APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
Weis and Higginbotham, Circuit Judges, and Brotman, District Judge.*fn*
In this habeas corpus case, a state prisoner alleges that the trial court committed constitutional error in its jury charge on presumption of malice and the burden of proof on insanity. After finding exhaustion of state remedies, the district court denied relief on the merits of the insanity issue and held there was a procedural default on the malice claim.*fn1 We conclude that the malice instruction issue was never fairly presented to the state courts. Accordingly, we vacate the judgment of the district court and direct dismissal of the habeas petition so that the malice claim may be pursued in state forums.
Petitioner was convicted on two counts of second-degree murder in a Pennsylvania state court in 1972. He was sentenced to two consecutive terms of 10 to 20 years each. The Pennsylvania Supreme Court affirmed on direct appeal, the only issue being the propriety of the consecutive sentences. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973).
In 1977, petitioner initiated a pro se proceeding in the state trial court under the Post Conviction Hearing Act, PA. STAT. ANN. tit. 19, §§ 1180-1 to 1180-14 (Purd. Supp. 1982) (current version at 42 PA. CON. STAT. ANN. §§ 9541-9551 (Purd. 1982)). Counsel other than trial counsel was appointed, and a hearing conducted. Petitioner raised five contentions:
1. the change in Pennsylvania law placing the burden of proving sanity on the prosecution should be applied retroactively to his case;
2. & 3. the trial court erred in admitting certain opinions by the state's psychiatric expert;
4. admission of a police officer's testimony was error; and
5. the state had failed to prove the petitioner was legally sane.
All of these contentions were rejected by the trial court, and the case was next reviewed and affirmed by a special panel of the Pennsylvania Superior Court. The state supreme court granted allocatur.
In his brief in the supreme court, petitioner listed as the "Statement of Question Involved" the following: "Is a criminal defendant, having raised the issue of insanity upon trial for murder, entitled to reversal of his conviction based upon erroneous jury instruction as to the burden of proof with respect to insanity where no objection thereto was raised at trial?"
The argument was divided into three parts. Point I was that the trial judge had erred in instructing the jury that a defendant had the burden of proving insanity, a doctrine in effect at the time of trial but changed thereafter.*fn2 The second point was that the United States Constitution mandated the then-current Pennsylvania rule that the state was required to prove sanity beyond a reasonable doubt once the defendant produced evidence of insanity. In the course of this argument, petitioner cited New York v. Patterson, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977), Hankerson v. North Carolina, 432 U.S. 233, 53 L. Ed. 2d 306, 97 S. Ct. 2339 (1977), Mullaney v. Wilbur, 421 ...