because district court appeared not to have reviewed state court record for exhaustion, case should be remanded for that purpose
How later courts described this case
- because district court appeared not to have reviewed state court record for exhaustion, case should be remanded for that purpose
- “[A] habeas applicant must show that the federal claim he asserts in the federal court has been fairly presented to the state courts.”
Written by the judges who cited it.
The opinion
GIBBONS, Chief Judge,
dissenting:
Ross petitioned for federal habeas review on two grounds: that his counsel rendered him ineffective assistance and that he did not enter his guilty plea voluntarily. The majority properly remands this case to allow Ross to delete the first claim to enable review of the second issue since it appears that Ross exhausted state remedies concerning his guilty plea. The majority errs, however, in declining to remand for reconsideration of the ineffective assistance of counsel claim. Its holding assumes that Ross did not exhaust state remedies on this point since he presented a different ineffective assistance claim before the district court than his did in state court. The district court, however, never discharged its duty to review the state record to resolve whether the federal claim had been fairly presented to the state courts. The ineffective assistance of counsel claim should therefore be remanded. A review of the record, moreover, indicates that Ross may well have fairly presented the state courts with a claim that was substantially similar to his federal one.
This Court has held that a district court determining a fair presentation issue must review the pretrial, trial, and appellate briefs and documents submitted to the state courts when the state court decision does not address the claim advanced. Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir.1982); see Picard v. Connor, 404 U.S. 270, 273-74 , 92 S.Ct. 509, 511 , 30 L.Ed.2d 438 (1970); Chaussard v. Fulcomer, 816 F.2d 925, 928 (3d Cir.1987). Nothing in the record before this Court gives any indication that the district court asked for, received, or reviewed the relevant state documents. For this reason the petition should be remanded to the district court for reconsideration of whether Ross has exhausted state remedies for his ineffective assistance of counsel claim.
The majority, while disapproving of the district court’s failure to review the state record, nonetheless excuses it. Its argument runs that since Ross’s court-appointed counsel did not on appeal “deny” that the ineffective assistance claims were different, and that no dispute ostensibly exists on the point, no reason exists to remand. This misconstrues the proceedings and the law. Counsel for Ross did not “deny” the fair presentation issue because it was never clearly joined either in the briefs or at oral argument. Instead, both sides addressed their arguments almost exclusively to the consequences of recent changes in Pennsylvania’s post conviction relief statutes. More important, the district court’s duty to examine the state record does not turn on the behavior of the parties once the fair presentation issue is raised. Rather, the district court bears *644 that duty independently, and must therefore satisfy itself that the claims before it had already been aired in the state courts. See Brown, 669 F.2d at 158 (district court must conduct further inquiry to ascertain whether exhaustion requirement has been satisfied when state court is silent on issue subsequently raised in a habeas petition).
Since the state court documents are not part of the record, this Court may not conduct its own review. The record that does exist raises the possibility that Ross did fairly present his ineffective assistance of counsel claim. In his Post Conviction Hearing Act petition, Ross claimed that his counsel rendered ineffective assistance by failing vigorously to pursue Ross’s request to withdraw his guilty plea. At least according to his habeas petition, Ross pursued state post-conviction relief by contending that his counsel “didn’t adequately question him as to why he wished to [withdraw his guilty plea].” (Ross Habeas Petition at 5). Had counsel discovered why Ross wanted to withdraw his plea, the necessary implication follows, the attorney would have pressed for the withdrawal of the plea with more vigor. To this challenge Ross’s habeas petition ostensibly added only one fact, and that was the reason why. Specifically, the habeas petition states that he “wanted to withdraw the plea because he had been ‘covering’ for one Carlos Edrington.”
Nothing about the additional fact changes the substantial similarity between the two versions of the claim, and still less changes the legal analysis that a court would apply to the challenge. See Rose v. Lundy, 455 U.S. 509, 515-17 , 102 S.Ct. 1198, 1201-03 , 71 L.Ed.2d 379 (1982); Picard v. Connor, 404 U.S. at 277-78 , 92 S.Ct. at 513-14 ; Santana v. Fenton, 685 F.2d 71, 78 (3d Cir.1982). Absent an assumption that the reason why Ross wanted to withdraw his guilty plea would have induced his counsel to provide more effective assistance, his claim would make no sense. For the purposes of fair presentation, Ross’s enumeration of his motive of covering for Edrington has no relevance.
Ross’s petition should therefore be remanded to the district court for reconsideration of both his involuntary guilty plea claim and of his ineffective assistance of counsel claim in light of the complete state record. Whether Ross’s characterization of his ineffective counsel claim as argued in state court actually matches what the state record indicates should be a matter left for the district court. Whatever the outcome of that determination, establishing a loophole to the mandate for further inquiry sets a troubling precedent both in general and with regard to this case. In consequence, I dissent.