Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 85-1688)
BEFORE: BECKER, and STAPLETON, Circuit Judges, and VAN DUSEN, Senior Circuit Judge
STAPLETON, Circuit Judge :
The petitioner, Richard Wojtczak, was convicted of rape and assault in the Court of Common Pleas of Philadelphia County. His conviction was affirmed by the Pennsylvania Superior Court. Commonwealth v. Woljtczak [sic], 254 Pa. Super. 608, 387 A.2d 111 (1978). Wojtczak initially submitted a request for allocatur to the Pennsylvania Supreme Court, but subsequently withdrew his petition in June, 1978.
In June, 1982, Wojtczak, who remains incarcerated in a Pennsylvania prison, filed a petition in the Court of Common Pleas of Philadelphia County under Pennsylvania's Post Conviction hearing Act, 42 Pa. C.S.A. §§ 9541-9551 ("PCHA"). During this proceeding, which is still pending, the court appointed at least five different attorneys to represent him.
In March, 1985, Wojtczak filed this petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Based on the pendency of Wojtczak's PCHA action, that court denied Wojtczak's habeas petition for failure to exhaust available state remedies. Wojtczak filed this timely appeal. We reverse.
Under ordinary circumstances, a federal court may not entertain a petition for a writ of habeas corpus unless the petitioner has first presented each of his claims to the state's highest tribunal. 28 U.S.C. §§ 2254(b), (c);*fn1 Rose v. Lundy, 455 U.S. 509, 522, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). Wojtczak does not argue that he has done so.
However, inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable. When such delay has rendered the State remedy ineffective to protect the rights of the petitioner, we have excused exhaustion. See Codispoti v. Howard, 589 F.2d 135 (3d Cir. 1978); United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir. 1975); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973).
In this case, thirty-three months passed between Wojtczak's PCHA filing and the filing of his federal habeas corpus petition in March, 1985. As of that federal filing Wojtczak's court appointed counsel had not yet secured a hearing on his petition in the Court of Common Pleas. Wojtczak alleged that this inordinate delay in processing his grievance had rendered the state corrective process "ineffective to protect the rights of the prisoner." Wojtczak further pointed out in his federal petition that, if the state proceedings continued at their current pace and he ultimately had to exhaust his appellate remedies, access to the federal courts could be delayed for many years.
The respondent argues that the delay in resolving Wojtczak's claim is attributable to the fact that he has had so many different attorneys representing him in the state proceeding and that this, in turn, is the result of Wojtczak's inability to cooperate with his lawyers. Wojtczak, on the other hand, maintains that the delay has resulted from the court's failure to appoint attorneys who are willing and able to move his case forward and from its willingness to permit appointed counsel to withdraw at will.
The district court endorsed the respondent's position without holding a hearing to determine the causes of the delay. We agree with the district court that this explanation, if true, would excuse the lengthy delay. However, we have reviewed the record and find that it does not support the finding that the delay was attributable to Wojtczak.
The district court record consists almost entirely of the petition and numerous letters which passed between Wojtczak and his attorneys and between Wojtczak and the court. The respondent tendered nothing which tended to contradict the facts reflected in this correspondence. The following facts can be gleaned from this contemporary documentation.
The Philadelphia Court of Common Pleas, in August, 1982, appointed Attorney No. 1*fn2 to represent Wojtczak in his PCHA proceeding. [43a]. He withdrew from the case in February, 1983, without giving any explanation to Wojtczak. [44a, 46a]. Petitioner ...