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Neely v. Zimmerman

filed: October 3, 1988.

NEELY, BLAINE, APPELLANT
v.
ZIMMERMAN, CHARLES H., SUPERINTENDENT AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA AND DISTRICT ATTORNEY OF PHILADELPHIA COUNTY



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 85-7378.

Stapleton and Mansmann, Circuit Judges, and Fisher, District Judge.*fn*

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

A state prisoner challenges his Pennsylvania conviction in a petition for writ of habeas corpus, 28 U.S.C. ยง 2254(b) (1982), alleging that his constitutional right to counsel was abridged during a custodial interrogation.

We decline to consider the district court's resolution of the merits of the prisoner's claim, and, instead, affirm the dismissal of the petition on the alternate rationale that an "independent and adequate state procedural ground" as per Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), precludes federal review of this petitioner's state court conviction here. Specifically, we conclude that the federal claim was waived by petitioner's failure to raise it in a written post-trial motion, a procedure mandated in Pennsylvania courts since the Pennsylvania Supreme Court decision in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Because Neely has not presented "cause" for noncompliance with the procedural rule nor advanced a demonstration of "actual prejudice" resulting from the alleged unconstitutional infringement on his right to counsel in accordance with Wainwright v. Sykes, 433 U.S. at 87, we will affirm the district court. The petition will be dismissed without prejudice to raise the unexhausted ineffectiveness of counsel claim within the appropriate state forum.

I.

On March 18, 1977, Blane Neely and several others were arrested by the Philadelphia police incident to a drug raid. At the scene a large amount of heroin, cash and two handguns were seized. Neely was charged with the manufacture, delivery or possession with intent to deliver a controlled substance, possession of an instrument of crime and criminal conspiracy.

While awaiting trial, Neely fled to California. During his fugitive stay there, Neely patronized a chemical store which was operated by Jeffrey Bordok. Neely ordered from Bordok certain chemicals commonly known as precursor drugs in the manufacture of the narcotic methamphetamine. Unbeknown to Neely, however, Bordok was acting as the proprietor of the store in his capacity as an undercover agent for the Federal Drug Enforcement Agency.

Sometime thereafter, on July 30, 1979, Bordok was informed that Neely, now in custody in the Los Angeles County jail, requested a meeting with him. Prior to visiting Neely in prison, Bordok learned of the drug charges pending against Neely in Philadelphia.

Bordok met with Neely a number of times at the county jail. During one of these meetings, Bordok told Neely that he was interested in purchasing some heroin and asked whether Neely could supply him. Neely responded affirmatively. In discussing the proposed sale, Neely assured Bordok that the heroin would be of good quality, since he would obtain it from the same source which supplied the heroin leading to the criminal charges for which he was presently incarcerated.

Prior to his trial in Pennsylvania, Neely moved to suppress the evidence of his incriminating remarks to Bordok. Neely argued that under Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964), the statements were unlawfully obtained in violation of his sixth amendment right to the assistance of counsel during custodial interrogation. The trial judge denied the suppression motion and Bordok was permitted to testify.

On January 18, 1980, following a jury trial, Neely was convicted of the state charges arising from the March 1977 drug raid. Neely was then sentenced to terms of imprisonment ...


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