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IN RE KRAVITZ

June 5, 1979

In re Ethel KRAVITZ.


The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

Petitioner, Ethel Kravitz, was convicted of the murder of her husband by a jury in Montgomery County, Pennsylvania in 1958. In this habeas corpus proceeding she contends that her Fifth Amendment privilege against self-incrimination was violated when certain inculpatory statements made to the police in the absence of counsel were admitted into evidence at her trial. Presently before the court is respondent's motion to dismiss the habeas corpus petition on the ground of waiver. *fn1" Respondent bases this motion on the Pennsylvania Supreme Court decision that imposed upon petitioner a procedural default under section 4 of the Pennsylvania Post Conviction Hearing Act *fn2" for her failure to timely challenge the admissibility of the statements that she now claims were the product of police coercion. *fn3" See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). This holding, argues respondent, constitutes both an "adequate and independent" state procedural ground, and a finding, to which this court should defer, that petitioner did not have "cause" for her failure to timely raise the voluntariness issue and did not suffer "actual prejudice" as a result of such failure. Respondent asserts that under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), petitioner has thus "waived" her right to seek federal habeas relief.

 In rebuttal, petitioner contends that the waiver ruling of the Pennsylvania Supreme Court rested upon a statutory presumption and, therefore, cannot be treated by this court as a conclusive factual finding that petitioner's failure to raise the issue at her trial or on direct appeal was without cause. *fn4" Petitioner states that if given the opportunity she will establish cause for her failure to timely raise the issue and will also show actual prejudice resulting from the admission into evidence of statements made to police officers.

 The parties' respective arguments focus on the question of what weight should be accorded the finding of waiver by the state's highest appellate court. By isolating on this issue the parties have not addressed a number of federal waiver-related problems spawned simply by developments in federal and Pennsylvania law since petitioner's conviction in 1958. These problems may for analytical purposes be grouped into two categories: (1) those that concern the adequacy of the procedural ground on which the Pennsylvania Supreme Court based its decision not to consider the merits of petitioner's voluntariness claim; *fn5" and (2) those that deal with the proper standard "deliberate bypass," Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), or "cause and prejudice," Wainwright v. Sykes, supra, by which to determine whether an adequate nonfederal ground foreclosing state court review of the merits of the federal claim also precludes federal habeas review. *fn6"

 These are weighty issues that should not be considered without the benefit of the parties' respective views. Allowance for time to submit briefs now, however, would only needlessly delay the resolution of this already protracted litigation. I believe that the present record is sufficiently developed to rule that the state waiver decision is not determinative in a federal habeas proceeding on either the question of deliberate bypass of an available state corrective process or of cause for, and prejudice resulting from, a state procedural default. Thus, were I to find that the state court's refusal to entertain the merits of petitioner's claim rested upon an adequate procedural ground, a determination of deliberate bypass or cause and prejudice would still have to be made and this finding could not be made in the context of this case without an evidentiary hearing. Cf. Humphrey v. Cady, 405 U.S. 504, 517, 92 S. Ct. 1048, 1056, 31 L. Ed. 2d 394 (1972).

 It would appear that the interests of justice and economy of judicial resources would best be served by combining a federal "waiver" hearing with a hearing on the merits of petitioner's voluntariness claim. *fn7" See Opie v. Meacham, 419 F.2d 465, 466 (10th Cir. 1969), cert. denied, 399 U.S. 927, 90 S. Ct. 2239, 26 L. Ed. 2d 793 (1970); Meyer and Yackle, Collateral Challenges to Criminal Convictions, 21 Kan.L.Rev. 259, 291-94 (1973). Accordingly, a joint hearing on the issue of waiver and the merits of petitioner's claim will be conducted. At the conclusion of this hearing a briefing schedule will be established for the parties to address the waiver-related issues identified in this memorandum as well as the merits of petitioner's substantive claim.

 II.

 Petitioner's husband was found dead in the marital bedroom of their home in Wynnewood, Pennsylvania, late in the afternoon of Independence Day, 1958. He had been shot several times and had been bludgeoned about the head and face. There were no witnesses to the slaying and no one has yet admitted criminal culpability. Certain circumstantial evidence, however, appears to inculpate petitioner. *fn8" Among this evidence were statements purportedly made by petitioner to law enforcement agents during an in-custody interrogation. *fn9" It is the admissibility of these statements that is assailed by petitioner in her claim here.

 Petitioner contends that the statements were the product of police coercion. She alleges lengthy interrogation (from about 5 P.M. on the day of the murder to about 4 A.M. the next morning), intimidation by a police officer and two actual batteries, including one instance where she was allegedly struck across the face.

 No objections to the admissibility of her incriminating statements were ever made at trial, nor does it appear that the voluntariness of these statements was questioned in her post-trial motions and direct appeal to the Pennsylvania Supreme Court. *fn10" It appears that this issue was first raised when petitioner instituted the instant habeas corpus action in 1965. While the admission of the challenged statements caused our Court of Appeals some concern, it affirmed Judge Follmer's dismissal of this claim on the ground that the PCHA seemed to offer a state judicial forum for its adjudication. See In re Kravitz, 358 F.2d 734, 735 (3d Cir. 1966) (per curiam).

 Petitioner's subsequent bid to seek state judicial review of the merits of her claim was rejected without a hearing on the ground that she had "waived" this claim under section 4 of the PCHA. *fn11" Applying the statutory presumption that a failure to raise a claim "is a knowing and understanding failure," *fn12" section 4(c) of the PCHA, Pa.Stat.Ann. tit. 19, § 1180-4(c) (Purdon Supp.1978), and citing a Pennsylvania case which held, inter alia, that "absent a showing of incompetency or the presence of exceptional circumstances, counsel's decision not to attack the confession binds his client," Commonwealth v. Snyder, 427 Pa. 83, 93, 233 A.2d 530, 536 (1967), the Pennsylvania Supreme Court ruled that petitioner's "failure to raise this issue previously at her trial or on appeal to this Court was knowing and understanding." *fn13" Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912, 915 (1970).

 In 1977, petitioner filed a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure in this court for relief from the 1965 judgment dismissing the voluntariness claim for failure to exhaust state judicial remedies. *fn14" Specifically, petitioner sought to add to the Order of August 25, 1965, "express language retaining jurisdiction pending determination by the state courts of the constitutional issues presented to, but undecided by, this Court . . . ." This motion was denied by order dated June 16, 1977, with leave to file a new motion under Rule 60(b). Petitioner subsequently filed a motion under Rule 60(b)(6), which was granted by order dated November 2, 1977. Respondent then moved to dismiss the petition for lack of jurisdiction on the grounds that petitioner was no longer in custody and that inasmuch as the 1965 order was final and the 10-day limit for relief under Rules 52 and 59 had long since passed Rule 60(b) relief was no longer available. By order dated August 2, 1978, respondent's motion was denied. The August 2nd order also vacated the order of November 2, 1977 reopening this case and scheduled a hearing on the question of the reasonableness for the delay in filing the Rule 60 motion. After reviewing the testimony and evidence offered at this hearing I concluded that the delay was not unreasonable and granted petitioner's motion for relief from judgment. Order of March 7, 1979. Respondent's instant motion to dismiss on the ground of waiver became ripe on March 5, 1979.

 III.

 Federal review of a state conviction is a delicate and serious responsibility, especially where, as here, state court consideration of the claim raised by the habeas petitioner is foreclosed by procedural strictures. Proper respect must be given the state's interests in maintaining the integrity of its procedural rules, securing finality of criminal judgments, and obtaining efficient use of state judicial resources. Competing against the state's interests in finality and efficiency are the individual's interest in having some court adjudicate his claim and the societal interest in the ...


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