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WASHINGTON v. SOBINA

April 6, 2004.

RICHARD A. WASHINGTON
v.
RAYMOND J. SOBINA, et al



The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge

REPORT AND RECOMMENDATION

This case involves a petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. The case has a lengthy and unusual state procedural history. As will be seen, the petitioner is awaiting his third retrial on the unresolved charges that remain from the prosecution that has resulted in his filing this habeas petition. Because charges are still pending against the petitioner, the Court of Common Pleas for Philadelphia County has not provided this court with the state court record. Lacking the state court record, the court has relied upon the briefs the parties have submitted and the records the District Attorney for Philadelphia County has provided the court. After reviewing the parties' submissions, the court has been able to piece together what has transpired in this long prosecution.

On December 18, 1995, the petitioner was arrested based on charges that he kidnaped Asha Woodall and shot Anthony Carney on February 17, 1994.*fn1 These crimes took place in Philadelphia County. Mr. Carney, known as Tone, died of his wounds while in the hospital on February 23, 1994. In July and August 1997, the petitioner faced his first trial for these charges. On August 6, 1997, a mistrial was declared.

  The petitioner was tried again in December 1998. This time, the jury convicted him on one count of criminal conspiracy, one count of possession of an instrument of crime and one count of robbery of a motor vehicle. The petitioner was acquitted on the charge of first degree murder, one count of criminal conspiracy, and counts of making terroristic threats, robbery and burglary. The jury was unable to reach a verdict on the lesser degrees of murder and the kidnaping charge. On February 16, 1999, the petitioner was sentenced to a term of incarceration of five to ten years on the three charges for which he had been convicted. On or about February 19, 1999, the petitioner filed a post-sentence motion regarding sentencing issues. The petitioner then filed a notice of appeal on or about March 5, 1999. On March 15, 1999, the trial judge ordered the petitioner to file a concise statement of matters complained of on appeal. On April 26, 1999, the trial judge denied the petitioner's post-sentence motion. The parties agree that the petitioner's appeal has not proceeded any further because, under Pennsylvania law, the petitioner cannot appeal until all of the pending charges are resolved by a verdict.*fn2 The petitioner then awaited retrial for over four years. During that time, in late 2001, he filed a petition for a writ of habeas corpus in the Superior Court of Pennsylvania.*fn3 On January 30, 2002, in a one-page per curiam order, the Superior Court denied the habeas petition. In the order, the Superior Court indicated that only the Supreme Court of Pennsylvania had jurisdiction to issue a writ on a lower court when no appeal was pending.

  On February 19, 2002, the petitioner filed a habeas petition in this court. In this petition, he claimed that he was being denied his Sixth Amendment right to a speedy trial and his due process right to a speedy appeal. While the habeas petition was pending in this court, the petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Pennsylvania on March 11, 2002. In that petition, he claimed that he was being denied his Sixth Amendment right to a speedy trial and his due process right to an appeal. On May 14, 2002, the undersigned recommended that the federal habeas petition be summarily dismissed for lack of exhaustion because the petitioner had a state habeas petition pending in the Supreme Court of Pennsylvania. On June 19, 2002, the Honorable Anita B. Brody approved and adopted this court's recommendation and summarily dismissed the federal habeas petition. According to the parties, the Supreme Court of Pennsylvania had already dismissed the state habeas petition on June 4, 2002.*fn4

  The petitioner filed the presently pending federal habeas petition on September 25, 2002. At the time of filing his pro se habeas petition, the petitioner still had not been retried on the remaining Philadelphia County charges. Judge Brody then referred the case to the undersigned on November 8, 2002. On November 13, 2002, Judge Brody appointed Jules Epstein, Esquire to represent the petitioner. On January 8, 2003, Judge Brody appointed Hope Lefeber, Esquire as substitute counsel and allowed Mr. Epstein to withdraw. Up to that time, the petitioner still had not been retried on the remaining Philadelphia County charges.

  In February 2003, the petitioner was retried on the remaining Philadelphia County charges. Prior to trial, defense counsel, Charles P. Mirarchi, III, Esquire, filed a motion to dismiss the pending charges based on Pennsylvania Rule of Criminal Procedure 600 ("PRCP 600"); PRCP 600 is a speedy trial provision. On February 6, 2003, the trial judge denied the PRCP 600 motion. The trial commenced on February 10, 2003 and, on February 21, 2003, the trial judge declared a hung jury after the jury could not reach a verdict.

  On August 11, 2003 while awaiting the next retrial, the petitioner filed a pro se Post Conviction Relief Act ("PCRA") petition in the trial court. On October 16, 2003, Ms. Lefeber filed an amended habeas petition on behalf of the petitioner in this court and, in it, she noted that the petitioner was scheduled to be retried again in November 2003. However, a retrial did not occur in November 2003. Instead, the case was continued and the retrial was scheduled for January 2004.

  On January 29, 2004, a hearing was held concerning the PCRA petition; the case was continued. Prior to the hearing, John P. Cotter, Esquire, had been appointed to serve as counsel for the petitioner. On February 10, 2004, the trial court scheduled a status hearing regarding the PCRA petition for April 6, 2004.

  In the meantime, on January 30, 2004, trial counsel, Mr. Mirarchi, filed a motion to dismiss the pending prosecution on the ground that it would violate the Due Jeopardy Clause. On the same day, the trial court set a trial date of June 21, 2004. The petitioner's motion to dismiss the pending prosecution was denied by the trial court on March 11, 2004.

  In the amended habeas petition now before the court, the petitioner complains about the delay in retrying him and the adverse effect this delay has had on his right to appeal the Philadelphia County charges for which he has already been convicted. The court will address the constitutional rights this delay implicates.

  By its own terms, the Sixth Amendment guarantees the right to a speedy trial. In addition, the Third Circuit has held that a criminal defendant has a due process right to a speedy appeal. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir. 1995) (citing Burkett v. Cunningham, 826 F.2d 1208, 1221 (3d Cir. 1987)). Both of these rights are implicated by the petitioner's case because of the unusual procedural posture in which he finds himself. That is, although he has already been tried three times, he is still subject to another trial and he has still not been able to pursue an appeal with respect to the charges of which he was convicted in December 1998. The repeated delays in bringing the petitioner to trial implicate his right to a speedy trial. The ongoing delay, which started in December 1998, in his ability to appeal the charges of which he was convicted implicates his right to a speedy appeal. However, before addressing the merits of the petitioner's claims, the court must consider the question of exhaustion.

  The District Attorney argues that the petitioner has failed to exhaust his state remedies because the state courts have not yet adjudicated his habeas claims. However, exhaustion focuses on whether a petitioner has fairly presented his claims to the state courts, not whether the state courts have adjudicated those claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). In order to fairly present a claim, the petitioner must present the factual and legal basis for the federal claim to the state court in a manner that puts the state court on notice that a federal claim is being asserted. Id. at 261.

  In this case, the petitioner raised his speedy trial and speedy appeal claims in the habeas petition he filed in the Supreme Court of Pennsylvania on March 11, 2002. In that petition, he explicitly stated that the delay in bringing him to trial from December 1998 to that point violated his constitutional right to a speedy trial. In that petition, the petitioner also stated that the three year delay in concluding his prosecution had denied him the constitutional, due process right to a direct appeal.

  The court notes that the petitioner was unrepresented when he filed his state habeas petition in the Supreme Court of Pennsylvania. Thus, it is not fair to expect that he would plead as artfully and precisely as an attorney would have. It is true that the petitioner did not cite the lead speedy trial case, Barker v. Wingo, 407 U.S. 514 (1972), nor the Third Circuit cases which establish the right to a speedy appeal, such as Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995) or Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987). However, the petitioner did explicitly rely upon his constitutional right to a speedy trial and his constitutional, due process right to a direct appeal. He also explicitly relied upon the delay in completing his prosecution as the cause of the violation of both those rights. In the court's view, this was sufficient to fairly present his speedy trial and speedy appeal claims to the Supreme Court of Pennsylvania.*fn5

  Exhaustion ordinarily requires presentation of a claim to the trial court, the state's intermediate appellate court and the state's highest court. See Evans v. Court of Common Pleas. Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, when the petitioner sought state habeas relief in the Superior Court of Pennsylvania, he was informed by the Superior Court that his state habeas petition could only be presented in the Supreme Court of Pennsylvania. See Commonwealth v. Washington, No. 4 EDM 2002 (Pa. Super. Jan. 30, 2002). Thus, the petitioner only had to file his habeas petition in the Supreme Court of Pennsylvania in order to exhaust his state remedies. Since he did so, the petitioner has exhausted state remedies with respect to his two claims.*fn6

  Another preliminary issue to consider is the standard of review that should be applied. The habeas statute, 28 U.S.C. § 2254(d)(1), requires a deferential standard of review when the state court has adjudicated the merits of a petitioner's claim. See Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000). However, the court has received no indication that the Supreme Court of Pennsylvania adjudicated the merits of the petitioner's speedy trial and speedy appeal claims. Indeed, the parties agree that the Supreme Court of Pennsylvania declined to address those claims. Since the Supreme Court of Pennsylvania did not adjudicate the merits of the petitioner's claims, the court will not apply the deferential review called for by 28 U.S.C. § 2254(d)(1) and, instead, the court will exercise independent judgment with respect to the petitioner's claims. See Hameen, 212 F.3d at 248.

  The petitioner's speedy trial claim is governed by the four-factor balancing test announced In Barker v. Wingo, 407 U.S. 514 (1972). The four factors to be balanced are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to be tried, and (4) prejudice to the defendant, Id. at 530. The Court noted that none of the four factors are necessary or sufficient to find a deprivation of the right to a speedy trial. Id. at 533.

  The first factor, the length of the delay, is a triggering mechanism because the defendant must allege a delay of a length that is more than ordinary before the court will consider the other factors. Id. at 530. While a delay of sufficient length is referred to as being "presumptively prejudicial," id., this "presumptive" prejudice is not to be taken as conclusively establishing the fourth, prejudice factor of the test. See Doggett v. United States, 505 U.S. 647, 655-56 (1992). A delay of one year in going to trial is sufficient to be deemed presumptively ...


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