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HEISER v. RYAN

February 4, 1993

STEVEN ANTHONY HEISER, Petitioner,
v.
JOSEPH RYAN, Superintendent, and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents.



The opinion of the court was delivered by: GUSTAVE DIAMOND

DIAMOND, C.J.

 This case is a sobering reminder that justice is not always swift. Heiser's motion to withdraw his guilty plea has languished in the state trial court for more than twelve years. In addition, since his petition for a writ of habeas corpus was filed in this court in February, 1989, Heiser's case has visited the United States Court of Appeals for the Third Circuit and been remanded to us.

 I. Procedural Background

 Late in 1979, Heiser pled guilty to a charge of second degree murder for the shooting of an antique store proprietor and subsequently was sentenced to life imprisonment. In February, 1980, Heiser filed a motion to withdraw his guilty plea pursuant to Pa.R.Crim.P. 320. That motion has never been ruled upon. In 1987, Heiser filed a petition for post-conviction relief under the Pennsylvania Post Conviction Hearing Act ("PCHA"), 42 Pa.Cons.Stat.Ann. § 9541. That petition has never been ruled upon either. The instant petition for a writ of habeas corpus was filed in February, 1989.

 On June 28, 1990, this court adopted the report and recommendation of the United States magistrate judge to whom the matter had been assigned and denied Heiser's habeas petition without an evidentiary hearing. Relying on the record of the plea colloquy, the report and recommendation concluded that the record demonstrated that Heiser's guilty plea was voluntary. We agreed; the United States Court of Appeals for the Third Circuit did not. On appeal, the Third Circuit reversed and remanded for an evidentiary hearing on the allegations set forth in the petition. Heiser v. Ryan, 951 F.2d 559 (3d Cir. 1991). This court returned the case to the magistrate judge to conduct an evidentiary hearing and submit proposed findings of fact and recommendations for disposition. Order of Court, January 16, 1992.

 On September 21, 1992, following an evidentiary hearing and oral arguments, the magistrate judge filed a report and recommendation. He concluded that petitioner's due process rights had been violated by inordinate delays in judicial process and recommended that this court issue an order directing that Heiser be released unconditionally. Neither party filed objections to the report and recommendation. On December 14, 1992, this court held a de novo hearing on the matter for two reasons. First, the magistrate judge's report and recommendation does not set forth proposed findings of fact. Second, and more important, this court believes that the magistrate judge misconstrued the Third Circuit's opinion remanding the case.

 II. Sua Sponte Review of Magistrate Judge's Report and Recommendation

 At the outset, petitioner objects to the hearing conducted by this court and its sua sponte review of the magistrate judge's proceedings. According to petitioner, the Commonwealth waived review in the district court by failing to object to the magistrate judge's report and recommendation. Despite the Commonwealth's decision not to object, the court is nonetheless obligated under the circumstances to review the case.

 This case was referred to the magistrate judge in accordance with the Magistrates Act, 28 U.S.C. § 636, and Rules 8 and 10 of the Federal Rules Governing Habeas Corpus Cases in the United States District Courts [hereinafter "Habeas Rules"], as well as Rules 3 and 4 of the Local Magistrate Judges' Rules. Pursuant to the foregoing provisions, an Article III judge may designate a magistrate judge to conduct evidentiary hearings and submit proposed findings of fact and recommendations for the disposition, by a judge of the court, of applications for post-trial relief made by individuals convicted of criminal offenses. 28 U.S.C. § 636 (b)(1)(B); Habeas Rule 8(b). Because a magistrate judge is not an Article III judge, however, the Constitution requires review of a magistrate judge's actions in certain instances. See United States v. Raddatz, 447 U.S. 667, 681-82, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). Accordingly, the Magistrates Act provides:

 
Within ten days after being served with a copy [of the magistrate judge's proposed findings and recommendations], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

 28 U.S.C. § 636 (b); see also Habeas Rule 10. Under the foregoing provision, a district court must conduct a de novo review if a party objects to the magistrate judge's report and recommendation. However, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendation made by the magistrate" judge regardless of whether objections are made. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.) (dictum), cert. denied, 484 U.S. 837, 98 L. Ed. 2d 79, 108 S. Ct. 120 (1987). Accord Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) ("Even if neither party objects to the magistrate's recommendation, the district court is not bound by the recommendation of the magistrate."). Indeed, since any decision of a magistrate judge is ultimately the decision of the court referring the matter, Henderson, 812 F.2d at 878 (citing Mathews v. Weber, 423 U.S. 261, 271, 46 L. Ed. 2d 483, 96 S. Ct. 549 (1976) and Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir. 1983)), before this court will endorse a magistrate judge's report and recommendation it must give the matter "some reasoned consideration." Id. In a given case we will engage in a review commensurate with the dispositive significance of the magistrate judge's recommendation, the urgency of the matter, the complexity of the issues involved, and the requirements of a higher court's mandate.

 We believe that sua sponte review is necessary in this case because the magistrate judge misread the opinion of the Third Circuit. As explained below, the magistrate judge interpreted it to hold that the state's delay in deciding petitioner's motion to withdraw his guilty plea and his outstanding PCHA petition *fn1" constituted a denial of due process, in and of itself warranting habeas corpus relief, regardless of whether petitioner's ability to prove that his guilty plea was not knowingly and voluntarily made was impaired. In addition, the magistrate judge heard testimony on the voluntariness of petitioner's plea, but made no proposed findings of fact. The court believes that the Third Circuit's opinion requires this court on remand to generate a record dealing fully with the issues it addresses. Although we have the transcripts of the magistrate judge's hearing, voluntariness and the question of whether petitioner's ability to prove that his plea was coerced was impaired are largely credibility determinations. Because the parties contradict each other we thought it best to hear the testimony first hand. Cf. Grassia v. Scully, 892 F.2d at 19-20 (due process requires a district court rejecting a magistrate judge's credibility conclusions to hear live testimony of witnesses); Blizzard v. Quillen, 579 F. Supp. 1446, 1449 (D.Del. 1984) ("If a district judge resolves a credibility dispute differently than the magistrate, Article III and the due process clause usually require the court to conduct a fresh evidentiary hearing."). On December 14, 1992, we held an evidentiary hearing and allowed the parties to make oral arguments.

 III. The Law of the Case

 The court is acutely conscious of its duty in passing upon a case that has been remanded by the court of appeals. The Third Circuit recently reiterated the boundaries of that duty in Blasband v. Rales, 979 F.2d 324 (3d Cir. 1992):

 
It is axiomatic that on remand for further proceedings after decision by an appellate court, the trial court must proceed with the mandate and the law of the case as established on appeal. A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces. Where the reviewing court in its mandate prescribes that the court shall proceed in accordance with the opinion of the reviewing court, such pronouncement operates to make the opinion a part of the mandate as completely as though the opinion had been set out at length.

 Id. at 327 (quoting Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985) (citations omitted)). Accordingly, in deciding this case we look first to the mandate of the Third Circuit. The judgment, in lieu of formal mandate, reversed and remanded "for an evidentiary hearing on the allegations set forth in Mr. Heiser's Petition . . . . All of the above in accordance with the opinion of this Court." Judgment, No. 90-3434 (3d Cir. December 13, 1991). The interpretation of the Third Circuit's opinion has been troublesome and a matter of some debate.

 A. The Third Circuit Opinion

 In Part I of its opinion, Heiser v. Ryan, 951 F.2d 559 (3d Cir. 1991), the Third Circuit reviewed the underlying factual bases of the case and the procedural background of petitioner's attempts to withdraw his guilty plea through state and federal judicial process. The court noted that Heiser asserted two grounds for habeas corpus relief: (1) that his guilty plea was not knowing and voluntary because it was coerced, and (2) that his due process rights had been violated by excessive delay. Id. at 561.

 The court then turned in Part II to Heiser's contention that the guilty plea under which he is serving his life sentence was involuntary. In subpart A the court reviewed cases discussing the requirements for a valid guilty plea. Recognizing the influence that an attorney has over a client, the court held that "if Heiser's trial counsel threatened to withdraw from the case unless Heiser pleaded guilty, then his plea is involuntary . . . ." Id. at 562. In subpart B the court concluded that petitioner was entitled to a hearing on the voluntariness of the plea because our reliance on the trial court plea colloque was insufficient. An evidentiary hearing was required to give Heiser an opportunity to prove his allegations of coercion and to rebut the presumed validity of the plea colloquy. Id.

 The circuit addressed petitioner's due process theory for habeas relief in Part III of its opinion. There it observed that delays in post-verdict process may violate the Due Process clause and instructed this court to decide on remand whether the state's failure to adjudicate Heiser's motion to withdraw his guilty plea warranted habeas corpus relief. Id. at 563. In doing so, the court instructed us to apply the factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972): length of delay, reason for delay, defendant's assertion of his rights, and prejudice to the defendant. The court unequivocally stated that the first three factors weighed in favor of Heiser. 951 F.2d at 563. *fn2" Yet the lack of evidence in the record of prejudice to Heiser prevented the court from granting relief and required it to remand the case for an examination of whether Heiser was prejudiced by the delay. Id. at 563-64.

 Finally, in Part IV the Third Circuit set forth detailed instructions for us to follow on remand. Those directions require us to first determine whether Heiser's guilty plea was involuntary or whether there is any other "fair and just" reason for withdrawal of the plea. If Heiser makes a prima facie showing that withdrawal was proper, the Commonwealth must come forward and prove that it would have been substantially prejudiced by withdrawal at the time withdrawal otherwise would have been appropriate. If it appears that withdrawal was or now is appropriate, in order to prevent this court from granting Heiser's unconditional release, the Commonwealth would then have to prove that delay has not impaired Heiser's ability to mount a defense at trial. Finally, if Heiser establishes his right to a writ of habeas corpus, we are instructed to decide what relief would be appropriate.

 Upon receiving the court's opinion, we remanded the case to the magistrate judge for the evidentiary hearing required by the circuit.

 B. The Magistrate Judge's Interpretation of the Third Circuit Opinion and His Report and Recommendation

 The magistrate judge held an evidentiary hearing and filed a report and recommendation. The magistrate judge correctly interpreted the Third Circuit's opinion as holding that there were alternative grounds upon which Heiser's release could be based. That is, the court held that Heiser's petition should be granted if his guilty plea was involuntary or if his due process rights have been violated by the Commonwealth's failure to decide his motion to withdraw his guilty plea. However, in Part IIA of his report and recommendation, the magistrate judge rejected the Commonwealth's argument that petitioner was not prejudiced by the mere failure to decide his motion to withdraw the guilty plea unless the plea was indeed involuntary. Instead, the magistrate judge concluded that whether petitioner's plea was knowingly and voluntarily made was not a threshold question in the analysis of the due process claim. He wrote:

 
The Due Process Clause of the Fourteenth Amendment does not guarantee a defendant a favorable decision, but it does guarantee a timely decision, favorable or not. Restated, if the Fourteenth Amendment due process of law clause means that a criminal defendant has a right to have a properly presented motion decided without undue delay, neither law nor logic conditions that right upon the motion being meritorious. To add that element to the analysis would render the due process protections against undue delay, [sic] illusory.
 
We conclude that petitioner's due process right to a timely decision, [sic] is not conditioned on his motion having substantive merit anymore than a citizen's constitutional protection against unlawful searches and seizures is conditioned on his not possessing contraband. Therefore, we find it unnecessary to determine as a threshold matter whether petitioner's guilty plea was knowingly and voluntarily made. The state's inordinate delay in deciding that question, itself, stands as an independent ground for habeas relief, irrespective of the merit of the underlying undecided motion.

 Magistrate Judge's Report and Recommendation, September 21, 1992, at 5. Accordingly, the magistrate judge did not propose findings of fact on the voluntariness of Heiser's guilty plea, despite hearing testimony on the matter.

 Having decided that delay alone was a sufficient ground for relief, the magistrate judge then turned to examine whether Heiser's due process rights were violated by the extreme delay in deciding his motion. The magistrate judge began his analysis with the four Barker v. Wingo factors. Because the court of appeals had conclusively addressed the first three factors, the magistrate judge turned directly to the question of whether petitioner was prejudiced as a result of the delay by the state court in failing to decide his motion to withdraw his guilty plea. He relied on Doggett v. United States, 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992), for the proposition that there is a presumption of prejudice inherent in a delay of more than twelve years. Doggett, which was decided several months after the Third Circuit's ruling in Heiser, held that an eight-and-a-half year delay between indictment and arrest presumptively violates the Sixth Amendment speedy trial clause because it "compromises the reliability of a trial in ways that neither party can prove . . . ." Magistrate Judge's Report and Recommendation, September 21, 1992, at 5. Accordingly, the magistrate judge did not propose findings of fact on the voluntariness of Heiser's guilty plea, despite hearing testimony on the matter. Id. at 531. Alternatively, the magistrate judge found that evidence of prejudice was extant in the record: first, petitioner testified to emotional distress and physical ailments arising from the excessive delay; second, petitioner was effectively denied his right of appellate review; and third, petitioner's defense upon retrial had been impaired. The magistrate judge did not address whether Heiser's opportunity to prove the involuntariness of his plea was depreciated by the delay. The report and recommendation concluded that petitioner was entitled to habeas corpus relief under Barker v. Wingo.

 In Part IIB of his report and recommendation, the magistrate judge considered the type of relief which would be appropriate. He concluded that permitting Heiser to withdraw his guilty plea and stand trial would not vindicate his rights; rather, it would itself constitute a further violation thereof. The magistrate judge concluded: "The twelve year delay in this case is so egregious and unwarranted, [sic] that there is no alternative remedy which could vitiate the prejudice of fundamental fairness. Petitioner should be granted an unconditional discharge from state custody." Magistrate Judge's Report and Recommendation, September 21, 1992, at 11 (citation omitted).

 C. The Court's Interpretation

 The court differs in some respects with the magistrate judge's interpretation of the Third Circuit's opinion. The circuit remanded petitioner's case to us for two reasons: (1) we had not held an evidentiary hearing on Heiser's contention that his guilty plea was coerced; and (2) we had not addressed Heiser's claim that his due process rights had been violated by the Commonwealth's failure to adjudicate his petition to withdraw his guilty plea. After discussing each of Heiser's claims separately in Parts II and III of its opinion, the court, in our view, merged them in Part IV to provide us with an integrated model for analysis on remand. The court instructed us to

 
determine [1] whether Heiser's trial counsel made the alleged threat to withdraw and, if so, whether the threat was coercive under the totality of the circumstances surrounding the trial and Heiser's decision to plead guilty and [2] whether Heiser has demonstrated any other "fair and just" reason to permit him to withdraw his guilty plea.

 951 F.2d at 564. The answer to the first question will determine whether Heiser's plea was valid in accordance with the requirements set forth in Part II of the court's opinion. The second question conceptualizes petitioner's due process claim, as described in Part III. "If Heiser can show a 'fair and just' reason to withdraw his guilty plea, then withdrawal is and was proper and he has been denied due process. . . ." Id. (emphasis added).

 This reading recognizes the dictates of Part IV while giving full effect to the principles discussed in Parts II and III. The model requires us to determine first whether Heiser's guilty plea was involuntary. If so, we are instructed to go on to the next steps to determine what remedy will redress Heiser's confinement under an invalid guilty plea. *fn3" As set forth below, this court has found that Heiser's plea was voluntary. Accordingly, we move to the second potential ground for relief: whether Heiser has demonstrated some ...


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