Appendix — Castille v. Clark

Supreme Court brief1990

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NO. JOSEPH F. SPANIOL, UR. |

CLERK '

IN THE SUPREME CO és nen

OF THE UNITED STATES

OCTOBER TERM, 1989

RONALD D. CASTILLE, District Attorney

of Philadelphia County;

DONALD T. VAUGHN, Superintendent,

State Correctional Institute at

Graterford, and ERNEST D. PREATE, Jr.,

Attorney General of Pennsylvania,

Petitioners

JAMES CLARK,

Respondent

APPENDICES TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

GAELE MCLAUGHLIN BARTHOLD

Deputy District Attorney

(Counsel of Record)

E.LZABETH J. CHAMBERS

Chief, Federal Litigation

WILLIAM G. CHADWICK, Jr.

First Asstistant District

Attorney

RONALD D. CASTILLE

District Attorney

Philadelphia County

Office of the District Attorney

1421 Arch Street

Philadelphia, PA 19102

(215) 686-5700

INDEX

Appendix A:

Order and Opinion of the

United States Court of

Appeals for the Third

Circuit

Appendix B:

Rehearing Order of the

United States Court of

Appeals for the Third

Circuit

Appendix C:

Orders and Memorandum

Opinion of the United

States District Court for

the Eastern District of

Pennsylvania

PAGE

A-1 - A-49

A-50 - A-5i

A-52 - A-104

Filed December 27, 1989

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-1499

CLARK, JAMES

Appellant

Vs.

COMMONWEALTH OF PENNSYLVANIA,

ZIMMERMAN, CHARLES and

THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA,

ZIMMERMAN, LEROY and

DISTRICT ATTORNEY OF PHILADELPHIA

Argued

October 30, 1989

Before: GIBBONS, Chief Judge,

MANSMANN, Circuit Judge,

and GERRY, District Judge.*

(Filed: December 27, 1989)

* Honorable John F. Gerry of the United

States District Court for the District of

New Jersey, sitting by designation.

David McColgin, Esquire (ARGUED)

Defender Association of Philadelphia

Federal Courts Division

Suite 500S, Cast Iron Building

718 Arch Street

Philadelphia, PA 19106-1597

Counsel for Appellant

Elizabeth J. Chambers (ARGUED)

Chief, Federal Litigation

Gaele McLaughlin Barthold

Deputy District Attorney

William G. Chadwick, Jr.

First Assistant District Attorney

Ronald D. Castille

District Attorney

1421 Arch Street, 5th Floor

Philadelphia, PA 19102

Counsel for Appellee

OPINION OF THE COURT

MANSMANN, Circuit Judge.

James Clark, a state prisoner present-

ly incarcerated at Graterford State Prison,

filed three separate petitions seeking

federal habeas corpus relief. Two of the

petitions, concerning 1974 convictions for

which Clark has completed serving his

sentences, fail to meet the threshold

jurisdictional requirements of 28 U.S.C.

A-2

§§2241(c), 2254(a) (1948) that a petitioner

be in custody for the allegedly defective

conviction presented for scrutiny. Our

review is thus limited to the third peti-

tion filed by Clark regarding a 1979

conviction for which he remains incarcerat-

ed.*

lsee Maleng v. Cook, 109 S.Ct. 1923,

1925 (1989) (Court has never held that

habeas petitioner is in custody when

sentence imposed for particular conviction

fully expired at time petition filed).

*although subject matter jurisdiction

is lacking over the two earlier petitions,

these convictons nonetheless are subject to

limited review in the third petition

because of their collateral consequences on

the later 1979 conviction. We are

cognizant of the Supreme Court's concluding

remark in Maleng:

Our holding is limited to the

narrow issue of "custody" for

subject matter jurisdiction of

the habeas court. We express no

view on the extent to which the

[earlier] conviction itself may

be subject to challenge in the

attack upon the [later] sentences

for which it was used to enhdnce.

(Footnote Continued)

The essence of this petition is

Clark's allegation that the judge who

sentenced him for a 1979 conviction wrongly

took into consideration the two previous

convictions. These convictions were

obtained in criminal court at a time when

Clark was a juvenile, yet Clark was not

afforded a hearing concerning his minor

status and how his age should impact upon

the criminal proceedings pending against

him. Clark asserts, inter alia, that the

failure to conduct such a hearing deprived

him of his constitutional guarantee of due

process.

Although the district court held that

the alleged constitutional deficiencies

(Footnote Continued)

Id. at 1927. Accord Carafas v. LaVallee,

391 U.S. 234, 236-38 (1968) (collateral

consequences of conviction can prevent

mootness of habeas petition; however, they

cannot confer jurisdiction on court.) See

Typescript, infra at 19-20.

A-4

were not present and that Clark's due

process rights were protected during the

1974 judicial proceedings, we disagree. We

conclude instead that the 1974 sentencing

judge erred in not ascertaining Clark's

juvenile status in light of the evidence of

record. This failure denied Clark the

important procedural safeguards provided to

juveniles under Pennsylvania law. Thus,

under the mandate of United States v.

Tucker, 404 U.S. 443 (1972), the matter

must be remanded for resentencing of the

1979 conviction with instruction that the

1974 convictions, obtained in violation of

Clark's constitutional right to due pro-

cess, not be considered in the imposition

of the sentence.

The historical facts surrounding the

crimes committed need not be outlined in

detail; rather, the post-arrest events

command our attention.

On separate dates in November 1973

criminal complaints were lodged against

Clark for two incidents of sexual assault.

On the first offense, Clark entered a no

contest plea to attempted rape and was

sentenced to 3 to 23 months in prison.

After a bench trial on the second offense,

Clark was found guilty of felonious as-

sault. A sentence of 113 to 23 months

imprisonment was ordered. Clark took no

direct appeal from these convictions. he

completed serving both sentences in 1978.

In 1979 a jury found Clark guilty of

rape, indecent assault, unlawful restraint,

aggravated assault and possessing an

instrument of crime. On the day that

Clark's post-trial motions were scheduled

A-6

for argument, he escaped. Under the

dictates of the Pennsylvania fugitive

forfeiture rule,> the pending post-trial

motions were then dismissed. Upon recap-

ture Clark was sentenced to serve 10 to 20

years for rape and to a consecutive 2 to 5

year sentence for felonious restraint. In

imposing sentence, the judge took into

consideration the two 1974 convictions

whose sentences Clark had just finished

serving. The Pennsylvania Superior Court

affirmed the judgment of sentence. Common-

wealth v. Clark, 300 Pa. Super. 315, 446

3The Pennsylvania rule provides in

relevant part:

Rule 1972, Dispositions on Motion

Subject to Rule 123..., any party may

move:

x *& *

(6) To continue generally or to

quash because the appellant is a

fugitive.

Pa.R.App.P. 1972.

A.2d 633 (1982). The Pennsylvania Supreme

Court denied review.

Meanwhile, in October of 1980, Clark

filed a petition under the then-applicable

Pennsylvania Post Conviction Hearing Act

("PCHA"), 42 Pa. Cons. Stat. Ann. §9541 et

seg. (Purdon 1982), challenging the juris-

diction of the trial court over his 1973

violations. The petition was later amended

to allege ineffective assistance of coun-

sel. Clark's argument against jurisdiction

was that he was only 17 at the time the

crimes were committed and that Pennsylvania

law entitled him to a juvenile court

hearing to determine whether he should have

been treated as a juvenile offender or

tried as an adult. See 42 Pa. Cons. Stat.

Ann. §6322 (Purdon 1978). The ineffective-

ness claim was related. Clark averred that

representation was inadequate because his

trial counsel failed to ascertain Clark's

true age and was derelict in not bringing

A-8

eats RS ii ae

Clark's juvenile status to the attention of

the court; in sum, an allegation that

counsel failed to question the trial

court's jurisdiction. A post conviction

hearing was held, at which Clark declined

to present testimony from his 1973 trial

counsel and, instead, "stood" on the

record. The PCHA court found as a fact

that both the trial court and counsel were

unaware of Clark's actual age. Since this

awareness is a requirement before a juve-

nile certification hearing is required

under the Pennsylvania statute, the post

conviction petition was denied. The

Superior Court affirmed the denial of

collateral relief. Commonwealth v. Clark,

344 Pa. Super. 620, 495 A.2d 610 (1985).

Clark's request for allowance of appeal to

the Pennsylvania Supreme Court was denied.

On October 28, 1985, seven years after

he completed serving his sentences for the

1974 offenses, Clark filed two federal

A-9

habeas petitions challenging those convic-

tions. In 1986, he filed a third petition

asserting that the 1980 sentence ordered

for his 1979 conviction was unconstitution-

ally imposed as it was based upon infirmi-

ties in the two 1974 convictions. He also

raised the argument that his counsel was

ineffective in the 1979 case for failure to

request reinstatement of his post-trial

motions after his recapture and for not

raising the illegality of the 1974 adult

convictions. The three petitions were

consolidated.

On August 24, 1987, a United States

magistrate recommended that the petitions

be provisionally granted and the matter

remanded for the state court to hold a

certification hearing on the two 1974

convictions. Then, if the court of common

pleas determined that the waiver of juve-

nile court jurisdiction was improper, the

magistrate advised that the 1974

A-10

convictions should be vacated and Clark

resentenced without consideration of these

illegally obtained convictions.

Both the government and Clark filed

objections to the magistrate's report. -

On May 31, 1989, the district court

rejected the magistrate's recommendation.

The two petitions concerning the 1974

convictions were denied on jurisdictional

grounds. As to the third petition concern-

ing the 1980 sentence, the district court

first determined that the statutory exhaus-

tion of state remedies requirement was

Satisfied with regard to the issue of the

application of the Pennsylvania fugitive

forfeiture rule. The district court did

4clark objected to the report because

it failed to require that the de novo

certification hearing be held within a

reasonable time. This objection was

tacitly dismissed by the district court's

reversal of the magistrate's

recommendation.

not address the exhaustion question posed

concerning the due process claim.

Next, regarding waiver, the district

court decided that the state court dismiss-

al of the then-pending post-trial motions

occasioned by Clark's flight from the

jurisdiction, constituting a procedural

default under the Pennsylvania fugitive

forfeiture rule, did not preclude federal

review of Clark's habeas claims.

Having overcome these procedurai

obstacles, the district court proceeded to

the merits of the remaining petition.

Despite its conclusion that under United

States v. Tucker, 404 U.S. at 448, the 1974

convictions were reviewable, the district

court decided that Clark's substantive

allegations were méritless. Specifically,

the district court held that the failure to

hold a juvenile certification hearing in

the 1974 cases did not violate Pennsylvania

law nor did it deny Clark due process. As

A-12

to the ineffectiveness claim, the district

court found that trial counsel's failure to

ascertain his client's actual age did not

constitute constitutionally inadequate

representation because Clark failed to show

both prongs of the Strickland v. Washing-

ton, 466 U.S. 668 (1984) test -- incompe-

tence of counsel and prejudice resulting

from an allegedly deficient performance.

Finally, the district court rejected the

claims that counsel was ineffective at the

sentencing of the 1979 case. The district

court found probable cause to appeal. We

have jurisdiction pursuant to 28 U.S.C.

§§1291, 2253 and exercise plenary review

over the legal questions presented.

As is often the case in habeas peti-

tions presented for federal review, this

matter poses questions of jurisdiction,

exhaustion and procedural default. Here

these issues are not dispositive,

A-13

nonetheless, [they] are perplexing enough

to warrant some discussion. [sic]

A. Jurisdiction

In light of the Supreme Court's recent

decision in Maleng v. Cook, 109 S.Ct. 1923

(1989), Clark now concedes that he is no

longer in custody as a result of the 1974

convictions and, accordingly, admits that

the district court does not have jurisdic-

tion to consider the merits of those

petitions. The reviewability of those

convictions nonetheless remains before us,

as discussed infra, because of their

collateral enhancement consequences on the

1980 sentence.

B. Exhaustion

First, we address the exhaustion

question summarily as it arises in the

context of the fugitive forfeiture rule.

The district court agreed with the magis-

trate that the impact of the application of

the Pennsylvania fugitive forfeiture rule,

A-14

occasioning a state procedural default, was

not an issue subject to the exhaustion

requirement. The district court reasoned

that because Clark had not raised the issue

of the applicability of the rule as an

independent basis seeking relief but,

rather, invoked it only as a response to’

the government's assertion that he commit-

ted a procedural default which bars habeas

relief, he need not have exhausted this by

direct review.

The government did not cross-appeal

concerning the district court's determina-

tion and we are satisfied that the district

court's conclusion in this regard was

correct.

The government contended, however, at

Oral argument before us, that Clark's

request for relief on due process grounds,

occasioned by the failure to provide him

with a certification hearing to determine

his juvenile status, was not exhausted.

A-15

According to the government, this claim was

raised in the state courts only as a

jurisdictional issue, i.e., because of

Clark's juvenile status, the court of

common _ee did not have jurisdiction over

him.

Although the district court did not

address whether Clark exhausted the claim,

we find that this question poses a signifi-

cant problem requiring discussion in some

detail.

That 28 U.S.C. §2254(b) embodies the

requirement that state remedies must be

completely exhausted before federal courts

will grant habeas corpus relief needs no

further elaboration. But how this require-

ment 1S satisfied is not so readily ascer-

tainable. Picard v. Connor, 404 U.S. 270,

275 (1971), instructs us to question if the

federal claim has been fairly presented to

the state courts. In determining what

constitutes a fair presentation, we must

A-16

inquire whether the claim presented to the

state court is the substantial equivalent

of that presented in the federal habeas

> This

corpus petition. Id. at 278.

requires "'a searching scrutiny by the

federal habeas court of the points that

were raised in the state tribunals, in

order to ensure that the state system was

granted a fair opportunity to confront

arguments that are propounded to the

federal habeas courts.'" Bisaccia v.

Attorney General of State of New Jersey,

623 F.2d 307, 310, cert. denied, 449 U.S.

1042 (1980) quoting, Zicarelli v. Gray, 543

F.2d 466, 472 (3d Cir. 1976) (in banc).

The Court in Picard carefully noted

that: "[We] do not imply that respondent

could have raised the [constitutional ]

Claim only by citing ‘book and verse on the

federal constitution.' (Citations

omitted.) We simply hold that the

substance of a federal habeas corpus claim

must first be presented to the state

courts." Id. at 278.

A-17

In Duttry v. Petsock, 878 F.2d 123 (3d

Cir. 1989), we reiterated the necessity for

the district court to review the state

court records relevant to exhaustion to

determine if that jurisdictional require-

ment is satisfied. If the district court

has been remiss in this obligation, the

matter must be remanded so that the search

be accomplished. See also Ross v. Petsock,

868 F.2d 639, 643 (3d Cir. 1988), Gibbons,

C.J., dissenting, (disagreeing with majori-

ty's, albeit disapproving, excusal of

district court's failure to comb state

court record).

It is problematic that the record here

does not show whether the district court

reviewed the state court record for purpos-

es of determining the due process exhaus-

tion issue. Given the age of this matter,

we are, however, very reluctant to remand

on this limited question since such an

action would cause further delay and

A-18

potentially yield yet another appeal.

Nonetheless, we will not overstep our

review boundaries; we are not the proper

tribunal to undertake an independent search

of the record. Instead, we seek alternate

recourse to resolve the exhaustion issue

and find an avenue provided by our recent

decision in Peoples v. Fulcomer, 882 F.2d

828 (3d Cir. 1989).

In Peoples, a case revisited by us on

remand from the Supreme Court, we observed

that a petitioner's claim can be considered

exhausted when it is clear that it would be

procedurally barred under Pennsylvania law.

Id. at 830. We took our lead from the

Supreme Court's language in its review of

the matter in Castille v. Peoples, 109

S.Ct. 1056 (1989). There the Court an-

nounced that the customary bar to federal

review caused by failure of presentation of

a particular claim to the state courts may

not be present if the petitioner's claim

A-19

would now be procedurally barred under

state law. Id. at 1060. See also Teaque

v. Lane, 109 S.Ct. 1060, 1068 (1989) (state

collateral relief not available for

non-exhausted habeas claim, thus, exhaus-

tion satisfied under 28 U.S.C. §2254(b)).°

We then turned, as we do now, to the

newly revised Pennsylvania statute govern-

ing such collateral actions. Pennsylva-

nia's prior Post-Conviction Hearing Act had

been modified in part, repealed in part,

and renamed the Post-Conviction Relief Act,

42 Pa. Cons. Stat. Ann. §9541 et seq.

(Purdon Supp. 1989)("PCRA"). We viewed the

PCRA aS incorporating a preference that

Pennsylvania courts confront

Sberhaps the better reading of

Peoples, Castille and Teague is that a

futile return to the state court system

excuses, not satisfies, exhaustion.

A-20

post-conviction challenges. Peoples, 882

F.2d at 832, n.2.

With this preference in mind and

noting dismay for the necessary conjecture,

we trace the probable path Clark's current

claim would travel in the current Pennsyl-

vania post-conviction system. Under the

PCRA, Clark must plead and prove a number

of matters relevant to the alleged due

process violation before establishing

eligibility for relief. Under 42 Pa. Cons.

Stat. Ann. §9543(a) Clark must demonstrate

by a preponderance of the evidence that he

is currently serving a sentence for convic-

tion of the crime which, in this case,

arose from a violation of the Constitution

of the United States which would require

the grant of federal habeas relief.

§9543(a)(i)(1), (a)(2)(v).?

7although it would appear that

§9543(a)(2)(vii), providing relief if the

sentence resulted from a proceeding in a

‘tribunal without jurisdiction, might also

be applicable, this means for relief is

unavailable because Clark is not currently

serving a sentence for those offenses

committed while a juvenile. Indeed,

Clark's "no longer in custody" status is

one of the reasons why Clark's 1980 PCHA

petition was denied by the Philadelphia

County Court of Common Pleas and by the

Pennsylvania Superior Court. Commonwealth

v. Clark, 344 Pa. Super. 620, 495 A.2d 610

(1985). Although under Pennsylvania law

the fact that a PCHA petitioner has

completed his sentence will not result in

an absolute bar if there is an allegation

that there exists the possibility of

criminal consequences arising directly from

the prior conviction, Commonwealth v.

Rohde, 485 Pa. 404, 402 A.2d 1025 (1979),

Clark did not pursue this argument in the

Pennsylvania courts. In his brief to the

PCHA court, Clark did advance a related

argument that counsel was ineffective for

failing to request that his case be

transferred to the Family Court Division

and in support claimed that one of the

benefits of juvenile adjudication was the

absence of collateral consequences from

such an adjudication. Clark abandoned this

argument before the Superior Court. The

Superior Court nonetheless commented that

(Footnote Continued)

A-22

Next, Clark must show, under

§9543(a)(3):

(3) That the allegation of error

has not been been previously litigated

and one of the following applies:

(i) The allegation of error

has not been waived.

(ii) If the allegation of

error has been waived, the al-

leged error has resulted in the

conviction or affirmance of sen-

tence of an innocent individual.

(iii) If the allegation of

error has been waived, the waiver

of the allegation of error during

pretrial, trial, post-trial or

direct appeal proceedings does

not constitute a State procedural

default barring Federal habeas

corpus relief.

42 Pa. Cons. Stat. Ann. §9543(a)(3).

A claim has been previously litigated

if:

(1) it has been raised in the

(Footnote Continued)

if possible collateral consequences are

alleged from a conviction whose sentence

has been satisfied, relief is not

necessarily barred. The court then noted

that Clark merely alluded to such

consequences in his ineffectiveness

argument, but did not pursue it on appeal.

A-23

trial court, the trial court has ruled

on the merits of the issue and the

petitioner did not appeal;

(2) the highest appellate court

in which the petitioner could have had

review as a matter of right has ruled

on the merits of the issue; or

(3) it has been raised and

decided in a proceeding collaterally

attacking the conviction or sentence.

42 Pa. Cons. Stat. Ann. §9544(a)(1).

The direct language of §9544's defini-

tion of "previously litigated" belies the

difficulty of applying its guidelines to

Clark. Also, the irony of the requisite to

examine the state court proceedings to

ascertain whether Clark's claim has been

previously litigated or waived is apparent.

This is the exact activity spurned by us in

announcing our reluctance to usurp the

district court's role in finding exhaus-

tion. Fortunately, we need not resolve the

paradox since it is our opinion that the

overriding exception barring entitlement to

relief under the PCRA, prejudice to the

Commonwealth, exists.

42 Pa. Cons. Stat. Ann. §9543(b)

reads:

(b) Exception. - Even if the

petitioner meets the requirements of

subsection(a), the petition shall be

dismissed if it appears that, because

of delay in filing the petition, the

Commonwealth has been prejudiced

either in its ability to respond to

the petition or in its ability to

re-try the petitioner. This subsec-

tion does not apply if the petitioner

shows that the petition is based on

grounds of which the petitioner could

not have had knowledge by the exercise

of reasonable diligence before the

delay became prejudicial to the

Commonwealth.

Here, both the delay, 16 years since

the alleged due process violation, and the

prejudice to the Commonwelth are present.

The delay is self-evident and the prejudice

to the Commonwealth is compelling. Al-

though our issue is confined to the impact

of the 1973 proceedings upon the 1980

sentence, the facts and circumstances

Surrounding the 1973 proceedings are

A-25

dispositive of whether Clark's due process

rights were violated. Given the death of

the trial judge involved and the destruc-

tion of the relevant stenographic notes, to

now defend against this issue in a collat-

eral proceeding would be virtually impossi-

ble. Nor is this an instance where Clark

did not have knowledge of the relevant

facts before the delay became prejudicial.

Granted he did not know precisely that the

1980 sentencing court would consider his

earlier convictions, yet he Knew at all

times of the crucial underlying fact of his

Status as a juvenile at the time of the

proceeding and the court and his counsel's

failure to become aware of this factor.

It 1S our opinion that the Pennsylva-

nia court would not entertain Clark's

petition at this late date. Indeed, nine

years earlier, the delay in filing his 1980

petition had been previously referred to

and considered detrimental to the success

A-26

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default which bars review of the issues

raised. The chronology of events is

pertinent: after Clark was convicted in

1979 of rape, robbery, unlawful restraint

and possession of an instrument of a crime,

he timely filed post-trial motions. On

September 26, 1979, the day scheduled for

Oral argument of these motions, Clark

escaped. The post-trial motions were then

dismissed, we assume by motion of the

government under Rule 1972. Clark was

recaptured on July 25, 1980 and sentenced

for the 1979 offenses on September 17,

1980. The Superior Court affirmed the

judgment of his sentence on June 4, 1982

and the Supreme Court denied allocatur.

Clark has remained in custody since his

apprehension.

Wnether Clark's escape equates to a

procedural default foreclosing federal

habeas review is governed by whether our

Opinion in Fiegley v. Fulcomer, 833 F.2d 29

A-28

(3d Cir. 1987) controls. ® In Fiegley, we

opined that an escape constitutes a knowing

decision by the prisoner that he will not

abide by the outcome of that court's lawful

processes. Thus, we reasoned that it was

unlikely that such a prisoner could ever be

able to show "cause," see Wainwright v.

Sykes, 433 U.S. 72 (1977), for procedural

default. Feigley, 833 F.2d at 31. We

thereby decided that by escaping during the

pendency of his state post-conviction

SFiegley confronted what was then a

matter of first impression in our court,

i.e. whether a habeas petitioner, a

prisoner who escaped and was then

recaptured, satisfied the federal standard

for disregarding a state law procedural

bar. In answering, we applied the more

liberal “cause and prejudice" standard of

Wainwright v. Sykes, 433 U.S. 72 (1977)

over the "deliberate by-pass" analysis of

Fay v. Noia, 372 U.S. 391 (1963). Our

Opinion in Fiegley did not dispute that

under Pennsylvania law an escapee waived

the right to seek relief from Pennsylvania

courts, rather, the issue was whether the

State law procedural bar should be

disregarded in the federal proceedings.

A-29

petitions. Fiegley waived his right to

assert this claim in his federal habeas

petition.

The district court here held that

Feigley did not apply.” We agree, although

on an alternate basis. We are in accord

with the district’ court that Rule 1972's

facial language, permitting any party to

move to continue generally or to quash a

matter because an appellant is a fugitive,

provides little or no guidance as to

dismissal of claims arising after recap-

ture. Although the district court added

that the case law does not distinguish

rhe district court engaged ina

detailed analysis of whether the

Pennsylvania rule provided an independent

and adequate grounds for procedural default

precluding us from delving into the claims

of constitutional error in the state

conviction. See Neely v. Zimmerman, 858

F.2d 144 (3d Cir. 1988). We have no

quarrel with the district court's

dissection of the issue, rather, we feel

its extent was unnecessary.

A-30

between claims arising before or after

recapture, this is because the rule simply

does not apply to motions arising after

recapture. Clark was not sentenced until

he was once again apprenended. His claims

for federal habeas relief, unlike those in

Fiegley, are based upon events which arose

at sentencing following his apprehension

and do not directly concern his original

post-trial motions which were forfeited

when he escaped. Thus, although we agree

with the district court, first, that the

Pennsylvania rule does not speak in unmis-

takable terms and, second, that the Penn-

sylvania cases construing the law are not

consistent, we find that it was unnecessary

to confront the procedural default argument

by employing the fugitive forfeiture rule

when its terms were simply not operational

to the claim before the 1980 sentencing

court.

Iil.

We turn at last to the merits of the

The district court made a positive

determination as to reviewability of the

1974 convictions. Although these matters,

lacking the “in custody" requirement of 28

U.S.C. §2254(a), were beyond the district

court's direct jurisdictional constraints,

under the doctrine of the United States v.

Tucker, 404 U.S. at 447, they remain

viable. In Tucker, a sentencing court gave

specific consideration to two prior convic-

tions which, having been obtained without

the assistance of counsel in violation of

Gideon v. Wainwright, 372 U.S. 35 (1963),

were constitutionally infirm.

remanded the case for resentencing because

the sentence was "founded at least in part

upon misinformation of constituional

magnitude." 4.4°

Although the government conceded at

Oral argument before the district court

that review under Tucker was appropriate,

it now contends that the magnitude of error

alleged here, failure of counsel to request

a certification hearing, does not rise to

the level of constitutional deprivation

such as the right to counsel in Tucker.

The district court decided that it was

not necessary to tackle the question of the

extent Tucker is to be applied to cases

asserting constitutional defects other than

deprivation of right to counsel. Instead,

the district court found that the 1974

convictions were not obtained in violatio

10mhe only relief permitted under

Tucker is resentencing on the subsequent

conviction. This is the only relief Clark

seeks in this case.

of Clark's constitutional rights. Thus,

although Tucker could trigger an evaluation

of the constitutionality of the earlier

sentences, it did not compel resentencing

here, as the starting point, the presence

of an invalid conviction, was missing.

We here part company with the district

court and conclude instead that Clark was

indeed deprived of his due process rights

in 1973 when the trial court failed to

provide him with a certification hearing.

This denial of due process is a defect of

constitutional magnitude which Tucker is

designed to protect. Because the 1974

convictions were relied upon by the 1980

sentencing court, Clark is entitled to the

relief provided by

Our decision that Clark was not

afforded his due process rights emanates

from our interpretation of the Pennsylvania

Statute and the caselaw analyzing its

constitutional breadth.

Whether a juvenile certification

hearing 1s required in Pennsylvania pro-

ceedings is controlled by 42 Pa. Cons.

Stat. Ann. §6322. The statute reads in

relevant part:

§6322. Transfer from criminal

proceedings.

(a) General Rule [I]Jf it appears to

the court in a criminal proceeding

other than murder that the defendant

is a child, this chapter shall immedi-

ately become applicable, and the court

Shall forthwith halt further criminal

proceedings, and, where appropriate,

transfer the case to the division or a

judge of the court assigned to conduct

juvenile hearings....

If Clark was in fact only 17 at the

c . . > . ’ 7 3 1

-im&€ ~ + | 7 —_ oT _ ‘77501 nm

cCime Of a criminai proceeding, ne would be

RAAnaciAar ala’ naer P nav)

consiqaered a et ke oe “wilQel rennsy ivanilda Law

information as to Clark's age at the time

of the relevant criminal conduct in 1973.

In two arrest reports filed by the police,

Clark's birth date was recorded as March

20, 1954, which would place his age at 19

years. Two commitment orders entered in

family court also state Clark's age as 19.

On the opposing side, a pre-trial services

report stated, "Defendant said he is only

17." On that form, petitioner's date of

birth was recorded as 3/23/57. Most

Significantly, the criminal complaint

; , eta

relating to the November 5, 1973 incident

a = a 7-7 - , a N — a Ta

~-lark was a 1/-year-old Negro male To

- ny i

further even the score, on Clark's behalf,

there is the fact that Clrk was indeed 17

years old at the time of the arrest, while,

> = '_- £ ~ ~

in the government's favor, is the state

. . 7 ~a os } . | .

Crlai court Ss decision on the Pennsylvani

. 1 “

on petition that the 1973

‘

trial court wasS unaware of Clark's actual

A-36

age since he represented that he was older

at the time. Based upon the fairly equiva-

lent distribution of record evidence

concerning Clark's age, the district court

found as a fact both that Clark was 17 at

the time of his arrest and that the court

was not aware of Clark's actual age.

Given the disparate record evidence,

we cannot adhere to the usual 28 U.S.C.

§2254(d) presumption of correctness accord-

ed to state factfinding procedures. This

1s simply because "the majority of facts

were not adequately developed at the state

court hearing." See 28 U.S.C. §2254(d)(3).

The PCHA court's finding that "the Court

was not aware of the defendant's actual

age" is simply not borne out by the record.

Granted the documentation reveals conflict-

ing evidence as to Clark's age, but there

is no evidence of willful misstatement by

Clark. In fact, the pretrial services

report memorializes a directly contrary

statement: "Defendant says he is only 17."

We tread cautiously in deciding

exactly how this information activates

application of the Pennsylvania certifica-

tion statute. There is little guidance

from the Pennsylvania courts as to how the

Statute's language is to be interpreted in

this regard. Our research has not found a

case delineating the scope of the trial

court's obligation in divining the age of

defendants. In Commonwealth v. Sims, 379

Pa. Sper. 252, 549 A.2d 1280 (1988), the

Pennsylvania Superior Court, citing Common-

wealth v. Harris, 223 Pa. Super. 11, 297

A.2d 154 (1972), found that the Pennsylva-

nia statute imposes a duty to transfer a

Criminal proceeding to a juvenile court if

"it shall be ascertained that the person

charged with the offense was under the age

of 16 years at the time the alleged offense

was committed."~

In both Sims and Harris

the defendants, on inquiry by the court,

either misstated or refused to divulge

their true ages. The court thus did not

discuss the duty of the court to "ascer-

tain" the true age of the defendants. But

here, given the information indicating

Clark's age as 17 included in documents

which the trial court would have had before

it (particularly the criminal complaint),

we are constrained to conclude that the

court should have been aware of Clark's

juvenile status. The failure of the trial

court to make any inquiry into Clark's age

deprived him of the possibility of being

““The court in.Harris was r r

an earlier statute, 1l Pa. Stat. Ann. §

(Purdon 1972), which has since been

repealed. 42 Pa. Cons. Stat. Ann. §6301

now governs juvenile matters and defines

"child" as an individual who is under the

age of 18 years. 42 Pa. Cons. Stat. Ann.

§6302.

NM W

A-39

adjudicated as a juvenile. The likelihood

of his being so certified and the debate as

to whether such an adjudication would have

actually benefitted Clark are not germane.

As a 17 year old, Clark was entitled to

certain safeguards and the court was remiss

in not, at the least, inquiring into

Clark's eligibility for juvenile certifica-

tion.

We next broach the question of whether

the failure to provide Clark with a certi-

fication hearing deprived him of due

process of law.

The seminal case on this issue is Kent

v. United States, 383 U.S. 541 (1966).

According to the governing statute, Kent, a

juvenile, was subject to the exclusive

jurisdiction of the District of Columbia

juvenile division unless, after full

investigation, that court should waive

jurisdiction. A motion had been filed in

juvenile court for a hearing on the

A-40

question of waiver and for access to the

juvenile court's social service file

prepared during Kent's probation for a

prior offense. The juvenile court did not

rule on these motions, but instead, it

entered an order waiving jurisdiction

accompanied by the recitation that the

Waiver followed the required full investi-

gation. After Kernt was indicted as an

adult, he moved to dismiss the indictment,

alleging that the juvenile court's waiver

was invalid, presenting various arguments

as to the infirmity of the proceedings by

which the jurisdiction of the juvenile

court was waived. Although the Supreme

Court agreed that the statute contemplated

that the juvenile court should have consid-

erable latitude within which to determine

whether it should retain jurisdiction over

a child, it decreed that this latitude was

not all encompassing. The Court concluded

that the juvenile proceeding must conport

A-41

with procedural regularities sufficient in

the particular circumstances to satisfy

the basic requirements of due process and

fairness. Id. at 557.

In re Gault, 387 U.S. 1 (1967),

provided the Supreme Court with further

opportunity to outline the procedures

necessary for an adjudication of delinquen-

cy. The Court re-emphasized the necessity

that basic requirements of due process and

fairness must be satisfied in such proceed-

Gault, 387 U.S. at 12.

We confronted the Pennsylvania juve-

nile's right to due process in United

States ex rel. Turner v. Rundle, 438 F.2d

ne 19071 Th OT, ‘ 7]

839 (3d Cir. 1971). In Turner, we evaluat-

as 7 ~ }

ed a transter trom uvenile to criminal

= y+ nA a an an an Aan - * ca K . -— > ao - lt

wie anda ee Se ae 8 he SS — at Sint, particularily

principles of constitutional dimension

which must be followed in connection with

juvenile proceedings. We thus held that

the constitutional requirements prescribed

by Kent included notice of the charges,

access to certain records, the right to

present evidence and cross-examine witness-

es, and a statement of the reasors for the

walver. Id. at 842.

The district court here found that

urner did not hold that the due process

clause requires that a transfer or certifi-

cation or walver hearing must always be

conducted in a case involving a juvenile;

its holding and those of Kent and

Sault mandate that any hearing provided by

the state must contain certain procedural

safeguards. Because Pennsylvania law does

not require a hearing until petitioner's

failure to conduct the hearing in this case

did not violate the petitioner's constitu-

We have of course arrived at a differ-

ent conclusion concerning the scope of the

trial court's duty under these circumstanc-

es to become cognizant of Clark's status as

a juvenile. Because we conclude that,

under these particular facts, Clark was

entitled to a certification hearing, it is

axiomatic that the absence of the opportu-

nity to be eligible for the procedural

safeguards provided by the Pennsylvania

statute represented a deprivation of due

process. In our reading of Kent, Gault,

and Turner a duty is imposed on courts to

conduct juvenile proceedings which comport

with general principles of due process.

For the trial court not to have exercised

sufficient diligence to inquire into

whether a hearing waS appropriate deprives

a defendant of due process rights.

We further conclude that this denial

of due process rises to the level of

deprivation of constitutional rights

A-44

encompassed within United States v. Tucker,

404 U.S. at 449, and mandating

resentencing. Two recent Supreme Court

cases implicate our decision.

In Johnson v. Mississippi, 486 U.S.

578 (1988) the sentencing jury considered a

New York conviction which the petitioner

maintained was constitutionally invalid |

because he was denied his right to appeal.

The questions sought to be raised in the

appeal of the New York case involved the

use of a coerced confession and the failure

to hold a hearing on the voluntariness of

the confession outside the presence of the

jury. After the Mississippi death sentence

was imposed, a New York court overturned

the prior conviction on the basis of

constitutional infirmity. On appeal of the

death sentence to the Supreme Court, the

Court decided that consideration of the

invalid New York conviction rendered the

Mississippi death sentence unlawful.

A-45

In Maleng v. Cook, 109 S.Ct. at 1927,

the habeas petitioner alleged that his

sentence was invalid because the court

considered a prior conviction which was

unconstitutioally obtained because he ' as

mentally incompetent to stand trial.

Although the Court's holding in Maleng was

limited to one of subject matter jurisdic-

tion, the outcome that resentencing under

Tucker might be necessary if the conviction

were ruled invalid was not questioned.

We are thus confident that an exten-

Sion of Tucker to this instance wherein

Clark was deprived of due process, a

juvenile proceeding affording significant

procedural rights is most appropriate. See

Sadler v. Sullivan, 748 F.2d 820, 824, n.12

(3d Cir. 1984) (Supreme Court has held that

under due process clause, fundamental

fairness requires that juveniles receive

benefits of essential constitutional

provisions, citing, In Re Gault, 387 U.S.

A-46

at 29 (motice of charges, right to counsel,

privilege against self-incrimination, right

to confrontation and cross-examination); In

Re Winship, 397 U.S. 358 (1970) (proof

beyond reasonable doubt); Breed v. Jones,

421 U.S. 519 (1975) (double jeopardy); see

also, Schmidt v. Hewitt, 573 F.2d 794 (3d

Cir. 1978) (if transfer to juvenile court

confers substantial benefit, transfer

hearing constitutionally required, citing

Kent v. United States, 383 U.S. 541).

Indeed, it is compelled.

Zv.

It is undisputed that the 1980 sen-

tencing court relied upon the prior convic-

tions of Clark as an adult when imposing

the 1980 sentence. Specifically the court

stated:

THE COURT: I also look upon it that he

has that proclivity to commit a crime

and that he does so with deliberate-

ness and does so when he doesn't

jeopardize himself too much, like

after his parole is over.

A-47

DEFENSE COUNSEL: Maybe that means --

THE COURT: He was given a break

before, and despite that he did not

respond. Id. at 13-14.

THE COURT: ...I will give [Clark] the

benefit of the doubt that he was not

convicted of rape or attempted rape in

the past, that it was felonious

restraint. I will give him that, but

he's committed a serious crime. He's

not free of any criminal conduct, all

of which I do consider. Id. at 25.

By employing the language "criminal

conduct", it is apparent that the sentenc-

ing court relied upon the fact that Clark

had committed previous offenses as an adult

- otherwise the terminology "criminal"

would not be utilized. Given this reli-

ance, the matter must be remanded for

resentencing on the 1979 conviction without

consideration of the prior offenses, the

punishment for which was obtained without

providing Clark his constitutionally

guaranteed rights of due process. we will

therefore reverse the district court's

Order and remand with instruction for the

A-48

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-1499

CLARK, JAMES

Appellant

VS.

COMMONWEALTH OF PA, et al.

SUR PETITION FOR REHEARING

Present: HIGGINBOTHAM, Chief Judge,

SLOVITER, BECKER, STAPLETON, MANSMANN,

GREENBERG, SCIRICA, COWEN, NYGAARD, Circul

Judges and GERRY, District Judge*

The petition for rehearing filed

by appellant in the above entitled case

having been submitted to the judges who

participated in the decision of this court

and to all other available circuit judges

of the circuit in regular active service,

and no judge who concurred in the decision

having asked for rehearing, a majority of

the circuit judges of the circuit in

—

regular active service not having voted for

A-50

rehearing by the court in banc, the peti-

tion for rehearing is denied.

BY THE COURT,

> . ~_ 2 - e ar

strict ige Gerry voted only as to

APPENDIX "C"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES CLARK : CIVIL ACTION

Vv. >: NOS. 85-6177

: 85-6178

COMMONWEALTH OF PA, et al. =: 86-6813

MEMORANDUM

O'NEILL, J. MAY 31, 1989

Three habeas corpus petitions,

which have been consolidated for review,

are before me following a Report and

Recommendation by the Magistrate? and the

lithe Magistrate recommended

that the matter be remanded to

Court of Common Pleas for

Philadelphia for a hearing de

novo on the issue of waiver. It

is FURTHER RECOMMENDED that if

the Court of Common Pleas for

Philadelphia determines on the

basis of the hearing that the

waiver of juvenile court

jurisdiction was improper, the

writ of habeas corpus should

issue and the petitioner's 1974

convictions be vacated and the

petitioner should be resentenced

(Footnote Continued)

A-52

timely filing of objections. After con-

ducting a de novo ata! of the petitions,

I conclude that they should be dismissed.

The Magistrate has set forth the

relevant facts in his Report and Recommen-

dation, at 1-6, and thus I need not repeat

those facts here. The petitions raise a

number of issues that I will address

seriatim: subject matter jurisdiction,

exhaustion, procedural default and the

merits of the petitions.

A. SUBJECT MATTER JURISDICTION

In order for this Court to

possess subject matter jurisdiction over

(Footnote Continued)

without consideration of those

convictions. If after a hearing

the court find [sic] that waiver

was proper, it may proceed, after

consideration of any motion or

further proceedings, to enter an

appropriate order.

Report and Recommendation, at 25-26.

A-53

these actions, the habeas petitioner must

be "in custody." 28 U.S.C. §2241(c); see

also 28 U.S.C. §2254(a). The petitioner

must be in custody when the petition for

the writ is filed. See Carafas v.

LaVallee, 391 U.S. 234, 238 (1968); Pringle

v. Court of Common Pleas, 744 F.2d 297, 300

(3d Cir. 1984). The relevant custody for

determining subject matter jurisdiction is

the custody imposed by the proceeding under

attack. See United States ex rel. Pitts v.

Rundle, 324 F.Supp. 480 (E.D. Pa. 1971)

(citing, inter alia, Peyton v. Rowe, 391

U.S. 54 (1968)). Respondent contends that

I have no subject matter jurisdiction over

Civil Action Nos. 85-6177 and 85-6178

because Clark was not in custody on the

challenged convictions when he filed these

actions. I agree.

To satisfy the custody require-

ment, the petitioner must be subject to

"restraints not shared by the public

A-54

generally,..." Jones v. Cunningham, 371

U.S. 236, 240 (1963); see also Barry v.

Brower, 864 F.2d 294, 296 (3d Cir. 1988)

(persons whose liberty is restricted are in

custody) .¢ "The custody requirement of the

habeas corpus statute is designed to

preserve the writ of habeas corpus as a

remedy for severe restraints on individual

liberty. Since habeas corpus is an ex-

traordinary remedy whose operation is to a

large extent uninhibited by traditional

rules of finality and federalism, its use

has been limited to cases of special

-rhe definition of custody extends

beyond actual physical custody. See, e.g.,

Jones, 371 U.S. at 240 (parolee); Justices

of Boston Municipal Court v. Lydon, 466

U.S. 294 (1984) (petitioner released on

personal recognizance awaiting trial de

novo); United States ex rel. Wojtycha v.

Hopkins, 517 F.2d 420, 423-24 (3d Cir.

1975) (petitioner on bail, with the

execution of sentence stayed pending

appeal; petitioner was placed on probation

and his failure to pay costs could have

resulted in incarceration).

A-55

urgency, leaving more conventional remedies

for cases in which the restraints on

liberty are neither severe nor immediate."

Hensley v. Municipal Court, 411 U.S. 345,

351 (1973); see also Tinder v. Paula, 725

F.2d 801 (lst Cir. 1984).

The coilateral consequences of a

conviction can prevent a habeas petition

from becoming moot; however, they cannot

confer jurisdiction on the court. See

Carafas, 391 U.S. at 236-38; Flittie v.

Solem, 867 F.2d 1053, 1055 (8th Cir. 1988);

3collateral consequences are those

"disabilities or burdens [which] may flow

from" a conviction. Carafas, 391 U.S. at

237.

40h Carafas, the petitioner was in

custody when he applied for the writ of

habeas corpus. 391 U.S. at 236, 239.

While his application was awaiting

appellate review, he completed his

sentence. Id. The Court held that

petitioner's release did not render his

cause of action moot because of the

collateral consequences flowing from the

conviction. Id. at 237-38, 239.

A-56

Ward v. Knoblock, 738 F.2d 134, 138-39 (6th

Cir. 1984), cert. denied, 469 U.S. 1193

(1985); Tinder, 725 F.2d at 803; Cotton v.

Mabry, 674 F.2d 701, 703 (8th Cir.), cert.

denied, 459 U.S. 1015 (1982); Douglas v.

Owens, No. 86-2494 (E.D. Pa. Feb. 17, 1987)

(LEXIS, Genfed library, Dist. file); 3 W.

LaFave & J. Israel, Criminal Procedure

§27.8 (b), at 386-88 (1984). A collateral

consequence does not constitute a suffi-

cient restraint on liberty to satisfy the

custody requirement. See, e.g., Ward, 738

F.2d at 138; Douglas, slip op. at 4-5.

Petitioner claims that he was in

custody when he filed the petitions chal-

lenging his 1974 convictions because these

convictions were considered when he was

sentenced on the 1979 conviction. > The

rt is undisputed that petitioner is

currently in custody on the 1979

conviction.

judge referred to petitioner's criminal

record during the sentencing and noted that

petitioner has "that proclivity to commit a

crime and that he does so with deliberate-

ness and does so when he doesn't jeopardize

himself too much, like after his parole is

over." Commonwealth v. Clark, Nos.

108-114, at 14 (Phila. Ct. Common Pleas

Sept. 17, 1980). The judge also noted:

"he's committed a serious crime. He's not

free of any criminal conduct, all of which

I do consider." Id. at 25.°

The judge's consideration of

petitioner's prior convictions is merely a

collateral consequence and thus is insuffi-

cient to confer jurisdiction over the

petitions. See Cotton, 674 F.2d at 703;

ror a detailed discussion of the

sentencing judge's consideration of

petitioner's prior convictions, see Report

and Recommendation, at 9 & n.4.

A-58

cf. Douglas, slip op. at 4 (prior juvenile

adjudication brought to attention of

sentencing judge in presentence report).

It is not unusual for a sentencing judge to

consider a defendant's criminal record in

determining what sentence to impose.

Allowing such consideration to satisfy the

custody requirement would expand the

definition of custody far beyond its

intended meaning.

The dertisions of the Court of

Appeals are not to the contrary. The Court

has held that "when a completed, earlier

sentence which is under attack:-directly and

indubitably affects the duration of a

petitioner's confinement under a later

sentence, there is no lack of custody or of

jurisdiction to entertain the application

for habeas corpus." United States v.

Jackson, 684 F.2d 245, 247 (3d Cir. 1982)

(per curiam). This "directly and indubita-

bly" standard has been satisfied only in

A-59

cases in which invalidating the first

conviction would require shortening the

second sentence by giving credit for time

served. See Lyons v. Brierley, 435 F.2d

1214 (3d Cir. 1970); United States ex rel.

DiRienzo v. New Jersey, 423 F.2d 224 (3d

Cir. 1970); see also Thomas v. Zimmerman,

583 F. Supp. 701 (E.D. Pa. 1984)./

Because petitioner was not in

custody when Civil Action Nos. 85-6177 and

85-6178 were filed, the petitions are

dismissed for lack of subject matter

jurisdiction. "To decide otherwise would

in [my] mind involve tenuously construing

custody virtually to read the word out of

‘petitioner does not contend that he

would receive such a credit on the sentence

for his 1979 conviction.

A-60

the statute." Rundle, 325 F. Supp. at 483

(original quotation marks omitted) .°

B. EXHAUSTION

I agree with the Magistrate that

the application of the fugitive forfeiture

rule, a state procedural default, is an

issue that petitioner did not need to

exhaust. See Report and Recommendation, at

18-19.

Petitioner has not raised the

issue of the applicability of the fugitive

forfeiture rule as an independent habeas

claim for which he seeks relief; rather, he

has invoked it as a response to respon-

dent's assertion that he committed a

procedural default which bars habeas

8 although I do not have jurisdiction

over these actions, I may review the

constitutionality of the 1974 convictions

to the extent permitted by United States v.

Tucker, 404 U.S. 443 (1972). See infra pp.

17-20.

relief. The consideration of whether a

state procedural requirement is an indepen-

dent and adequate state ground is governed

by federal law. "The Supreme Court ‘ha[s]

consistently held that the question of when

and how defaults in compliance with state

procedural rules can preclude our consider-

ation of a federal question is itself a

federal question.'" Reynolds, 843 F.2d at

719 (citing Henry v. Mississippi, 379 U.S.

443, 447 (1965); see also Sykes, 433 U.S.

at 75 n.3. In Murray v. Carrier, 477 U.S.

478, 489 (1986), the Court stated:

The question whether there is

cause for a procedural default

does not pose any occasion for

applying the exhaustion doc-

trine when the federal habeas

court can adjudicate the ques-

tion of cause--a question of

federal law--without deciding

an independent and unexhausted

constitytional claim on the

merits.

tn Carrier, the Court concluded that

(Footnote Continued)

A-62

Similarly, whether the fugitive

forfeiture rule is an independent and

adequate state ground is not an [sic]

substantive constitutional claim and thus

is properly before this court. See Bond v.

Fulcomer, 864 F.2d 3061 (3d Cir. 1989)

(Court of Appeals first determined whether

substantive issues had been exhausted, then

decided whether procedural default barred

federal court's review); Swanger v.

Zimmerman, 750 F.2d 291, 296-97 (3d Cir.

1984) ("Regardless of whether a petitioner

has exhausted available state remedies, a

default in compliance with state procedural

rules for raising a claim may be an inde-

pendent and adequate state ground for

(Footnote Continued)

the defendant's claim of ineffective

assistance of counsel, which may establish

cause for a procedural default, must first

be presented to the state courts because

ineffectiveness also constitutes an

independent constitutional claim. Id.

A-63

denial of federal habeas corpus re-

lief.").1°

C. PROCEDURAL DEFAULT

Respondent contends that peti-

tioner's escape after his 1979 conviction

constituted a procedural default which bars

my review of the issues raised in Civil

Action No. 86-6813. The Magistrate con-

cluded that petitioner's claims were not

barred by the fugitive forfeiture rule.

Report and Recommendation, at 12-16. When

the Magistrate filed his report, he did not

have the benefit of the decisions of the

Court of Appeals in Feigley v. Fulcomer,

833 F.2d 29 (3d Cir. 1987), Reynolds v.

Ellingsworth, 843 F.2d 712 (3d Cir.), cert.

denied, U.S. ; nue 8.6e. 602

10, ecause I conclude’ that exhaustion

of the default issue was not required, I do

not decide whether this issue was in fact

exhausted, that is, presented to the state

courts.

(1988), and Neely v. Zimmerman, 858 F.2d

144 (3d Cir. 1988). Upon consideration of

these decisions as well as of the existing

record, I reach the same conclusions the

Magistrate on the issue of procedural

default.

The chronology of events follow-

ing petitioner's 1979 conviction is cru-

Cial. On July 23, 1979, petitioner was

convicted of rape, robbery, unlawful

restraint and possession of an instrument

of a crime. He filed timely post-trial

11 On September 26, 1979, the date

motions.

that oral argument was scheduled on these

motions, petitioner escaped. The pending

post-trial motions were dismissed on

November 8, 1979. Petitioner was

llexhibit B to Respondent's Memorandum

on Jurisdiction and Procedural Default

lists the various claims that were raised

in these post-trial motions.

A-65

recaptured on July 25, 1980 and sentenced

on September 17, 1980. The Superior

Court affirmed his sentence on June 4,

1982. Petitioner has remained in custody

1 ep etitioner was sentenced to a term

of imprisonment of twelve to twenty-five

years. Sentence of the Court, Exhibit A to

Respondent's Memorandum on Jurisdiction and

Procedural Default, at 26-28.

13 petitioner raised the following

issues in his appeal to the Superior Court:

1) whether defendant waived his post-trial

motions by escaping; 2) whether defendant

was competent to stand trial; 3) whether a

prospective juror who advocated castration

was able to weigh the facts fairly and 4)

whether it might inflame a jury to show a

photograph containing the facial expression

of the victim. Brief of Appellant,

Commonwealth v. Clark, No. 2368 (August

1981), Exhibit B of Respondent's Memorandum

on Jurisdiction and Procedural Default. He

raised additional errors in a supplemental

brief: 1) the sentencing judge considered

an adult conviction when he was a juvenile

at the time of conviction 2) trial counsel

was ineffective at sentencing because he

failed to ask the trial court to reinstate

post-trial motions or to allow filing of

new motions and 3) counsel was ineffective

because he failed to present evidence or to

argue that defendant was a juvenile when

the prior offense was committed.

(Footnote Continued)

A-66

since his apprehension. In this habeas

action, petitioner alleges that his counsel

was ineffective at his sentencing in 1980,

which occurred after petitioner's return to

the jursidiction of the state court./4

(Footnote Continued)

Supplemental Brief for Appellant, Exhibit C

to Respondent's Memorandum on Jurisdiction

and Procedural Default.

14-necifically, petitioner raises the

following issues relating to the 1979

conviction:

3. The petitioner was deprived of

his right to the effective assis-

tance of counsel in his 1979-1980

Criminal proceedings by:

a. his trial counsel's failure

co advocate reinstatement of post-trial

motions after the petitioner was returned

to the jursidiction of the sentencing

court; and

b. his trial counsel's failure

to present evidence or argue that the

petitioner was a juvenile at the time of

his prior offenses. The effect of

counsel's error was that the sentencing

judge improperly considered the prior

convictions when determining the

petitioner's sentence.

Report and Recommendation, at 6-7. Fora

discussion of these issues, see infra pp.

(Footnote Continued)

A-67

Contrary to respondent's conten-

tion, I conclude that the Court of Appeals'

decision in Feigley v. Fulcomer, does not

control this case. After Feigley was

15 he filed several

convicted and sentenced,

pro se post-conviction petitions in the

Pennsylvania trial court which raised,

inter alia, a double jeopardy claim. 8:33

F.2d at 30. While these petitions were

pending, Feigley escaped. Id. The trial

judge subsequently dismissed Feigley's

(Footnote Continued)

27-28.

Petitioner admits that the fugitive

forfeiture rule bars this Court's review of

the validity of his conviction.

Petitioner's Memorandum Sur Effect of

Feigley v. Fulcomer, at l.

13tnitially, Feigley was sentenced to

an aggregate of ten to twenty years, which

was later modified by the state trial court

to an aggregrate of seven to twenty years.

833 F.2d at 30. The same court then

vacated the modified sentence and

reinstated the initial sentence. Id. The

petitioner challenged this reinstatement on

double jeopardy grounds. Id.

A-68

petitions because of his escape. Id. When

Feigley returned to the jurisdiction, he

filed petitions under the Pennsylvania Post

Conviction Hearing Act, which iaubuitiid the

double jeopardy claim he initially raised

in the trial court. Id. The state courts

concluded that his escape required dismiss-

al of these petitions as well. Id.

The Court of Appeals held that by

escaping during the pendency of his state

post-conviction petitions which raised his

double jeopardy claim, Feigley waived his

right to assert this claim in his habeas

petition. Id. at 30-31. Feigley did not

dispute that under Pennsylvania law an

escape waived the right to seek relief from

the Pennsylvania courts. Id. at 30. The

issue before the Court of Appeals was

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whether the state law procedural bar should

be disregarded. !®

In contrast to Feigley, it is

disputed in this case whether under Penn-

sylvania law Clark's escape constituted a

waiver of his habeas claims. The Court of

Appeals' decisions in Reynolds and Neely

guide my analysis of this issue. "[A]

federal court must assure itself that a

habeas petitioner has complied with rele-

vant state procedural requirements before

it can delve into claims of constitutional

error in a state conviction." Reynolds,

16,, determining whether the fugitive

forfeiture rule should be disregarded--a

federal question--the Court of Appeals in

Feigley rejected the "deliberate bypass"

standard and adopted the "cause and

prejudice" standard set forth in Engle v.

Isaac, 456 U.S. 107 (1982), and Wainwright

v. Sykes, 433 U.S. 72 (1977). 833 F.2d at

31. The Court concluded that Feigley did

not meet the cause requirement because he

did not proffer any reasons for his escape.

Id.

843 F.2d at 717. To that end, I must

resolve whether the state procedural rule

is an independent and adequate state

ground, an inquiry which is governed by

federal law and which requires review of

the State procedure as applied to the

specific facts of the case. Id. If the

procedural rule is not independent and

adequate, "a federal court may overlook the

State waiver and proceed to the merits of

the petitioner's constitutional claim."

Neely, 855 F.2d at 147; see also Reynolds,

843 F.2d at 717.

I must review the following

factors to determine the indepen-

dent/adequacy issue:

(1) whether the state procedural

requirement is stated in

unmistakable terms; (2) whether

the state courts have refused to

review the claims on the merits;

and (3) whether the state courts'

refusal in this instance is

consistent with other decisions.

Neely, 858 F.2d at 148 (citing Wainwright

v. Sykes, 433 U.S. 72, 85-86 (1977); see

also Bond v. Fulcomer, 864 F.2d 306, 311-12

(3d Cir. 1989); Reynolds, 843 F.2d at 719.

I conclude that the fugitive forfeiture

rule, as applied to this case, is not an

independent and adequate state procedural

ground that bars me from reviewing the

Claims set forth in Civil Action No.

86-6813.

The second requirement is clearly

satisfied here. The Pennsylvania Superior

Court declined to reach the merits of all

but one of petitioner's claims because

plaintiff escaped from custody while his

post-trial motions were pending. Common-

wealth v. Clark, 300 Pa. Super. 315, 446

A.2d 633, 633-34 (1982). The Court con-

cluded that the trial court did not err in

failing to reinstate Clark's post-trial

motions even after he was returned to

custody. Id. at 634. The Court based its

A-72

decision on, inter alia: Commonwealth v.

Galloway, 460 Pa. 309, 333 A.2d 741 (1975);

Commonwealth v. Albert, 260 Pa. Super. 20,

393 A.2d 991 (1978) (per curiam); Common-

wealth v. Boyd, 244 Pa. Super. 98, 366 A.2d

934 (1976). The Pennsylvania Supreme Court

denied Petitioner's Petition for Allowance

of Appeal. See Amended Petition for Writ

of Habeas Corpus, at 3.

The remaining two requirements

are not met in this case, however. First,

the fugitive forfeiture rule is not stated

in unmistakable terms. Neither the rele-

vant statute nor the applicable case law

addresses the issue whether a habeas

petitioner waives his right to litigate

claims which arise after recapture. The

applicable procedural rule, Pa. R. App. P.

1972(6), provides in relevant part that

“any party may move:...(6) To continue

generally or to quash because the appellant

is a fugitive;" on its face, the Rule

A-73

provides no guidance as to dismissal of

claims arising after recapture.

The case law does not distinguish

between claims arising before or after

recapture. I must look to the law in

existence when the petitioner allegedly

waived his rights. Reynolds, 843 F.2d at

722. In 1979, when petitioner escaped from

the jurisdiction, it was established that

when a defendant escapes after conviction,

he waives his right to have his post-trial

motions reviewed. See, e.g., Albert, 393

A.2d at 992; Boyd, 366 A.2d at 934-35.

When the defendant is at large, the pending

motions must be dismissed. See Common-

wealth v. Tomlinson, 467 Pa. 22, 354 A.2d

254 (1976); Albert, 393 A.2d at 992. When

the fugitive returns to the jurisdiction,

the Court may, in its discretion, permit

reinstatement or refiling of the motions.

Albert, 393 A.2d at 992: Commonwealth v.

Borden, 256 Pa. Super. 125, 389 A.2d 633

A-74

(1978) ;Boyd, 366 A.2d at 935. The same

rules were applied to escapes when an

appeal was pending. See Galloway, 333 A.2d

at 743; Albert, 393 A.2d at 992-93.

One rationale for Pennsylvania's

fugitive forfeiture rule “rest{ed] upon the

inherent discretion of any court to refuse

to hear the claim of a litigant-who, by

escaping, has placed himself beyond the

jurisdiction and control of the Court, and,

hence, might not be responsive to the

judgment of the Court." Galloway, 333 A.2d

at 743; see also Borden, 389 A.2d at 634.

In Boyd, the Superior Court premised the

fugitive forfeiture rule on a waiver

rationale: "A defendant who runs away

after having been convicted of the charge

Or charges against him waives his right to

a judicial review of his case.... [The

courts] encourage escapes and facilitiate

the evasion of the justice of the state by

extending to escaped convicts the means of

A-75

reviewing their convictions." Boyd, 366

A.3a4 at 935.17

None of above-cited Pennsylvania

decisions, which reflect the state of the

law at the time of petitioner's escape,

applied the rule to claims arising after

the petitioner was returned to the juris-

diction of the court or suggested that the

rule should be so applied. Moreover, the

rationales justifying this rule, as set

17 the language of the Feigley decision

also suggests that a waiver theory

justified the fugitive forfeiture rule:

It is enough that [the defendant]

obviously knew that by attempting

an escape which he hoped would be

permanent, he was deliberately

bypassing the entire legal

system. “Even though his action

was uncounselled, in a very

practical sense petitioner

knowingly abandoned" the state

court's adjudication of his

federal claims.

Feigley, 83° “.2d at 32 (citations

omitted)

forth in Galloway and Boyd, do not warrant

application of this rule to such claims.

Therefore, petitioner could not have known

that his escape would waive claims that did

not exist at that time. A state procedural

_bar is not independent and adequate where

the

defendant could not fairly be

deemed to have been apprised of

its existence. Novelty in

procedural requirements cannot be

permitted to thwart [federal]

review...applied for by those

who, in justified reliance upon

prior decisions, seek vindication

in state courts of their federal

constitutional rights.

Reynolds, 843 F.2d at 721 (citing NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449,

457-58 (1958).

Simply because the Superior Court

determined that Clark's claims were waived

does not mean that the fugitive forfeiture

rule was stated in unmistakable terms. In

its decision, the Superior Court did not

distinguish between petitioner's claims

A-77

arising before and after his recapture, /8 al

distinction which is crucial in light of

the rationales for the fugitive forfeiture

rule and of the fact that no other court in

Pennsylvania had extended this rule to such

Claims. As stated by the Court of Appeals

in Reynolds, 843 F.2d at 270:

Where a purported new, sweeping

procedural requirement is not

even explicitly formulated in the

opinion upon which the state

courts rely to deny review,

however, it lacks the requisite

degree of specifically and

clarity--in short, the “unmistak-

able terms"--necessary to bar

federal courts from habeas

review.

180he basis for the Superior Court's

decision is not clear. The Court concluded

"that the trial court did not abuse its

discretion in declining to reinstate

appellant's post-trial motions even after

he was returned to its jurisdiction."

Clark, 446 A.2d at 634. Notwithstanding

the Court's express reference to Clark's

post-trial motions, the Court dismissed all

of petitioner's claims (except his

competence to stand trial), including those

arising following recpature which were not

set forth in the post-trial motions.

A-78

Second, the Superior Court's

invocation of the fugitive forfeiture rule

is not consistent with other state deci-

sions. There is a "tangible absence of

authority", see Reynolds, 843 F.2d at 722,

thus making it difficult for me to deter-

mine the consistency issue. Notwithstand-

ing this paucity of case law, I conclude,

based primarily on the rationales for the

fugitive forfeiture rule in existence at

the time of Clark's escape, that the

Superior Court applied the fugitive forfei-

ture rule inconsistently. Petitioner was

in custody when he was sentenced and at all

times thereafter; thus, he was never

unresponsive to the state court's judgment.

Moreover, by escaping Clark could not have

waived knowingly or voluntarily claims not

: 19

yet in existence.

For the foregoing reasons, I

conclude that the fugitive forfeiture rule

19 the issue of the inconsistent

application of the fugitive forfeiture rule

in Pennsylvania has been raised. See

Report and Recommendation, at 13-14;

Respondent's Memorandum on Jurisdiction and

Procedural Default, at 6-8; Respondent's

Objections, at 3-4; Petitioner's Memorandum

sur Jurisdiction and Procedural Default, at

3-5. Although I sense some modification of

the Galloway approach in Commonwealth v.

Passaro, 504 Pa. 611, 476 A.2d 346 (1984),

as did the Court cf Appeals in Feigley, 833

F.2d at 32, I find the distinctions

irrelevant for two reasons. First, I must

look to the law at the time of petitioner's

escape, when such purported inconsistency

did not exist; courts had the discretion to

grant or deny reinstatement or refiling of

the motions. Second, no case, either prior

or subsequent to 1979, involves claims

arising after recapture. I do not agree

with respondent's contention that extending

the fugitive forfeiture rule to

petitioner's claims is an exercise of

discretion under the existing rule. Cf.

United States v. Holmes, 680 F.2d 1372

(lith Cir. 1982) (per curiam), cert.

denied, 460 U.S. 1015 (1983) (in dicta,

courts stated that claims arising at

sentencing not waived by prior escape).

A-80

is not an independent and adequate bar to

habeas relief.

D. ‘THE MERITS OF THE 1974

PETITIONS

Petitioner contends that his

constitutional rights were violated by the

state trial court's failure to conduct a

hearing to determine whether he should have

been tried as an adult for the 1973 sexual

assaults, and the failure of his trial

counsel to discover petitioner's true age

and to notify the Court of this fact.

1. Reviewability

Under the doctrine of United

States v. Tucker, 404 U.S. 443, 448 (1972),

resentencing is required when a judge

considers previous convictions that were

unconstitutionally obtained. In Tucker,

the trial court gave specific consideration

to two prior convictons that were infirm

constitutionally because tey were obtained

without the assistance of counsel, in

A-81

violation of Gideon v. Wainwright, 372 U.S.

335 (1963). Tucker, 404 U.S. at 443; see

United States ex rel. Fletcher v. Walters,

526 F.2d 359 (3d Cir. 1975). The Tucker

Court remanded the case for resentencing

because the "sentence [was] founded at

least in part upon misinformation of

constitutional magnitude." Id. at 447;7°

see also Thomas, 583 F. Supp. at 710. The

only relief permitted under Tucker is

resentencing on the subsequent conviction,

which is the only relief petitioner seeks

in this case. See Amended Petition for

Habeas Corpus, No. 86-6813, at 5.

Because petitioner seeks relief

only from the sentence imposed in 1980, I

20mhe rationale behind the Tucker

decision is that a sentencing judge might

view a defendant differently if the judge

is aware that the defendant was convicted

and imprisoned unconstitutionally in the

past. 404 U.S. at 448.

A-82

may review the constitutionality of the

1974 convictions even though I have found

Supra pp. 2-6, that the custody requirement

was not satisfied as to the petitions

challenging those convictions. Accord

Thomas, 583 F. Supp. at 707 (Tucker doc-

trine gives court jurisdiction to review

prior conviction); cf. Fletcher, 526 F.2d

at 361-62 (petitioner challenging sentence

pursuant to Tucker need not exhaust under-

lying constitutional claims). At oral

argument, counsel for respondent did not

dispute that review of the 1974 convictions

under Tucker and Fletcher is proper.“

2lon December 7, 1973, petitioner was

arrested on charges relating to two

separate sexual assaults, which occurred on

November 5 and November 26, 1973. He pled

guilty to charges arising out of the

November 5 incident and was found guilty,

following a bench trial, of charges arising

out of the November 26 incident.

Respondent argues, apparently for

the first time at oral argument, that the

(Footnote Continued)

A-83

"A successful challenge to a

presumptively valid sentence based on

Tucker...requires three elements: (1) a

prior conviction rendered invalid by

Gideon; (2) the sentencing judge's mistaken

belief that the prior conviction was valid;

and (3) enhancement of the defendant's

sentence because of it." Farrow v. United

(Footnote Continued)

guilty plea waived the claims asserted in

Civil Action No. 85-6177, except any claims

attacking the voluntary and intelligent

character of the plea. In support of its

argument, respondent cites McMann v.

Richardson, 397 U.S. 759 (1970); Siers v.

Ryan, 773 F.2d 37 (3d Cir. 1985), cert.

denied, U.S. , 57 U.S.L.W. 3688

(1989); and United States ex rel. Davis v.

Johnson, 495 F.2d 335 (3d Cir.), cert.

denied, 419 U.S. 878 (1974).

The constitutional claims raised

in No. 85-6178 are identical to those

raised in No. 85-6177, at 3-5, with Amended

Petitiou for Writ of Habeas Corpus, No.

85-6178, at 3-5. Respondent does not

allege that the claims raised in No.

85-6178 are unreviewable. Thus, even

assuming petitioner waived the due process

and ineffective assistance of counsel

claims set forth in 85-6177, they are

preserved in 85-6178.

A-84

States, 580 F.2d 1339, 1344 (9th Cir.

1978); cf. Fletcher, 526 F.2d at 362-64

(applying Tucker analysis). I do not

decide whether the Tucker doctrine extends

to claims of violations of due process and

of violations of the right to effective

assistance of counsel“, nor do I decide

22, number of Courts have extended

Tucker to convictions invalidated on

constitutional grounds other than the lack

of representation by counsel. See, e.g.,

Jefferson v. United States, 488 F.2d 391,

393 (5th Cir. 1974) (Fifth Amendment right

against self-incrimination); Martinez v.

United States, 464 F.2d 1289, 1290-91 (10th

Cir. 1972) (invalid statutory presumption);