the circumstances, given that her financial resources were limited, and her case difficult. The two-year delay was reasonable under the circumstances.

 PERIOD 1970 to 1975

 I also conclude that the four and one-half year delay in filing formal legal action after the 1970 decision on petitioner's post-conviction action was reasonable under the circumstances. On October 20, 1970, the Pennsylvania Supreme Court rendered an adverse decision on petitioner's Post-Conviction Hearing Act petition, the court having concluded that petitioner had waived or finally litigated the issue that is now before this court. *fn5" On November 11, 1970, petitioner terminated her relationship with the attorney who had prosecuted the action in her behalf, Attorney F. Lee Bailey. (Exhibit 15).

 At this point it was petitioner's responsibility to obtain new counsel if she desired to continue to seek legal relief. She again approached Attorney Leo Vernon and requested that he assist her in this regard. Attorney Vernon approached Emmett Fitzpatrick, a prominent Philadelphia attorney who subsequently became District Attorney of Philadelphia. (N.T. 29-30). Attorney Fitzpatrick had previously acted as local counsel for F. Lee Bailey, and had been peripherally involved in the state post-conviction petition. Mr. Fitzpatrick agreed to take the case, and met with Mr. Vernon on several occasions, but found it necessary some months later, in May 1971, to apologize for the pace at which he was proceeding, attributing the delay to the illness of an associate. (Exhibit 17). A new habeas corpus petition prepared by Mr. Fitzpatrick was reviewed by Attorney Vernon in July of 1971. Although he apparently was not experienced in criminal matters, Mr. Vernon believed the petition to be deficient in certain respects and advised petitioner to seek other counsel to obtain a more satisfactory document. (N.T. 33-35). She was, during all this period of time, without financial resources with which to pay attorney's fees. And, of course, her case was a difficult one. After consultation with petitioner and with her approval, Attorney Vernon entered into discussions with law professors at Yale University and the University of Pennsylvania in the fall of 1971. (N.T. 35-37). Students at these law schools undertook legal research as an academic exercise for their professors. In late 1971 and early 1972, Vernon approached other attorneys in the Philadelphia area seeking someone to act as counsel for petitioner. The primary barrier to retaining these attorneys was her inability to pay fees. (N.T. 39-41).

 In April 1972, Attorney Harold Cramer, who is petitioner's present counsel, was approached for help. He was, at that time, Chancellor of the Philadelphia Bar Association, a position which, along with his normal responsibilities at his law firm, created great demands on his time. He ...


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