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June 23, 1982

Clyde Eugene HILL, Petitioner,
Charles ZIMMERMAN, et al., Respondents

The opinion of the court was delivered by: CONABOY


Petitioner, Clyde Eugene Hill, presently incarcerated in the State Correctional Institution at Huntingdon, Pennsylvania, filed this habeas corpus action on March 10, 1982, pursuant to 28 U.S.C. § 2254 (1966). In it he requests this Court to set aside his October 1972 criminal conviction in the Court of Common Pleas of Dauphin County, Pennsylvania, of two counts of second degree murder. *fn1" The principal ground raised in support thereof is that the trial court's instruction to the jury placing the burden of proving insanity by a preponderance of the evidence upon the Petitioner violated the Due Process Clause of the Fourteenth Amendment. An Answer to the petition was filed by the Respondents on May 3, 1982 in which the relevant state court documents were included and, thus, the matter is currently ripe for disposition. For the reasons set forth herein, the request for a writ of habeas corpus will be denied and the petition will be dismissed.


 On October 18, 1972 Petitioner was convicted by a jury of two counts of second degree murder and was sentenced to consecutive ten (10)-twenty (20) year terms of imprisonment. On direct appeal, the Supreme Court affirmed the judgments of sentence. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973). *fn2" Within the course of his opinion, Justice Eagen briefly summarized the relevant facts surrounding Petitioner's crime:

Hill and one Antoinette Pledger lived together from 1963 to 1971, and during that time had two children. In 1971, Pledger left Hill and began living with Richard J. Harris. In the early morning hours of April 16, 1972, Hill left the home of his grandfather, with whom he was residing, and proceeded across the street to a parked car in which Pledger and Harris were sitting. Hill engaged the two in a conversation for a short time, then drew a .22 caliber pistol from his pocket and fatally shot them both in the left temples. He then returned to the home of his grandfather, placed the pistol on a table, and told his grandfather to call the police and turn him in. Id. at 351, 310 A.2d 88.

 On May 9, 1977, Hill filed a pro se petition under the Pennsylvania Post-Conviction Hearing Act, *fn3" in which he raised an issue relating to the ineffectiveness of his trial counsel. The trial court then appointed new counsel for Hill and, after a hearing, granted Petitioner permission to file post-verdict motions nunc pro tunc. After the filing of these motions and argument thereon, the Court of Common Pleas of Dauphin County denied the Petitioner's motion for a new trial in an opinion and order dated September 13, 1978. This denial was appealed directly to the Pennsylvania Supreme Court, but the case was transferred to a special panel of the Superior Court of Pennsylvania and listed at No. 1, Special Transfer Docket. The Superior Court, in a per curiam opinion dated December 21, 1979, affirmed the order of trial court; however, the panel recommended that the Supreme Court accept review of the appeal to further consider the issue of the burden of proof as to the defense of insanity in a criminal case. The Pennsylvania Supreme Court granted allocatur on February 22, 1980.

 The Petitioner presented the following three arguments for review to the Supreme Court of Pennsylvania: (1) that the trial judge erred in instructing the jury that Hill had the burden of proving the defense of insanity by a preponderance of the evidence; *fn4" (2) that the trial court's instruction on the issue of malice was improper in that it shifted the burden of proof to the Defendant by presuming an element of the offense upon proof of other elements, *fn5" in violation of the principles established in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) and Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); and (3) that Hill was entitled to the retroactive benefit of the United States Supreme Court's holdings in Mullaney and Patterson and other similar Pennsylvania Supreme Court decisions. *fn6"

 On October 31, 1980, an evenly divided Pennsylvania Supreme Court affirmed Petitioner's conviction. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980). The Opinion in Support of Affirmance did not address the substantive merits of Hill's claims; rather, it found that trial counsel's failure to interpose specific objections to the charge precluded appellate review of any alleged errors in the trial court's instructions. See Pa.R.Crim.P. 1119(b). *fn7" Specifically, Justice Nix observed that this "foreclosure results from the failure to properly raise and preserve the issue and that insistence upon strict compliance with the rules of issue preservation is essential to the efficient, effective and just operation of our system of review." 492 Pa. at 111, 422 A.2d 491. Thereafter, on March 10, 1982, Petitioner filed the instant federal habeas corpus action under 28 U.S.C. § 2254 advancing essentially the same grounds for relief as he raised before the Supreme Court of Pennsylvania.


 A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held "in custody in violation of the Constitution or laws or treaties of the United States." See Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 1567, 71 L. Ed. 2d 783 (1982). Consequently, the scope of review of a federal habeas court is limited by the well-established principle that "(a) state prisoner can win a federal writ of habeas corpus only upon a showing that the state participated in the denial of a fundamental right protected by the Fourteenth Amendment." Cuyler v. Sullivan, 446 U.S. 335, 342-43, 100 S. Ct. 1708, 1715, 64 L. Ed. 2d 333 (1980); See Rose v. Hodges, 423 U.S. 19, 21, 96 S. Ct. 175, 177, 46 L. Ed. 2d 162 (1975); Rock v. Zimmerman, 543 F. Supp. 179, Civ. No. 81-1167 at 6 (M.D.Pa. June 1, 1982). Moreover, when a procedural default at trial has barred an inmate from obtaining adjudication of his claim in the state appellate courts, federal habeas relief is not available absent a showing of "cause" and "actual prejudice." Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977). However, "(if) a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable", and "(it) is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts." Engle v. Isaac, supra, 102 S. Ct. at 1567 n. 19.

 A. The first issue raised in Hill's habeas corpus petition concerns the trial court's charge placing the burden of proving insanity on the defendant by a preponderance of the evidence. *fn8" As a federal habeas court, our inquiry into this issue is a narrow one; we must determine only whether the Commonwealth was constitutionally prohibited from requiring the Petitioner to prove this affirmative defense. See United States ex rel. Goddard v. Vaughn, 614 F.2d 929, 931 (3d Cir.), cert. denied, 449 U.S. 844, 101 S. Ct. 127, 66 L. Ed. 2d 53 (1980).

 In Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952), the Supreme Court held that the state of Oregon could, consistent with the Due Process Clause, require a defendant in a murder case to prove insanity beyond a reasonable doubt. Despite this unequivocal pronouncement by the Court, subsequent decisions seemed to cast doubt upon the continued validity of the Leland rule. In In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970), the Court announced that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." And five years later, in Mullaney v. Wilbur, supra, the Supreme Court, considering the Maine law of homicide, held unconstitutional an instruction that permitted an inference of malice if the jury found the homicide in question was both intentional and unlawful, unless the defendant showed by a preponderance of the evidence that the crime was committed in the heat of passion on sudden provocation. As explained by the Third Circuit in Goddard, "this persuasion-shifting arrangement relieved the prosecution of its constitutional obligation to establish every fact critical to a greater degree of culpability." 614 F.2d at 933.

 A year after Mullaney was decided, however, the Court confirmed the validity of Leland v. Oregon when it dismissed for want of a substantial federal question an appeal from the Delaware Supreme Court affirming a conviction wherein the defendant was required to prove his affirmative defense of insanity by a preponderance of the evidence. Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976). The specific claim advanced by the petitioner in Rivera and implicitly rejected by a majority of the Court was that Leland had been overruled by Winship and Mullaney. See Patterson v. New York, supra, 432 U.S. at 205, 97 S. Ct. at 2324. The Supreme Court's latest comment on this issue occurred in Patterson, wherein Justice White, writing for the majority, clearly stated that "(w)e are unwilling to reconsider Leland and Rivera. Id. at 207, 97 S. Ct. at 2325. In light of the foregoing discussion of Supreme Court precedents, we conclude that the Due Process Clause does not prohibit the states from requiring a defendant to carry the burden of disproving sanity; moreover, the lower federal courts, adhering to Leland and Rivera, have consistently so held. See United States ex rel. Goddard v. Vaughn, supra; Nelson v. Hutto, 597 F.2d 137 (8th Cir. 1979); Duisen v. Wyrick, 566 F.2d 616 (8th Cir. 1977); Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139, 58 L. Ed. 2d 144 (1978); United States ex rel. Coleman v. Hicks, 498 F. Supp. 636 (D.N.J.1980). Accordingly, since the state trial court's instruction in this case on the issue of insanity suffers from no constitutional infirmity, we must deny Hill's request for a writ of habeas corpus as to the first ground advanced in his petition.

 B. Petitioner's other claim in this federal habeas action relates to the trial court's instruction on the element of malice for a second-degree murder ...

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