On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 82-5286
1. John Robert Daniel appeals from the district court's denial of his petition for a writ of habeas corpus. Daniel argued unsuccessfully in the courts below that his state court convictions violate his fifth amendment right against double jeopardy. Daniel raises the merits of this argument in this appeal, but preliminarily contends that the lower court erred in applying the presumption of correctness under 28 U.S.C. § 2254(d) (1982) to the state court determination that his double jeopardy right had not been violated. We agree that the court below should not have applied the section 2254(d) presumption, but conclude that Daniel's double jeopardy rights were not abridged.
2. On the evening of August 24, 1974, Daniel and three other men entered the Green Acres Inn in Parkesburg, Chester County, and sought out the proprietor, Norman Warner. After Daniel stuck Warner, the other men led Warner to a car. Daniel then returned to the car and a codefendant drove them into Lancaster County. Sometime during the ride, Daniel banged the roof of the car and screamed that he would kill Warner. Once the car was stopped in Lancaster County, Daniel and the other men severely beat and robbed Warner of $200.00, left him by the side of the road, and returned to Chester County.
3. Chester County authorities filed charges against Daniel on August 24, 1974 for three counts of simple assault, two counts of aggravated assault, two counts of kidnapping, one count of felonious restraint, one count of terroristic threats, two counts of robbery, and one count of criminal conspiracy. Six weeks later, Daniel was charged in Lancaster County with one count of aggravated assault, one count of robbery, and one count of terroristic threats. In February 1975, the Chester County court dismissed several counts of the Chester County complain on the ground of lack of jurisdiction. Daniel was then tried and convicted of two counts of simple assault, one count of kidnapping, and one count of terroristic threats in Chester County.
4. In March 1975, Daniel was convicted of each of the three charges against him in Lancaster County. he was sentenced first in Lancaster County to a term of two and one-half to five years incarceration and then to a consecutive prison term in Chester County of one and one-half to three years. The Chester County convictions were affirmed in Pennsylvania appellate courts are are not the subject of this appeal.
5. After his conviction, Daniel filed the first of three habeas corpus petitions under 28 U.S.C. § 2254 in the United States District Court for the eastern District of Pennsylvania. The court dismissed this petition, holding that Daniel had failed to exhaust state remedies. After pursuing state remedies. Daniel filed another petition for habeas corpus relief, alleging that he was denied effective assistance of counsel, that he had been placed in jeopardy twice, and that he was deprived of a speedy trial. The district court approved a magistrate's report and recommendation, which recommended dismissing the double jeopardy and speedy trial issues on the merits as well as the ineffectiveness of counsel claim on exhaustion grounds.
6. After pursuing his state remedies on the ineffectiveness of counsel claim, Daniel filed a third petition under section 2254, raising, inter alia, his double jeopardy claim. A magistrate issued a report and recommendation to dismiss the petition. In suggesting dismissal of the double jeopardy claim, the magistrate relied primarily on his ruling on Daniel's second petition that the prior state court determination on the double jeopardy issue was presumed correct under 28 U.S.C. § 2254(d). The district court adopted this report and recommendation. On December 4, 1985, we granted a certificate of probable cause to appeal.
7. Before we reach the issues petitioner Daniel raises in this appeal, we must first address respondent's contention that Daniel has waived his right to raise his double jeopardy claim. Respondent points out that Daniel raised the double jeopardy claim in his second habeas corpus petition and subsequently failed to appeal the district court's dismissal of the merits of the claim. Building on this observation, respondent argues that the instant appeal is, in effect, an untimely appeal from the district court's ruling on the second petition. Thus, respondent contends, Federal Rule of Appellate Procedure 4(a), requiring the filing of an appeal within thirty days of the district court's order, divests this court of jurisdiction over the present case.
8. We are not convinced by respondent's characterization of this appeal. confronted with the district court's disposition of his second petition. Daniel had a choice between pursuing the denial on the merits of his double jeopardy and speedy trial claims in federal court or returning to state court for an adjudication of his ineffective assistance of counsel claims. Daniel's choice of the latter course accords with the policy, long enforced by federal courts, of exhaustion of state remedies. Indeed, under current authority, the avenue of federal court appeal would not have been open to Daniel. See Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).*fn1 For these reasons, we hold that Daniel's failure to appeal from the initial rejection of his claim does not deprive this court of jurisdiction to consider the claim now. Accord Bryson v. Alabama, 634 F.2d 862, 864 n.2 (5th Cir. 1981); see Zimmerman v. Spears, 565 F.2d 310, 317 (5th Cir. 1977).
9. We not turn to Daniel's claim that the district court improperly applied the presumption of correctness under 28 U.S.C. § ) 2254(d) to the prior state court determination of his double jeopardy claim. In addressing the double jeopardy claim in Daniel's third petition, the magistrate relied on the test for evaluating successive applications for federal habeas corpus relief articulated in Sanders v. ...