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United States District Court, E.D. Pennsylvania

February 17, 2004.

MARK GREEN, a/k/a, MARK WALLACE a/k/a, MARK BROWN, Plaintiff,

The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge


This case comes before the Court as a writ of habeas corpus brought under 28 U.S.C. § 2254. The underlying conviction giving rise to the custody of Mark Green (hereinafter "petitioner") occurred on September 8, 2000, when a jury sitting in the Philadelphia Court of Common Pleas found petitioner guilty of one count of conspiracy to commit arson. As set forth in the amended petition, petitioner's claim for habeas relief is based on the alleged ineffective assistance of his counsel to recognize and object to a double jeopardy violation which arose during the jury trial. For the following reasons, the petition shall be denied without prejudice. The Court finds that petitioner has failed to exhaust the remedies available to him at the state level and will not excuse the exhaustion requirement found in 28 U.S.C. § 2254(b) based on delay asserted by the petitioner to be Page 2 inexcusable or inordinate.


  Some ten months prior to the jury trial where petitioner was found guilty, a waiver trial — involving the same charges that petitioner was ultimately found guilty of by the jury sitting in 2000 — was held in December of 1999 in the Philadelphia Court of Common Pleas and was presided over by the Honorable D. Webster Keogh. However, the waiver was withdrawn by Judge Keogh and the trial terminated following the Commonwealth's case-in-chief and during the defense's presentation of its case. This termination was predicated upon a procedural violation made by the defense in the timing of the disclosure of an alibi witness.

  In the case at bar, petitioner asks this Court to entertain his claim that he is in custody in violation of the U.S. Constitution because of the ineffectiveness of his trial counsel during both the jury trial and the waiver trial. Specifically, petitioner asserts that his counsel failed to challenge the judge's withdrawal of the waiver during the first trial and failed to assert a double jeopardy defense — based on the judge's allegedly improper withdrawal of the waiver during the waiver trial — during the jury trial.

  The Commonwealth, meanwhile, argues that petitioner has Page 3 failed to exhaust his remedies at the state level and that, therefore, this Court should decline to consider the amended petition on the merits. In addition, the Commonwealth argues that petitioner's constitutional rights were not violated because petitioner's counsel was not ineffective and because there was no underlying double jeopardy violation.

  It is clear from the record that the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania have not yet been presented with petitioner's direct appeal of the conviction. Thus, as a threshold matter, the Court must decide whether it should excuse the failure of petitioner to exhaust his remedies at the state level. Only if the Court decides this issue in favor of the petitioner will the Court turn to the underlying merits of the habeas corpus petition.


  A. Exhaustion of State Remedies is Required.

  Absent a valid excuse, a habeas petitioner must exhaust his remedies at the state level before asserting his claims in federal court. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515 (1982). "[E]xhaustion is not jurisdictional, but a matter of comity." Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994). "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state Page 4 convictions and preserves the role of the state court in protecting federally guaranteed rights." Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992) (citing O'Halloran v. Ryan, 835 F.2d 506, 509 (3d Cir. 1987)); see also Rose, 455 U.S. at 515. However, "inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable." Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d. Cir. 1986). "When such delay has rendered the State remedy ineffective to protect the rights of the petitioner," the district court may excuse the exhaustion requirement. Id.

  In petitioner's view, the Court should excuse the exhaustion requirement because of the delay between his conviction and sentencing and the subsequent delay between sentencing and appellate review of his conviction. The relevant periods of time referred to by petitioner are as follows: (a) a nineteen month period between conviction on September 8, 2000 and sentencing on April 12, 2002; (b) a period of ten months following sentencing and disposition of his motion for reconsideration of post-trial motions, which was denied on March 13, 2003; (c) an additional period of time between the filing of a notice of appeal and presentation of the appeal before the Superior Court. In total, as of the writing of this opinion, some forty-one months have elapsed since petitioner's conviction Page 5 and the Superior Court has not yet ruled on petitioner's direct appeal.

  B. Chronology of Events Following Petitioner's Conviction.

  To better understand the circumstances surrounding the various delays, a chronology of events beginning with petitioner's conviction is provided in seriatim:

1. Petitioner is convicted by a jury in the Philadelphia Court of Common Pleas on September 8, 2000 for conspiracy to commit arson. The trial is presided over by the Honorable Gary F. Divito. Sentencing is set for October 25, 2000.
2. On October 25, 2000, a continuance of the sentencing hearing, to November 22, 2000, is granted because of the failure of the Commonwealth to bring the petitioner in from custody.
3. On November 22, 2000, another continuance of the sentencing hearing is granted to January 24, 2001. The court docket notes indicate that the continuance was granted at the request of the defense. Once again, however, petitioner was not brought down to the courthouse.
4. A continuance to February 5, 2001 "per chambers" is ordered on January 24, 2001.
  5. On February 5, 2001, a continuance to March 9, 2001 is granted at the request of defense counsel. The court docket notes that "petitioner was brought down today" (emphasis in Page 6 original). However, petitioner represents that there was no colloquy to determine if petitioner consented to the continuance.


6. On March 9, 2001, yet another continuance to April 20, 2001 is issued because petitioner was not brought down to the courthouse.
7. On April 17, 2001, petitioner files post-verdict motions raising issues of double jeopardy, insufficiency of evidence, prosecutorial misconduct, and erroneous jury instructions.
8. On April 20, 2001, petitioner was not brought down to the courthouse for a scheduled hearing. A continuance until June 4, 2001 is granted.
9. Petitioner files a supplemental post-verdict motion on May 29, 2001.
10. A second continuance from chambers is issued by the judge on June 4, 2001. A hearing is set for June 29, 2001 at this time.
11. On June 29, 2001, petitioner is brought down to the courthouse, but his counsel requests a continuance for "argument and sentencing."
  12. On August 20, 2001, the petitioner files a motion to proceed pro se based on his counsel's request for continuances, which the petitioner represents were unauthorized. Page 7 Following a hearing on the matter, the court permitted petitioner's counsel to withdraw and appointed Murray B. Dolfman, Esq. to represent the petitioner. Sentencing is continued until September 19, 2001.


13. A continuance until September 28, 2001 is issued by the court on September 19, 2001 because the "judge [was] not sitting". On September 28, 2001, another continuance is ordered "per chambers" to October 26, 2001. At this point, over one year has elapsed since petitioner's conviction. 14. Defendant files another post-verdict motion on October 9, 2001.
15. On October 26, 2001, sentencing is continued again because defendant's post-verdict motions were not briefed by the Commonwealth. The Commonwealth was ordered to file briefs by November 14, 2001 and the hearing continued to November 30, 2001.
16. On November 30, 2001, the prosecuting attorney fails to make his appearance in the hearing. Because an assistant prosecuting attorney is not prepared to address the post-trial motions, the hearing is continued to January 18, 2002.
17. There is no docket entry for January 18, 2002, but on February 5, 2002 the case is continued "per chambers" to March 8, 2002.
  18. Petitioner files a petition for writ of habeas corpus in the Page 8 Superior Court on February 6, 2002. The petition is denied on March 6, 2002 by the Superior Court without review of the merits. According to the order denying the petition, the Supreme Court has original jurisdiction to issue a writ on the lower court where no appeal is pending.


19. On March 8, 2002, Mr. Dolfman is allowed to withdraw. Eugene P. Tinari, Esq. makes an appearance on behalf of petitioner. The petitioner is not brought down again and sentencing is deferred until April 12, 2002.
20. Mr. Tinari is permitted to withdraw his appearance on March 14, 2002 and Mr. Dolfman, having withdrawn once already, is reinstated.
21. On April 9, 2002, petitioner files an Application for Extraordinary Relief in the Supreme Court of Pennsylvania. The Application is denied, without opinion, by the Supreme Court on July 22, 2002.
22. On April 12, 2002, the Honorable Rose Marie DeFino, sitting in place of Judge Divito, denies petitioner's post-trial motions and sentences the petitioner. On April 16, 2002, petitioner files a motion for reconsideration of sentence and post-sentence motions. A June 7, 2002 hearing date is set to consider the motion for reconsideration.
  23. Petitioner is not brought down to the courthouse on June 7, 2002 and July 23, 2002 necessitating a continuance on each Page 9 occasion.


24. On July 31, 2002, petitioner files the instant habeas corpus petition. Petitioner asserts, as grounds for habeas relief, violations of his constitutional rights to a speedy trial, due process, and prohibition against double jeopardy. Petitioner also asserts insufficiency of evidence, prosecutorial misconduct and abuse of discretion and judicial error.
25. This court refers the case to a magistrate judge on August 12, 2002.
26. On September 25, 2002 and October 28, 2002, petitioner is not brought down to the courthouse for hearings on his post-trial motions and the case is continued on each of these occasions.
27. On December 19, 2002, Mr. Dolfman is once again permitted to withdraw and a third attorney, William Cannon, Esq., enters an appearance on behalf of petitioner. Petitioner is not brought down this day due to "joint state/federal custody issues."
  28. Petitioner, under the name of Mark Green, files a second habeas corpus petition, no. 03-95, on January 8, 2003. The case is assigned to the Honorable Jay C. Waldman, who dismisses the petition on January 30, 2003 without prejudice. Page 10


29. On January 23, 2003, a continuance is granted because Mr. Cannon is on trial elsewhere.
30. On February 12, 2003, petitioner's motion for reconsideration is denied by operation of law pursuant to Pa. R. Crim. P. Rule 720. A notice of appeal is timely filed on March 12, 2003. Twenty-nine months have elapsed since petitioner's conviction.
31. Another habeas petition under the name of Mark Brown is filed by petitioner on March 25, 2003 and docketed as no. 03-1741. The Honorable Edmund V. Ludwig denies the petition with prejudice as successive to the instant petition.
32. Judge Divito issues an order pursuant to Pa. R. App. P. Rule 1925(b) on May 22, 2003 requiring petitioner to file a concise, self-contained and intelligible statement of the appeal.
33. Petitioner files a Rule 1925(b) statement on June 4, 2003.
34. The magistrate judge handling the instant habeas petition, after granting the Commonwealth numerous extensions to file a response, issues a report and recommendation on August 19, 2003 recommending that the petition be denied for failure to exhaust state remedies.
  35. On October 27, 2003, petitioner writes Judge Divito requesting that an opinion be filed so that the appellate process may go forward. Page 11


36. Judge Divito responds to petitioner's letter on November 4, 2003 and indicates that because he was not the sentencing judge, he is not responsible for the final disposition of the case. Also on this date, this Court orders the appointment of counsel to represent petitioner in the instant habeas corpus proceeding.
37. Petitioner files a motion for bail in this Court on December 23, 2003. Following a hearing, this Court denies the motion for bail on January 26, 2004 and a hearing on the amended petition is scheduled for February 6, 2004.
38. On January 14, 2004, the Superior Court of Pennsylvania orders that Judge Devito file an opinion pursuant to Rule 1925(a), that the trial court transmit the record in the matter to the Prothonotary of the Superior Court, and that the Prothonotary of the Superior Court establish a briefing schedule.
39. Judge Devito files an opinion responsive to petitioner's Rule 1925(b) statement on February 3, 2004.
40. A hearing is held in this Court on the instant amended petition on February 6, 2004.
C. Analysis of the Delay.
  Before going any further, the Court notes the Third Circuit's teaching that, "[a]lthough the existence of an inordinate delay does not automatically excuse exhaustion, it Page 12 does shift the burden to the state to demonstrate why exhaustion should still be required — a burden that is difficult." Story, 26 F.3d at 405. Thus, for the purposes of analyzing the issue of whether or not to excuse the exhaustion requirement, the Court shall (a) first, determine if petitioner has established the existence of inordinate delay; and (b) then, determine if the Commonwealth has demonstrated why exhaustion should still be required.

  1. Petitioner's Burden to Establish the Existence of Inordinate Delay.

  As noted, petitioner argues that the various delays following his conviction should excuse the exhaustion requirement because they rise to the level of inordinate or inexcusable delay.*fn1 According to petitioner, the causes for the delays are Page 13 mostly attributable to the Commonwealth. Petitioner specifically points to the Commonwealth's repeated failures to bring down the petitioner to the courthouse for scheduled sentencing hearings and post-verdict motion hearings, the numerous continuances ordered "per chambers," and the continuance requested by the Commonwealth caused by the lack of preparedness of the district attorney. In addition, petitioner argues that the continuances requested by his own counsel should be chargeable to the government because these continuances were requested outside of petitioner's presence and without his consent and approval. The only period of delay in the chronology provided above which the petitioner does not charge to the Commonwealth is the delay between January 23, 2003 to February 12, 2003 (nineteen days), which was necessitated by petitioner's counsel's appearance before another court in a separate matter.

  The Commonwealth generally accepts petitioner's chronology as factually accurate, but disagrees with the petitioner's characterization as to who should be charged for the various delays. Specifically, the Commonwealth, citing Barker v. Wingo, 407 U.S. 514, 530 (1972), contends that the failure to bring down the petitioner from the prison to the courthouse was unintentional and the lack of mens rea on the Commonwealth's part should be factored into the Court's analysis as to whether the delay was inordinate or excusable. Relying on Wells v. Petsock, Page 14 941 F.2d 253, 257 (3d Cir. 1991), the Commonwealth also argues that petitioner's lack of consent to the continuances requested by his counsel should not be factored into this Court's calculus in determining whether or not to excuse exhaustion. In the Commonwealth's view, Wells stands for the proposition that motions for continuance may be granted outside the defendant's presence. Finally, the Commonwealth asserts that the petitioner is not completely faultless because the numerous withdrawals and appearances by different counsel were allegedly made at petitioner's behest.

  At the outset, it should be noted that the Commonwealth's reliance on Barker is misguided because that case involved a speedy trial violation and the threshold question of whether or not to excuse exhaustion is separate and distinct from the issue of whether or not a speedy trial violation has occurred. In Barker, instead of adopting an inflexible fixed-time period approach or a demand-waiver rule, the Supreme Court adopted a balancing test in which the conduct of both the defendant and the prosecution are weighed in determining whether or not a violation had occurred for speedy trial purposes. 407 U.S. at 529-30. According to the Court, factors which might be considered are the length of delay, the reason for delay, the defendant's assertion of his right, and prejudice to the defendant. Id. at 530. Although the Commonwealth argues Page 15 otherwise, the Barker factors have not been applied in this circuit for determining whether or not the exhaustion requirement should be excused in a habeas petition. See, e.g., Wojtczak, 800 F.2d at 354-55; Story, 26 F.3d at 405-06; Cristin v. Brennan, 281 F.3d 404 (3d Cir. 2002).

  Even if the Court were to apply Barker here, the Third Circuit has indicated that delays attributable to the court are to be charged against the Commonwealth for the purposes of analyzing speedy trial delays. See Burkett v. Fulcomer, 951 F.2d 1431, 1439-40 (3d Cir. 1991) ("The reason for the additional delay — crowded court calendars and the court reporter's delay in filing transcripts — must be weighed against the government rather than Burkett."). Thus, Barker does not advance the Commonwealth's position.

  In Wells, The Third Circuit explicitly did not decide the issue of whether or not a defendant's counsel could waive a defendant's right to a speedy trial without his defendant's personal consent. 941 F.2d at 256-57 (stating that "we do not need to decide whether this right [to a speedy trial] is so fundamental and personal that it can be waived only with the defendant's personal consent"). Instead, that court indicated that "[w]hen the reason for the delay originates with the defendant or his counsel, such delay will not be considered for purposes of determining whether the defendant's right to a speedy Page 16 trial has been infringed." Id. at 258. Again, the analysis in the case cited by the Commonwealth relates to a speedy trial delay, which is not the issue before the Court at this time.

  The most relevant Third Circuit case based on its factual similarity and on-point analysis of the very legal issues raised in the case at bar is Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987). In this appeal, Wayne Paul Burkett filed two habeas corpus petitions in federal court in the Western District of Pennsylvania. The first petition was based on a November 1981 conviction (nos. 140/141) and a January 1982 conviction for a separate crime (no. 161). Id. at 1211. The second petition was based on a January 1983 conviction (no. 284). Id. at 1212. As of March 1985, Burkett had not been sentenced in any of his three convictions because post-verdict motions in no. 161 and no. 284 had been briefed but not argued, and briefing had not been scheduled in nos. 140/141 because no transcripts were filed. Id.

  Burkett filed a federal habeas corpus petition in March of 1985. The district court adopted the report and recommendation of the magistrate judge and excused the exhaustion requirement because of inordinate delay, but proceeded to deny the petition unless the Commonwealth sentenced the petitioner within sixty days of the date of its opinion (i.e., May 30, 1985). Id. at 1213. A certificate of probable cause to appeal was denied "without prejudice to filing a new petition in the Page 17 district court." Id.

  On April 2, 1985, the state court denied Burkett's post-trial motions in no. 284 and sentenced him on June 24, 1985. Id. at 1213. The records for no. 284 were transferred to the Superior Court on January 2, 1986. Id. at 1215. The case was remanded to the trial court for thirty days so that new counsel could be appointed and after counsel was appointed on April 9, 1986, the record returned to the Superior Court on July 16, 1986. Id. The Superior Court denied the appeal on January 12, 1987 and denied rehearing on February 26, 1987. Id.

  In no. 161, Burkett's post-verdict motions were denied on June 7, 1985 and sentencing took place on July 10, 1985. An opinion on post-verdict motions was filed on May 8, 1987, but a sentencing opinion was not filed at the time of the opinion. Id. at 1215.

  As for nos. 140/141, a hearing on post-verdict motions was held on August 21, 1985 despite the failure of the court reporter to produce trial transcripts. Id. At the time of the Burkett opinion, no ruling had been made on the motions in conviction nos. 140/141 and sentencing had not yet occurred. Id. The final trial transcript was filed on October 22, 1985, but as of the time of the opinion, a hearing on the post-verdict motions had not been held. Id.

  Although the Burkett decision was filed by the Third Page 18 Circuit in July 1987, the court found that the delay as of May 1985 "was already sufficient to excuse exhaustion." Id. at 1218. As of May 1985, approximately forty-two months had elapsed since the conviction in nos. 140/141 and approximately forty-months had elapsed since the conviction in no. 161. Twenty-seven months had elapsed since the conviction in no. 284.

  Notwithstanding its finding as to the progression of the three convictions in May 1985, the Burkett court dismissed no. 284 for failure to exhaust state remedies explaining that the case "now appears to be proceeding normally." Id. at 1218 (emphasis added). As for conviction nos. 140/141 and no. 161, however, the court found that there was "no indication that the Pennsylvania appellate courts [would] soon receive 140/141 or that they will soon dispose of 161. . . ." Id. "Because of the continued delay" in these two cases, the court found that "Burkett ha[d] exhausted his state remedies in this proceeding." Id.

  Turning to the case at bar, the Court notes that there was a nineteen month delay between petitioner's conviction and sentencing and an additional ten month delay between sentencing and final disposition of his post-trial motions. The total delay between conviction and final disposition of petitioner's post-trial motions was approximately twenty-nine months, which is approximately two months longer than the twenty-seven month delay Page 19 between conviction and final disposition of Burkett's post-trial motions in no. 284, which the Third Circuit found to be sufficient to excuse exhaustion as of May 1985.

  The Court agrees with the petitioner and finds that a great deal of the delay between conviction and sentencing is attributable to the Commonwealth's repeated and inexcusable failures to bring down the petitioner to the courthouse for scheduled hearings and unexplained continuances granted "per chambers." Despite the Commonwealth's arguments to the contrary, the Court will not charge the time caused by the change of counsel to the defendant unless there is evidence that the petitioner himself caused the delay. See Wojtczak, 800 F.2d at 354-55. Indeed, an argument may be made that the delay caused by the change of counsel may be attributable to the Commonwealth because of the trial court's inexplicable "willingness to permit appointed counsel to withdraw at will." Id. Further, petitioner has represented to the Court that the continuances requested by his counsel were without his consent and approval and that on this basis, petitioner sought to have counsel replaced. The Commonwealth has not made any showing contradicting this assertion and, therefore, the Court will not count this time against the petitioner. Id.

  On numerous occasions again after the filing of the motion to reconsider, the Commonwealth failed to bring down the Page 20 petitioner to the courthouse for scheduled hearings, including appearances scheduled for June 7, 2002, July 23, 2002, September 25, 2002, October 28, 2002, and December 19, 2002, a period spanning nine months. It was not until February 12, 2003, that petitioner's motion for reconsideration was denied by operation of law pursuant to Pa. R. Cr. P. Rule 720.

  Because the delay between conviction and final disposition of petitioner's post-trial motions is sufficiently close to the delay found to be inexcusable in no. 284 of Burkett, the Court concludes that, as of February 12, 2003, the date on which petitioner's post-trial motions were finally decided, the delay was both inexcusable and inordinate.*fn2

  2. The Commonwealth's Burden to Establish Why Exhaustion Should Not be Excused.

  As noted, once a habeas petitioner has established inordinate and inexcusable delay in the state processes, the burden shifts to the Commonwealth to establish why exhaustion should not be excused. Story, 26 F.3d at 405.

  Petitioner filed his notice of appeal in March of 2003, but as of May of 2003, petitioner had not yet filed a statement Page 21 pursuant to Pa. R.A.P. Rule 1925(b), which was necessary for his appeal to move forward. Thus, Judge Divito ordered petitioner to file a statement on May 22, 2003. Two weeks later, petitioner filed a statement, but his appeal could not proceed because an opinion had not been filed by the judge presiding over his case. See Pa. R.A.P. Rule 1925(c). It was not until late October of 2003, that petitioner addressed this issue and wrote the presiding judge to request that an opinion be issued. After some confusion about whether the presiding judge (Judge Divito) or the sentencing judge (Judge DeFino) should prepare the opinion and some back and forth between petitioner's counsel and the presiding judge, the Superior Court, upon motion, ordered Judge Divito to prepare and file an opinion on January 14, 2004. Judge Divito filed his opinion on February 3, 2004.

  In light of the events following the disposition of petitioner's post-trial motions and the subsequent efforts made by the trial judge and the Superior Court to advance the case, the Court finds that the Commonwealth has met its burden of establishing why exhaustion should not be excused. The Third Circuit has "instructed district courts to stay their consideration of habeas petitions when previously stalled state proceedings resume." Cristin, 281 F.3d at 411 (citing Walker, 53 F.3d at 615)).

  Following the notice of appeal, the trial judge ordered Page 22 petitioner to file a statement of the case, the Superior Court ordered the judge to prepare an opinion (which according to the Commonwealth is a routine practice), and the trial judge has filed an opinion. Once triggered, all these events appear to have occurred consistent with established practice and the Pennsylvania Rules of Appellate Procedure.

  Based on this activity, the Court finds that the case "now appears to be proceeding normally." Burkett, 826 F.2d at 1218. Moreover, unlike no. 161 of Burkett, where the Third Circuit excused exhaustion, an opinion by the trial judge in this case was filed by the time a hearing was held. Unlike nos. 140/141 of Burkett, which were also excused from the exhaustion requirement, sentencing has occurred and post-trial motions have been ruled on in this case. Finally, an order directing the Prothonotoary to transmit the entire record and to schedule briefing is in place, and this Court has no reason to believe that this order will not be followed.

  At this point, all the pieces for disposition of the direct appeal appear to be in place. The Commonwealth has indicated that petitioner may file a motion for expedited review of the case and has expressed to this Court on two different occasions that it would not oppose such a motion. Given these circumstances, the Court will not interfere with the normal state appellate process in the absence of continued delay. Page 23


  The Court finds that the petitioner has failed the exhaust the state remedies available to him for review of his conviction. The Court also finds that the exhaustion requirement need not be excused in this case because the case appears to be progressing along normally at this point. Therefore, the case shall be dismissed without prejudice.

  An appropriate order follows.


  ___ AND NOW, this day of February 2004, pursuant to the accompanying memorandum, the amended petition for habeas corpus (doc. no. 55) shall be DENIED WITHOUT PREJUDICE.


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