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January 10, 1989


The opinion of the court was delivered by: LORD, III

 Habeas Corpus. On July 12, 1982 in the Court of Common Pleas of Lehigh County, just before his trial was to begin, Francis O'Halloran purportedly waived his Sixth Amendment right to counsel. Minutes later, he pleaded guilty to a burglary charge, pursuant to a plea bargain he had negotiated earlier with the prosecutor. Several weeks later, just before he was sentenced, he again purportedly waived his right to counsel.

 O'Halloran's principal contention in this habeas petition is that his purported waivers of his Sixth Amendment right to counsel were unknowing and therefore invalid, under Johnson v. Zerbst and progeny. 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). The waivers were unknowing, he says, because the judge who accepted them had not previously advised him of the disadvantages of proceeding pro se, and had not sufficiently advised him of his right to appointed counsel. He contends further that the invalidity of his counsel waivers tainted his subsequent guilty plea and sentencing. Unless the Commonwealth eliminates that taint by vacating his sentence and permitting him to withdraw his guilty plea and his counsel waivers, he believes he is entitled to federal habeas relief.

 The prosecutor opposes O'Halloran's petition on several procedural grounds. The prosecutor argues that the petition must be dismissed because O'Halloran has abused the writ of habeas corpus, by filing successive petitions, and because he has not exhausted available state remedies. The prosecutor argues in the alternative that if the petition is not dismissed it must be denied because an independent and adequate ground exists which bars federal habeas relief, specifically O'Halloran's failure to comply on direct appeal with a state rule which required him to present his counsel-waiver grounds in the first instance to the trial court. I conclude that O'Halloran's petition must be denied.

 Abuse of the Writ

 This is O'Halloran's second habeas petition; his first petition was dismissed for failure to exhaust state remedies. O'Halloran v. Ryan, 650 F. Supp. 818 (E.D. Pa. 1986), aff'd, 835 F.2d 506 (3d Cir. 1987). The prosecutor argues that his present petition must be dismissed pursuant to Sanders v. United States, as an abuse of the writ. 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963). In Sanders, the Court held:

"if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if . . . the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay."

 Id. at 18, 163.

 The prosecutor acknowledges O'Halloran did mention the counsel-waiver grounds in his first petition. Therefore, O'Halloran did not "withhold" the ground entirely. The prosecutor complains, however, that in his first petition O'Halloran presented the counsel-waiver grounds only in a cursory and incomprehensible manner. That amounted to a deliberate effort to withhold the grounds the first time around, the prosecutor claims.

 I see no reason to conclude that O'Halloran's failure to present his counsel-waiver grounds in a thorough manner in his first habeas petition was the product of a deliberate effort to gain a second hearing, to vex this court, or otherwise to abuse the writ. Rather, I believe his failure was the product of his inability to articulate his many complaints in a cogent fashion on his first try. Nothing in Sanders or later cases calls for me to dismiss O'Halloran's present petition under these circumstances as an abuse of the writ. See also Rose v. Lundy, 455 U.S. 509, 522, 532, 71 L. Ed. 2d 379, 390, 396, 102 S. Ct. 1198 (1982) (concurring opinions of Justices Blackmun, Brennan and Marshall, declining to hold that successive petitions which present new grounds must always be dismissed).


 O'Halloran presents four grounds for relief. The first three are very similar in that all are challenges to the validity of his purported waivers of his Sixth Amendment right to counsel. Specifically, he claims first, that although he "informed the court both at the plea/sentencing of his inability to obtain counsel . . . the court assumed [he] was not entitled to have appointed or stand-by counsel." Second, he claims that the "court placed more emphasis upon forcing a quick decision than an [sic] insuring an intelligent and thoughtful course of action." Third, he asserts "there is on the record proof of a deficient colloquy on waiver of counsel at the plea and no colloquy at the sentencing." Because these grounds are so similar, I refer to them collectively as the "counsel-waiver grounds." The fourth ground O'Halloran presents is that Pennsylvania's Superior Court on direct appeal violated his due process rights by allegedly stating in its memorandum that he had been represented by counsel when he pleaded guilty, when in fact he was not represented.

 The prosecutor advances three arguments for his position that O'Halloran has not exhausted his state remedies. The prosecutor contends first, that O'Halloran failed to cite any legal authority in support of his counsel-waiver grounds in his direct appeals to the Superior and Pennsylvania Supreme Courts. Unless the state courts are presented with both the facts and the law, the prosecutor notes, they have not been fairly presented with a claim. E.g., Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986).

 It is simply untrue that O'Halloran cited no legal authority in his briefs to Pennsylvania's appellate courts. To both courts he cited the case which forms the foundation of his present habeas petition: Von Moltke v. Gillies, 332 U.S. 708, 92 L. Ed. 309, 68 S. Ct. 316 (1947). Pro se Supplemental Brief to Superior Court, p. 22; Pro se allocatur brief, p. 16. I will discuss the Von Moltke case at greater length below. For now, it will suffice to say that the Von Moltke case not only is pertinent to O'Halloran's claim, it provides considerable support for that claim. Besides citing Von Moltke, O'Halloran directed the courts to the pertinent portions of the ...

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