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Hankins v. Fulcomer

submitted: June 25, 1991.

HAROLD LEE HANKINS, APPELLANT,
v.
THOMAS FULCOMER, SUPERINTENDENT, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, COMMON PLEAS OF CRAWFORD COUNTY, DISTRICT ATTORNEY OF CRAWFORD COUNTY



On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil Action No. 90-00047-E.

Mansmann and Scirica, Circuit Judges and Pollak, District Judge.*fn*

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge

Harold Lee Hankins, a state prisoner, appeals from the dismissal of his petition for a writ of habeas corpus. The district court, adopting the Report and Recommendation of the magistrate judge, dismissed the petition for failure to exhaust state remedies. Hankins contends that the district court erred by failing to find inordinate delay in state proceedings, which would excuse a lack of exhaustion.

We hold that the nearly eleven-year delay by the Court of Common Pleas of Crawford County, Pennsylvania in deciding Hankins' post-sentencing motion for withdrawal of guilty plea is inordinate and rendered the state process ineffective to protect Hankins' rights. Consequently, we will reverse the judgment of the district court and remand for consideration of the merits of Hankins' constitutional claims.

I.

In May of 1980 Hankins entered a plea of guilty to robbery in the Court of Common Pleas of Crawford County, Pennsylvania. Hankins subsequently received a sentence of ten to twenty years imprisonment.*fn1 The court-appointed attorney for Hankins filed timely motions for reconsideration of sentence and withdrawal of guilty plea. Argument on the two motions occurred on July 9, 1980 and the motion for reconsideration of sentence was denied on July 18, 1980. The motion for withdrawal of guilty plea has never been decided by the Crawford County Court of Common Pleas.

The court held a second hearing on the motion in August, 1980, after which the first court-appointed attorney withdrew.*fn2 A second attorney was soon appointed, but withdrew after eight days. The court appointed a third attorney who filed amended petitions for withdrawal of guilty plea in both October and December of 1980. A hearing on the final amended petition was held on December 18 and 19, 1980, but resulted in no disposition by the court.

Several additional actions relating to Hankins' motion for withdrawal of guilty plea occurred between 1980 and 1985, during which time the court still failed to issue a decision. The third court-appointed attorney withdrew early in 1981. Another attorney was not appointed for almost one year. That attorney, the fourth for Hankins, requested transcripts of the 1980 hearings in August, 1982 and filed a motion for disposition in February, 1985. This motion stated that all the relevant evidence was before the court and asked the court to decide Hankins' motion for withdrawal of guilty plea.

Hankins himself wrote letters to and filed pro se petitions with the court, requesting information and transcripts. In November, 1984 the court instructed Hankins to channel all future correspondence and requests through his attorney. According to the record, Hankins has been represented by the fourth court-appointed attorney from 1982 to the present time.

Hankins pursued his motion for withdrawal of guilty plea only in the Crawford County Court of Common Pleas and did not seek relief from the state appellate courts to resolve the delay in deciding this motion. Hankins then sought federal relief through three petitions for a writ of habeas corpus, including this case. The record of these federal cases is confusing. Between 1984 and 1986, Hankins pursued pro se a federal petition for writ of habeas corpus on a state conviction unrelated to this case. Hankins filed two additional pro se habeas petitions, one in 1985*fn3 and the other for this case filed in 1990. The 1985 petition and this case are nearly identical, both involving the issue of delayed disposition of the July, 1980 motion for withdrawal of guilty plea. The district court dismissed the 1985 petition, after concluding (we think incorrectly) that it involved the same state conviction as the 1984 habeas petition. The memorandum order dismissing the 1985 petition is difficult to understand and we believe mistakenly draws the conclusion that the issues raised in that petition were remedied by the court's disposition of Hankins' 1984 habeas case.*fn4 Hankins did not appeal this judgment. In 1985 and 1986 Hankins appealed the disposition of the 1984 habeas petition to the United States Court of Appeals for the Third Circuit and the United States Supreme Court. There is no indication in the record that Hankins or his court-appointed attorney took any action during the period of 1986 through 1989 in relation to his July, 1980 motion for withdrawal of guilty plea.

On February 26, 1990, Hankins filed this pro se petition for a writ of habeas corpus, his second federal habeas petition involving the July, 1980 motion for withdrawal of guilty plea. Hankins recites several grounds for relief. First, he asserts that the nearly eleven year delay by the Crawford County Court in deciding his motion for withdrawal of guilty plea violated his rights to due process, access to the courts, and a speedy trial. Second, he asserts a violation of the right to effective assistance of counsel. He argues that counsel did not properly advise him of his right against unreasonable search and seizure in connection with his arrest. Hankins also claims his counsel misrepresented that a plea bargain had taken place, thereby inducing his plea of guilty.*fn5 Finally, Hankins asserts a violation of due process because the court failed to advise him of the right to withdraw his guilty plea prior to sentencing.

After reviewing Hankins' petition for writ of habeas corpus, the magistrate judge recommended that the petition be dismissed for failure to exhaust state remedies. The magistrate judge's report also found that Hankins had not shown inordinate delay. On October 30, 1990, the district court adopted the magistrate judge's Report and Recommendation and denied Hankins' petition. Hankins filed a timely ...


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