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
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was withdrawn by Judge Keogh and the trial terminated following the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
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
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
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.
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
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
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
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