On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 90-5036)
Before: Sloviter, Chief Judge, Greenberg, Circuit Judge and McCLURE, District Judge*fn*
Petitioner Frances Evans appeals to this court from the district court's order dismissing her petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. Evans, a state prisoner whose conviction has been vacated because of evidentiary errors and who faces a retrial in state court, argues that the district court erred in dismissing her federal habeas corpus petition on the ground of failure to exhaust. We agree with Evans, but must then determine whether a federal court may consider the merits of a state prisoner's challenge to the evidence presented in her first trial before her state-ordered retrial. Implicated in the resolution of this question are important issues of federalism and comity.
Procedural and Factual History
It is conceded that on September 28, 1984, Evans shot her husband in their home, fatally wounding him. In her subsequent murder trial in the Pennsylvania Court of Common Pleas, Delaware County, Evans contended that after enduring years of physical abuse from her husband, she used her husband's gun in self-defense to ward off a deadly attack. Following a three-day trial, a jury acquitted Evans of first-degree murder*fn1 but convicted her on a charge of third-degree murder.*fn2 The trial court sentenced Evans to serve five to ten years in prison, the mandatory minimum sentence under Pennsylvania state law for certain crimes, including third degree murder, committed with a firearm.
On direct appeal to the Pennsylvania Superior Court, Evans argued, inter alia, that the evidence presented at trial was insufficient to prove that she had the requisite malice for third-degree murder and insufficient to demonstrate that she had not acted in self-defense. In an unpublished opinion, the Superior Court explicitly found that the evidence was sufficient to support Evans's conviction, but held that two trial errors required reversal and remanded the case for a new trial.*fn3 Com. v. Evans, 383 Pa. Super. 663, 550 A.2d 248 (Pa. Super. 1988) (noting the decision). The Pennsylvania Supreme Court denied Evans's petition for allowance of appeal. Com. v. Evans, 522 Pa. 594, 562 A.2d 319 (Pa. 1989). Thereafter, that same court granted the Commonwealth's cross-petition challenging the grant of a new trial. Following full briefing and argument, the Supreme Court dismissed the Commonwealth's appeal as improvidently granted. Com. v. Evans, 524 Pa. 97, 569 A.2d 349 (Pa. 1990). Evans obtained a stay of retrial from Chief Justice Nix of the Pennsylvania Supreme Court; that stay was dissolved after Evans's petition for a writ of certiorari to the United States Supreme Court was denied. Evans v. Pennsylvania, 111 L. Ed. 2d 789, 110 S. Ct. 3280 (1990).
Evans then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, contending that her due process rights under the Fourteenth Amendment were violated because of the insufficiency of the evidence adduced at her trial to prove malice or to disprove self-defense and the Superior Court's exclusive reliance on a presumption of malice from use of a deadly weapon.
In its response to Evans's petition, the Commonwealth conceded that Evans had exhausted all available avenues of relief at the state level. Nevertheless, the magistrate issued a Report and Recommendation recommending that the petition be denied for failure to exhaust state remedies. Evans filed timely objections, but the district court summarily adopted the magistrate's Report and Recommendation and dismissed the petition without prejudice for failure to exhaust state court remedies. Thereafter, the district court issued a memorandum opinion overruling Evans's objections to the magistrate's report and again dismissing Evans's petition without prejudice. Evans v. Court of Common Pleas, No. 90-5036 (E.D. Pa. Dec. 19, 1990) (Memorandum Opinion).
In its opinion, the district court reasoned that Evans had failed to exhaust her federal constitutional claim in state court because "Evans did not claim constitutional error until her petition [for] allocatur [to the state supreme court]."*fn4 The district court also found that Evans still had the opportunity to present her federal claims to state court under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. (Purdon Supp. 1991). The court recognized that in Moore v. DeYoung, 515 F.2d 437, 443 (3d Cir. 1975), this court had left open the possibility that pretrial habeas review without exhaustion might be available if "extraordinary circumstances are present," but it rejected Evans's contention that the alleged potential violation of her constitutionally guaranteed right against double jeopardy rendered this case "extraordinary". The court grounded its decision in the interests of comity and stated that "there is no evidence that Evans is procedurally or otherwise foreclosed from asserting her double jeopardy claim at pretrial or in a collateral state court proceeding."*fn5
This court granted a certificate of probable cause under 28 U.S.C. § 2253, ordered a stay of the proceedings in the state court under 28 U.S.C. § 2251, and appointed counsel. The issue whether state remedies have been exhausted is subject to our plenary review. Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir. 1986).
In general, absent a valid excuse, a prisoner must first present all federal claims to the state court. 28 U.S.C. § 2254(b). The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting ...