Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-2433.
Weis and Stapleton, Circuit Judges, and Diamond,*fn* District Judge.
A state prisoner seeking federal habeas corpus relief alleged inadequacy of counsel, but failed to establish the factual basis for that claim in the state courts. As a result, the district court required petitioner to use state post-conviction procedures so that his claim could be fairly presented to the state courts. We agree with the district court that state remedies have not been exhausted and accordingly we will affirm denial of the petition for habeas corpus.
Petitioner pleaded guilty to a burglary charge in the Court of Common Pleas of Lehigh County, Pennsylvania. Additional counts in the indictment were dismissed in accordance with the plea bargain. After sentencing, petitioner requested leave to withdraw his guilty plea, asserting that, contrary to the plea bargain, his four- to ten-year prison term exceeded the sentence imposed on his co-defendants.
Following an evidentiary hearing, the Court of Common Pleas denied the motion. In a pro se appeal to the Pennsylvania Superior Court, petitioner alleged that counsel ineffectively represented him during the hearing on the plea withdrawal motion. Specifically, petitioner complained that his lawyer, James T. Huber, had failed to subpoena a co-defendant, the custody sheriff, and a law clerk to the sentencing judge. In the trial court, petitioner had testified that the sheriff and the clerk had been present at the time the plea negotiations with the assistant district attorney took place.
The Superior Court reviewed the plea colloquy and determined that it did not demonstrate a promise that the petitioner would receive the same sentence as his co-defendant. Furthermore, the court stated "because [petitioner] has not shown that the testimony of the above-mentioned persons would have been helpful to his defense, counsel's failure to subpoena the three witnesses cannot be deemed ineffectiveness."
Petitioner also included in his appellate brief "After Discovered Evidence" that the law clerk was the wife of Attorney Huber, and that he had never disclosed that fact to the petitioner. The Superior Court observed, "These allegations are without support in the record. This Court can only consider the facts in the record and not those facts located only in a party's brief."
The Superior Court affirmed the judgment of sentence and the Supreme Court of Pennsylvania denied allocatur. Petitioner then filed this habeas corpus action in the district court.
The district court determined that the record contained no factual finding that the law clerk knew the details of the plea bargain, a principal hurdle in deciding the merits of the petitioner's claim of ineffective counsel. Because these facts had not been determined, the court thought that finding should be made in the first instance by the state court rather than by the federal habeas corpus court.
The Superior Court had neither adjudicated the merits of the petitioner's claim nor held it had been waived. Therefore, the district court concluded that procedures under Post Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. §§ 9541-51 (Purdon 1982), were available and should be pursued first. Assigning responsibility in that sequence would permit the Court of Common Pleas to determine the facts during an evidentiary hearing and provide the state with a fair opportunity to consider the constitutional claim. The district judge certified probable cause for an appeal because this court has not resolved the allocation issue.
The public defender representing petitioner in this appeal argues that a claim of ineffective assistance of counsel under Pennsylvania law must be raised on direct appeal, if at that stage the defendant is not represented by trial counsel. Generally under state law, failure to raise the issue on direct appeal acts as a waiver. Disputing the public defender's contention, the Commonwealth takes two inconsistent positions. On the one hand it asserts that the Superior Court's conclusion that the ineffective assistance of counsel claim lacks support in the record constitutes a finding of fact, and thus that finding is entitled to a presumption of correctness. Alternatively, the Commonwealth agrees with the district court that if fact finding is necessary, it should be conducted in the state court.
Title 28 U.S.C. § 2254(b) requires a petitioner to exhaust available state remedies before filing a habeas corpus action in federal court. Section 2254(c) reads: "An applicant shall not be deemed to have exhausted the remedies available in the court of the State . . . if he has the right under the ...