Before: Becker, Chief Judge, Aldisert and Garth, Circuit Judges
The opinion of the court was delivered by: Aldisert, Circuit Judge.
On Appeal from the United States District Court for the Western District of Pennsylvania
Facing criminal charges at a preliminary hearing before a Commonwealth of Pennsylvania district Justice, John K. Henderson signed and filed a standard waiver of counsel form. He then petitioned the state court to allow him to proceed pro se, which was allowed without a recorded colloquy between Henderson and the Judge regarding the dangers of self-representation. Henderson was not represented by counsel at a subsequent pretrial hearing where he unsuccessfully moved to suppress his confession. He was represented by counsel at his trial, where a jury found him guilty of burglary, criminal conspiracy, criminal attempt to commit burglary and criminal mischief.
After failing to obtain relief from his conviction in the state court system, Henderson petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that his invalid waiver of counsel and subsequent lack of representation at the suppression hearing violated the Sixth Amendment. The district court denied relief and we granted a certificate of appealability. 28 U.S.C. § 2253(c)(2). We must consider two separate but related issues: First, did signing a standard waiver of counsel form at the preliminary hearing and later petitioning the court for permission to proceed pro se, by themselves, constitute a knowing, voluntary and intelligent waiver of his right to counsel at a subsequent suspension hearing? Second, if this did not satisfy Sixth Amendment waiver requirements and we grant a writ of habeas corpus, should the grant of the writ be conditioned on his receiving a new trial or merely a new suppression hearing? Before meeting these issues head-on, we must first decide whether his habeas petition was time-barred under provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and whether he exhausted state remedies before filing the Petition.
The district court had jurisdiction pursuant to 28 U.S.C. § 2241(a), and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A). Henderson's Notice of Appeal was timely filed. Rule 4, Federal Rules of Appellate Procedure. We will reverse and remand to the district court to issue the writ, conditioned on the Commonwealth affording Henderson a new suppression hearing and a new trial.
In April, 1992, the Waynesburg, Pennsylvania Police arrested Henderson for receiving stolen property in connection with the burglary of a clothing store. Once in police custody, Henderson confessed to the burglary of the clothing store and also to the attempted burglary of a hardware store a few months earlier. He was subsequently charged with both crimes.
Prior to the preliminary hearing on July 6, 1992, Henderson applied for and was appointed a public defender. Because this particular attorney withdrew from the representation prior to the hearing, he was represented at the hearing by another public defender, Elizabeth Haque. At this hearing, Henderson submitted a form entitled "Waiver of Counsel" to the district Justice. The standard form was filled out with Henderson's name, the charges of "Burglary, Criminal conspiracy, Criminal attempt, Criminal mischief & Criminal Conspiracy" and contains Henderson's signature below a series of pre-printed statements, including:
I, John Henderson , have been informed that I have the right to have a lawyer represent me, and if I cannot afford one, one will be afforded to me without cost. . . .
I, John Henderson , am a ware of the permissible range of sentences and/or fines for the offenses charged. . . .
I knowingly, voluntarily and intelligently waive these rights and choose to act as my own lawyer at this hearing/trial.
App. at 33. The district Justice signed the form under the statement, "I HAVE DETERMINED THAT THE DEFENDANT HAS MADE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL." Id.
On July 17, Henderson filed a "Petition to Proceed on own Behalf", which was granted by the trial court. It is unclear from the record whether Elizabeth Haque continued to serve as court-appointed stand-by counsel for Henderson after this point. Henderson next filed a pro se Motion to Suppress his confession, and after a suppression hearing on September 25 at which he represented himself, and at which Ms. Haque's presence is not apparent on the record, his Motion was denied. The court then appointed new counsel to represent Henderson at trial and the jury convicted Henderson on all counts. The trial court sentenced him to 5 to 20 years at Huntingdon State Correctional Institution.
Henderson appealed to the Pennsylvania Superior Court, alleging, inter alia, that he was denied the effective assistance of counsel at the suppression hearing. His conviction was affirmed and the Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal, which raised a violation of "the right to counsel." The Court of Common Pleas denied his Pennsylvania Post Conviction Relief Act Petition, 42 Pa. Cons. Stat. §§ 9541-9546, which also raised the deprivation of counsel issue.
Henderson gave his Habeas Corpus Petition, which was addressed to the federal district court in Pittsburgh and dated April 16, 1996, to Huntingdon SCI prison officials for delivery. The record does not disclose the precise date that his Petition was handed to the prison officials. The record does reveal that the district court clerk filed the Petition on April 25, one day after the effective date of the AEDPA amendments to the federal habeas corpus statute.
Our review of whether Henderson has exhausted his state remedies is plenary. See Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). Whether the AEDPA applies to this case, i.e., whether Henderson's Petition was pending on the AEDPA's April 24, 1996 enactment date, is a jurisdictional question subject to plenary review. See In re Flanagan, 999 F.2d 753, 756 (3d Cir. 1993). If we conclude that the AEDPA applies to Henderson's petition, then we may reverse the state court's denial of his Sixth Amendment claim only if the decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997). If the AEDPA's amendments to § 2254 do not apply, then we exercise simple plenary review. See Bey, 124 F.3d at 528.
The Commonwealth has suggested that Henderson's Petition was filed after enactment of the AEDPA, which amended the federal habeas statute in two respects relevant to this case: (1) the AEDPA provides for a one-year period of limitations to file § 2254 petitions, running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review", § 2244(d)(1)(A), and (2) it imposes a new, limited standard of review which restricts federal court action by requiring deference to the state court's legal resolution of the issue petitioned, § 2254(d).
For several discrete reasons, we are not impressed by the Commonwealth's tardy presentation of this argument which it neglected to present to the district court. First, we conclude that Henderson's Petition was timely filed prior to the effective date of the act, April 24, 1996, that therefore his Petition was pending on that date and that the AEDPA does not apply. See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997). We reach this Conclusion because we agree with Henderson's claim that he handed over his petition, which was dated April 16, 1996, to prison officials before April 24, 1996 and therefore it was timely filed. See Houston v. Lack, 487 U.S. 266, 276 (1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998) (the teachings of Houston--that delivery of a notice of appeal by a pro se prisoner to prison officials is tantamount to filing with the clerk of court--apply to filing a § 2254 habeas petition).
Putting aside that the Commonwealth failed to raise this issue before the district court, we are unable to accept its argument, somehow made with a straight face, that because the clerk received the transmittal from the prison on April 25, Henderson did not place it in the hands of the prison officials until the day before, to-wit April 24; that in a herculean burst of bureaucratic efficiency and postal service it was processed by the various levels of prison administration and delivered to the rural post office in Huntingdon, Pennsylvania that same day; that in lightning speed, the U.S. Postal Service carried it from Central Pennsylvania over the mountains to the Pittsburgh metropolitan distribution center--covering half the distance of the state--where, without any delay whatsoever, it was delivered to the district court clerk's office in Pittsburgh by the next morning. If the Commonwealth had introduced evidence to support this ambitious scenario, it might have received some favorable reception here. But no such evidence was submitted. And what we know as men and women about prison administrative procedures and the pace of U.S. Mail delivery, now described as "snail mail" by e-mail aficionados, we must not forget as Judges. We will not accept the Commonwealth's theory that we should employ a kind of judicial notice to accept its theory.
We recognize that "prison authorities are in a position to easily show when a document was received or mailed under established prison procedures for recording the date and time at which papers are received by prison officials in the prison's mail room." Flanagan, 999 F.3d at 757 (citing Houston, 108 S. Ct. at 2384). Thus, the Commonwealth should have been expected to support its untimeliness argument with prison logs documenting that Henderson deposited his Petition with prison authorities on April 24 or April 25, 1996. Absent such proof to the contrary, we conclude that Henderson's Petition, having arrived in Pittsburgh on April 25, must have been first delivered to prison authorities some time before April 24, and therefore should be deemed filed before the AEDPA effective date.
Because the AEDPA does not apply here, the one-year period of limitations of the amended § 2244(d) does not bar the Petition.*fn1 We repeat that, in this case, the Commonwealth had the burden of proving that the Petition had been delivered to prison authorities on April 24 and not before. It not only failed to meet its burden, it did not even see fit to raise this issue in the district court.
A federal court may not grant a writ of habeas corpus unless (1) "the applicant has exhausted the remedies available in the courts of the State", (2) no such state remedy is available or (3) available remedies are ineffective to protect the applicant's rights. 28 U.S.C. § 2254(b)(1). To exhaust the remedies available in the Pennsylvania courts, Henderson must first fairly present to the Pennsylvania courts all claims he will make in his Habeas Petition, in order to give the state courts "the `opportunity to pass upon and correct alleged violations of [his] federal rights.' " See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). Henderson raised one issue in his Petition to the district court: "Petitioner did not knowingly and intelligently waive his Sixth Amendment Right to Counsel." For Henderson to have "fairly presented" this issue to the Pennsylvania courts, his "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." See Doctor, 96 F.3d at 678 (quotation omitted).
The record clearly demonstrates that Henderson, following his conviction, "fairly presented" before each level of state court hierarchy the issue of the effectiveness of his waiver of counsel on his subsequent pro se representation at the suppression hearing. App. at 56, 61 (Superior Court of Pennsylvania); id. at 363 (Supreme Court of Pennsylvania); id. at 85 (Common Pleas Court of Greene County). Moreover, the Commonwealth conceded to the district court in its Answer to Henderson's Habeas Petition that "[t]he petitioner has exhausted his state remedies as to the issue of his right to counsel at the suppression hearing, albeit under the guise of an assertion of ineffective assistance of counsel." App. at 23.
Notwithstanding the district court's rather detailed analysis of the nuances of exhaustion--it construed Henderson's Petition as raising two Sixth Amendment violations, one at the preliminary hearing and another at the suppression hearing, and conducted a separate exhaustion analysis for each--we are satisfied that Henderson has fulfilled the exhaustion requirement. The Supreme Court has warned that Judges should not misread habeas petitions in order to split single claims and conduct separate exhaustion analyses for each. Engle v. Isaac, 456 U.S. 107, 124 n.25 (1982) ("A creative appellate Judge could almost always distill from these allegations an unexhausted . . . claim."). We read the record to indicate that Henderson was without counsel at only one critical stage of his criminal proceeding--the suppression hearing. His right to counsel at this juncture certainly could have been waived, but it is the government's burden to demonstrate that such a waiver was voluntary, knowing and intelligent. See Brewer v. Williams, 430 U.S. 387, 403 (1977). That the waiver analysis in this case involves two pieces of evidence at two different times--a waiver form signed by Henderson at the preliminary hearing and his motion to proceed pro se filed before the suppression hearing--does not transform the single, alleged constitutional deprivation into two separate ones.
Any doubt that Henderson raised only a single claim before the state courts and again in his Habeas Petition is answered by Henderson's Habeas Petition itself, which states as the single, simple ground for review,"Petitioner did not knowingly and intelligently waive his Sixth Amendment Right To Counsel." App. at 11. We reject the Commonwealth's attempt to split the claim for exhaustion purposes--right to counsel at the preliminary hearing and right to counsel at the suppression hearing--because it was the Commonwealth that broached the issue, notwithstanding Henderson's simple statement of the issue presented. See McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir. 1987). The legal memorandum Henderson submitted in support of his Petition clarified any ambiguity the district court may have had when he wrote of his "single constitutional issue" that "[t]he legal claim of invalid waiver of counsel at the preliminary hearing is precisely the same as invalid waiver of counsel at the suppression hearing."
What we said in McMahon, 821 F.2d at 941, may be reiterated to control the present matter:
Though appellant's petition may have been inartfully drafted, it was the Commonwealth, not the petitioner, that construed it as containing more than one claim. We find the record below reveals that [Henderson] clarified any ambiguity with respect to the Petition for a Writ of Habeas Corpus and adequately informed the court that the Petition contained only one issue.
Accordingly, we conclude that Henderson properly exhausted the issue of his right to counsel at the suppression hearing. We turn, then, to the merits of his Petition.*fn2
The Sixth Amendment provides, inter alia:"In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI; see Bey, 124 F.3d at 528. The right to counsel attaches at arraignment, extends through the first appeal and guarantees an accused the assistance of counsel at all critical stages of a proceeding. Michigan v. Harvey, 494 U.S. 344, 357 (1990). A pretrial hearing considering the suppression of the defendant's confession is such a critical stage because its "results might settle the accused's fate and reduce the trial itself to a mere formality." See id. at 358 n.5 (quoting United States v. Wade, 388 U.S. 218, 224 (1967)).
Concomitant with the right to be defended by counsel during criminal proceedings is the accused's right to waive counsel and proceed pro se. Faretta v. California, 422 U.S. 806, 821 (1975). In order to establish that Henderson validly waived his right to counsel, the Commonwealth bears the heavy burden of proving that the waiver was voluntary, knowing and intelligent. See Brewer, 430 U.S. at 403. The district court determined that Henderson validly waived his right to counsel, relying on (1) the waiver form which Henderson signed and filed with the district Justice at the preliminary ...