On Appeal from the United States District Court for the Western District of Pennsylvania
Before: SCIRICA, ROTH, Circuit Judges, and O'NEILL, District Judge *fn*
Filed September 24, 1996)
Petitioner Gary Doctor appeals the dismissal of his petition for a writ of habeas corpus. The court below dismissed the petition because: (1) Doctor failed to exhaust his state remedies; and (2) the Pennsylvania courts refused to consider the merits of his direct appeals based on an independent and adequate state procedural rule. We conclude that Doctor did not exhaust his state remedies and that it would not be futile to require him to raise his unexhausted claims under Pennsylvania's Post Conviction Relief Act. 42 Pa.C.S. Section(s) 9541-46 (Supp. 1996). Accordingly, we will affirm the district court's dismissal of Doctor's petition. Because Doctor may resubmit his petition with only exhausted claims we also address the district court's second basis for dismissing the petition and hold that the fugitive forfeiture rule as applied to Doctor was not an independent and adequate state procedural rule which would bar federal habeas corpus review.
Doctor was charged with aggravated assault in July, 1985. *fn1 On June 24, 1986, during the lunch recess of his criminal bench trial, and following the presentation of the Commonwealth's case, Doctor fled. Upon Doctor's failure to return, the trial court issued a bench warrant and recessed the proceedings. On August 29, 1986, the trial court entered a guilty verdict against Doctor, apparently without conducting any further proceedings or attempting to inform Doctor, his attorney or the Commonwealth about its intention to enter a verdict.
Doctor remained at large for over five years until he was arrested on January 25, 1992 in Butler County, Pennsylvania. On April 14, 1992, the trial court sentenced Doctor to a term of 49 to 98 months. On June 5, 1992, Doctor filed a pro se "Petition for Habeas Corpus" in the Pennsylvania Supreme Court, Appendix 279-284, which was denied on August 21, 1992. While that petition was pending, he filed a timely direct appeal to the Pennsylvania Superior Court. On May 13, 1993, the Superior Court, without reaching the merits of any of his claims, quashed Doctor's appeal pursuant to Pa.R.App.P. 1972(6). This fugitive forfeiture rule allows a Pennsylvania appellate court "to quash" an appeal "because the appellant is a fugitive." The Superior Court then denied Doctor's Application for Reargument. The Pennsylvania Supreme Court denied Doctor's Petition for Allowance of Appeal without opinion on November 29, 1993. Thereafter the United States Supreme Court denied Doctor's petition for a writ of certiorari.
On November 29, 1994, Doctor filed a pro se habeas corpus petition under 28 U.S.C. Section(s) 2254 in the United States District Court for the Western District of Pennsylvania. The district court, adopting the report and recommendation of a magistrate judge, dismissed Doctor's petition without considering its merits. Doctor filed a timely notice of appeal to this Court. On September 19, 1995, the district court granted Doctor's request for a certificate of probable cause to appeal and appointed counsel for him.
The district court had jurisdiction over this matter under 28 U.S.C. Section(s) 2254. We have jurisdiction under Section(s) 1291 and 2253. Our review of whether petitioner has exhausted his state remedies is plenary. Ross v. Petsock, 868 F.2d 639, 640 (3d Cir. 1989).
Generally, a Section(s) 2254 petition which includes any unexhausted claims must be dismissed without prejudice for failure to exhaust all state created remedies. Rose v. Lundy, 455 U.S. 509 (1982). To satisfy the exhaustion requirement the petitioner must present every claim raised in the federal petition to each level of the state courts. Picard v. Connor, 404 U.S. 270 (1971). The petitioner must afford each level of the state courts a fair opportunity to address the claim. Anderson v. Harless, 459 U.S. 4 (1982). The petitioner's state court pleadings and briefs must demonstrate that he has presented the legal theory and supporting facts asserted in the federal habeas petition in such a manner that the claims raised in the state courts are "substantially equivalent" to those asserted in federal court. Bond v. Fulcomer, 864 F.2d 306, 309 (3d. Cir. 1989). The state courts need not discuss or base their decisions upon the presented claims for those claims to be considered exhausted. Picard, 404 U.S. at 275.
The district court, adopting the findings of the magistrate judge, concluded that "Doctor's 6th Amendment claim was never presented to any Pennsylvania appellate court." Appendix at 301.
In his Section(s) 2254 petition Doctor asserts the following grounds for relief:
No record of trial of Absentia said to have been held on Aug. 29th 1986 - I was not convicted in a court of law - I was never told on record or otherwise I was found guilty - I was never given any appeal rights before or after sentencing. No attorney is on record to have represented me in the mysterious absentia trial held - the trial transcripts in my case stop on page 129 at which time case was continued generally, this was on June 25, 1986. The court docket shows a conviction date of 8/29/86 - written in on April 14, 1992 - The trial court Judge has written an opinion on Oct. 2, 1992 and cited cases (Com. v. Jones) 1992 and Com. v. lines, 609 A.2d 134 pa. Super 1992. These cases do not apply to me - but are only stated to keep another court from reviewing the record and transcript both which will reveal there was no trial of absentia on Aug. 29th, 1986 - my Rights to appeal is and has been obstructed by lower Court's false opinion and misconduct.