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August 9, 1982


The opinion of the court was delivered by: BRODERICK


 This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate in accordance with Local Rule 7 of this court. The magistrate issued a report and recommended that the petition be denied without prejudice on the ground that the Relator had not exhausted his claims in state court. The Commonwealth, although it agrees with the magistrate's recommendation that the Relator has not exhausted his claims in state court, has filed objections to the report.

 The Relator, Donial Hayes, and one Ricky Kearns Pate, were arrested and charged with robbery and criminal conspiracy on March 3, 1977. The conspiracy information named Ricky Pate, Benjamin Walker, and other unknown persons as co-conspirators with Donial Hayes. From May 20, 1977 to May 26, 1977, the Relator and his co-defendant, Pate, were tried jointly before the Honorable Levy Anderson and a jury. On May 26, 1977, the Relator was found guilty of robbery and criminal conspiracy. His co-defendant, Pate, was acquitted of both charges. Apparently, there was no evidence presented at the trial of any participation in the incident by anyone other than Hayes and Pate (all charges against Mr. Walker were dismissed at a preliminary hearing).

 On June 2, 1977, the Relator filed post-verdict motions in which he contended, inter alia, that the conviction for conspiracy should be set aside since his alleged co-conspirator had been acquitted. Judge Anderson denied the Relator's motions on February 2, 1978.

 The Relator then filed a Notice of Appeal with the Superior Court. Judge Anderson, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), ordered the Relator to file with the trial court "a concise statement of the matters complained of on appeal." The Relator complied, and in his statement the Relator informed Judge Anderson that he intended to press, among other matters, his contention that he should be acquitted on the conspiracy charge. Thereafter, on January 29, 1979, Judge Anderson issued an opinion in which he stated that the Relator's conspiracy conviction should be set aside. Judge Anderson based this opinion on a case then recently decided by the Superior Court ( Commonwealth v. Campbell, 257 Pa. Super. 160, 390 A.2d 761 (1978), aff'd. 484 Pa. 387, 399 A.2d 130 (1979)) which held that where one of two co-conspirators is acquitted and the other is found guilty, the one found guilty must also be acquitted. The Relator did not appeal his conspiracy conviction, believing that his conviction had been vacated by Judge Anderson. Indeed, the Superior Court noted in its Memorandum Opinion: "The conviction for criminal conspiracy was set aside . . ." After considering the Relator's other contentions, the Superior Court in its Judgment Order of November 11, 1980 stated: "Judgment of sentence affirmed." On December 5, 1980, however, Judge Anderson advised the Relator by letter that the statement in the Opinion of the Superior Court that "[the] conviction for criminal conspiracy was set aside" was erroneous and that a judgment on his conspiracy conviction would not be arrested since there had been no "remand."

 Relator then proceeded to petition the Pennsylvania Supreme Court for leave to appeal nunc pro tunc. Shortly thereafter, he petitioned to amend the petition to state his conspiracy argument on the ground that Judge Anderson's opinion of January 29, 1979 had not granted an acquittal. The Pennsylvania Supreme Court denied both of Relator's petitions.

 Relator then filed a petition for a writ of habeas corpus in this court alleging: 1) that the acquittal of his named alleged co-conspirator mandated his acquittal; 2) that there was a tainted in-court identification; 3) that the trial judge should have recused himself because he had accepted a guilty plea which was subsequently withdrawn; 4) that his appellate counsel was ineffective for failing to file a timely appeal with the Pennsylvania Supreme Court; 5) that he was unconstitutionally prevented from testifying in his own behalf at trial; and 6) that his conviction for both robbery and conspiracy to commit robbery was violative of the Fifth Amendment's prohibition against twice being placed in jeopardy for the same offense.

 The magistrate's report of December 14, 1981 recommended that the Relator's petition for a writ of habeas corpus be denied without prejudice. The magistrate found that since the state court had not had a fair and full opportunity to address the Relator's conspiracy issue and since the Relator did not raise his double jeopardy argument in the state court, the Relator had not exhausted his state remedies as required by 28 U.S.C. § 2254(b). The magistrate also recommended that there exists probable cause for appeal.

 The Commonwealth appears to object to the magistrate's report on two grounds. First, the Commonwealth takes issue with the manner in which the magistrate analyzed the Relator's conspiracy contention. For some reason, the Commonwealth interpreted the magistrate's report as stating that the Relator had exhausted his state remedies with regard to the conspiracy contention. The Commonwealth also disagrees with the magistrate's evaluation of the relative merits of the Relator's conpiracy claim. Second, the Commonwealth objects to the magistrate's recommendation that there is probable cause for appeal.

 Initially, the court notes that any uncertainty in the law as to whether the presence of unexhausted and exhausted claims in the same petition for a writ of habeas corpus bars adjudication by Federal courts of the exhausted claims has been laid to rest by the recent Supreme Court decision in Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 50 U.S.L.W. 4272, 71 L. Ed. 2d 379 (1982), which holds that whenever a habeas corpus petition contains both exhausted claims and claims not exhausted, the entire petition must be dismissed for failure to comply with the exhaustion requirements of § 2254(b). According to Rose v. Lundy, the Relator is then left "with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." 102 S. Ct. at 1199.

 The Relator's petition contains claims that have not been exhausted by state remedies. The magistrate found in his report that the Relator had not exhausted his conspiracy argument since the state has not had a fair and full opportunity to address the issue. This court agrees completely with that evaluation, recognizing that because of the unusual procedural history of this case the issue is one that the state court has not had a full opportunity to consider.

 The fundamental purpose of the exhaustion requirement is to ensure that the Federal habeas courts do not trespass in the state's domain. "Exhaustion is a rule of comity", United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir. 1977), and the state courts should have a fair and full opportunity to confront the issue as to whether the Relator is in custody in violation of the Constitution, laws or treaties of the United States. Ray v. Howard, 486 F. Supp. 638 (E.D. Pa. 1980); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1977); United States ex rel. Hickey v. Jeffes, 571 F.2d 762 (3d Cir. 1978); Stone v. Powell, 428 ...

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