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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 However, the waiver was withdrawn by Judge Keogh and the trial terminated following the Commonwealth's case-in-chief and during the defense's presentation of its case.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 ...

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