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United States v. Brierley

decided: May 17, 1972.

UNITED STATES OF AMERICA EX REL. JAMES MORRIS FLETCHER, APPELLANT,
v.
JOSEPH R. BRIERLEY, APPELLEE



Max Rosenn and James Rosen, Circuit Judges, and VanArtsdalen, District Judge.

Author: Per Curiam

Opinion OF THE COURT

The relator, James Morris Fletcher, is no stranger to the federal courts. In fact, he has made a virtual career out of filing 28 U.S.C. ยง 2254 habeas petitions. According to one federal judge's tabulation, Fletcher had filed his twenty-first petition for habeas relief as far back as February, 1970.*fn1 Not discouraged by the denial of that application Fletcher proceeded to churn out further petitions.*fn2 One of these, an application denied by Judge Gourley on September 24, 1970, is before us now.

Fletcher has filed a scrambled and conclusory brief, but since he is proceeding pro se, we have made a special effort to discern his arguments and to uncover the facts crucial to his claims. Carr v. Sharp, 454 F.2d 271 (3d Cir. 1971); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. den. 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691 (1970); Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969), cert. den. 396 U.S. 941, 90 S. Ct. 378, 24 L. Ed. 2d 244 (1969).

Relator entered a guilty plea in 1966 in a Pennsylvania prosecution for receiving stolen goods and for prison breach. He was sentenced to 8 1/2 to 19 years imprisonment. The court did not advise Fletcher of his right to a direct appeal and Fletcher took none. The post conviction relief he did seek from the trial court was denied. Acting without the benefit of counsel, Fletcher appealed to the Superior Court of Pennsylvania, which affirmed the trial court's decision. Commonwealth ex rel. Fletcher v. Maroney, 210 Pa.Super. 96, 232 A.2d 206 (1967). The Pennsylvania Supreme Court denied his application for allocatur.

In his habeas petition, Fletcher raised two constitutional challenges to his sentence. First, he claimed that his gulty plea was not voluntarily entered. Second, he contended that he was denied the right to counsel on his appeal from his state court conviction. Fletcher had argued the issues in prior habeas proceedings, but had been unsuccessful on both claims. The attack on the guilty plea had been rejected after it had been considered on its merits. The denial of counsel claim had been dismissed because it had become moot by the time the relator had exhausted his state remedies.

The challenge to the guilty plea was presented to Judge Marsh in prior habeas proceedings in the district court. Judge Marsh, who thoughtfully considered this claim and carefully marshalled the facts pertinent to it, concluded that "relator voluntarily entered his pleas of guilty after having consulted with competent counsel."*fn3 The judge determined that the ten additional allegations raised by Fletcher's petition were also meritless and he denied relief.*fn4

Shortly thereafter, Fletcher filed a second petition before Judge Marsh. This application was virtually identical to the earlier one, except that it contained a claim predicated on Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). Judge Marsh treated the petition as an application for reconsideration and reaffirmed his prior findings. He did not reach the merits of the Douglas claim, however, because Fletcher had not presented it to the Pennsylvania state courts. We affirmed the district court's actions in an opinion filed on July 8, 1969. The petition for rehearing in the district court was echoed by a similar application to us. We denied rehearing on September 5, 1969. United States ex rel. Fletcher v. Maroney, 413 F.2d 15 (3d Cir. 1969), cert. den. 396 U.S. 948, 90 S. Ct. 393, 24 L. Ed. 2d 253 (1969), reh. den. 396 U.S. 1031, 90 S. Ct. 592, 24 L. Ed. 2d 530 (1970).

The habeas petition Fletcher filed before Judge Gourley did not add anything new to the guilty plea contention considered and rejected by Judge Marsh. Judge Gourley, accordingly, denied Fletcher relief.

It is true that "conventional notions of finality of litigation have no place [in habeas suits,] where life or liberty is at stake and infringement of constitutional rights is alleged." Sanders v. United States, 373 U.S. 1, p. 8, 83 S. Ct. 1068, p. 1073, 10 L. Ed. 2d 148 (1962). Nonetheless, as Sanders explains, a habeas petitioner cannot be permitted to inundate the federal courts with successive repetitive petitions seeking "to retry * * * claim[s] previously fully considered and decided against him." supra, at p. 9, 83 S. Ct. at p. 1074.

Under Sanders a trial judge may deny a petitioner the opportunity to raise a claim where (1) "the same ground presented in the subsequent application was determined adversely to the applicant on the prior application," (2) "the prior determination was on the merits," and (3) the petitioner has failed to carry his burden of showing that "the ends of justice would be served by permitting redetermination of the ground. " Supra, at pp. 15, 17, 83 S. Ct. at p. 1077.*fn4a These conditions were all met in the instant case and we, therefore, uphold Judge Gourley's decision denying Fletcher the opportunity to relitigate the guilty plea contention.

Fletcher's second claim in the habeas application submitted to Judge Gourley was that he had been denied his right to counsel on his appeal from his post conviction proceedings. Douglas v. California, supra. This argument requires more extended discussion, in view of events which transpired during the course of the state courts' consideration of it.

The Douglas argument was raised before Judge Marsh, but was not considered by him, because it had not been presented to the state courts for their determination. While the appeal to the Third Circuit was pending, Fletcher returned to the state court to litigate this claim. After a hearing at which Fletcher was represented by appointed counsel, A. J. Marion, Esquire, the trial court held that Douglas was inapplicable in view of Flecther's waiver of his right to counsel on appeal.*fn5 The relator filed a petition for rehearing which was denied.

On February 24, 1969, the relator filed an in forma pauperis appeal with the Superior Court of Pennsylvania and Mr. Marion was reassigned to him for the appeal. At this point, Fletcher had an inexplicable change of heart and filed a petition "waiving counsel on said appeal" and requesting the court to remove his appointed counsel.*fn6 This action is particularly difficult to comprehend because up until this point Fletcher had relied on Douglas and argued that the absence of counsel on his ...


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