Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil No. 86-00004.
Aldisert, Chief Judge, Weis, Circuit Judge, and Fisher, Judge.*fn*
The question for decision in this appeal from a denial of federal habeas corpus is whether the district court erred in denying relief on the basis that Steven Schandelmeier has not exhausted his remedies in the state court system. The state court exhaustion requirement is mandated by statute under 28 U.S.C. § 2254(b) and has developed through decisional law in applying principles of comity and federalism as to claims brought under 28 U.S.C. § 2241. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-91, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973). "It has been settled for nearly a century that a state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts." Duckworth v. Serrano, 454 U.S. 1, 3, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981) (per curiam).
This doctrine requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to the state's highest court for consideration. See Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). "An exception is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." Serrano, 454 U.S. at 3; see also Beaty v. Patton, 700 F.2d 110, 112 (3d Cir. 1983) (per curiam). Appellant argues in this appeal that this exception does apply here because there was no opportunity for him to obtain redress in the state court system.
Schandelmeier was arrested on various charges on December 11, 1980, including those resulting in Blair County Criminal Action Numbers 75 and 76 of 1981. He was charged with robbery, theft by unlawful taking or disposition, receiving stolen property, criminal conspiracy, recklessly endangering another person, carrying firearms without a license, and committing crimes with firearms. See app. at 19-20. He has been in continuous incarceration since his arrest. After a trial before the Court of Common Pleas of Blair County, Pennsylvania, on January 13, 1982, a jury found him guilty of robbery, theft by unlawful taking or disposition, receiving stolen property, and recklessly endangering another person on the charges at No. 76; robbery, theft by unlawful taking or disposition, receiving stolen property, criminal conspiracy, and recklessly endangering another person at No. 75. On January 19, 1982, Schandelmeier filed timely motions with the trial court for a new trial and arrest of judgment. Those motions had not yet been disposed at the time Schandelmeier instituted this action in federal court, but have now been decided.
Schandelmeier alleges that by letters he requested that the court timely sentence him. Presumably, those letters requested that his post-trial motions be heard and disposed, so that a sentence could be imposed, but the Commonwealth claims to have no knowledge of the alleged letters. In an opinion and order filed on October 22, 1986, Schandelmeier's post-trial motions were denied by the Court of Common Pleas of Blair County. Letter from District Attorney of Blair County (October 23, 1986) (transmitting Commonwealth v. Schandelmeier, Nos. 81-75 & 81-76 (Pa. C.P. Oct. 22, 1986)). It is significant that Schandelmeier has not filed any motion in a state court asserting a claim based on the state court's delay in deciding his post-trial motions or in sentencing him.
On January 2, 1986, Schandelmeier filed a pro se petition for habeas corpus in the federal system, alleging that he was being held in violation of the fifth, sixth, and fourteenth amendments to the United States Constitution. These violations were claimed to have arisen from the fact that Schandelmeier had not yet been sentenced on the charges at Nos. 75 and 76, notwithstanding that almost four years had elapsed since his conviction on those charges. None of these claims have been asserted in the state court system.
The only actions taken by Schandelmeier to obtain state relief on the grounds asserted in his federal petition are the letters that he allegedly wrote to the trial court. As heretofore stated, the Commonwealth denies any knowledge of these letters and none are found in the appendix. Furthermore, these alleged letters are not sufficient for asserting speedy trial rights, see Commonwealth v. Pounds, 490 Pa. 621, 629, 417 A.2d 597, 600 (1980); Commonwealth v. Glover, 303 Pa. Super. 229, 449 A.2d 662 (1982), aff'd, 500 Pa. 524, 458 A.2d 935 (1983); they also cannot be deemed sufficient to demonstrate exhaustion of state remedies. After receiving the Commonwealth's answer to Schandelmeier's petition, the United States Magistrate issued a report and recommendation on March 12, 1986, suggesting that Schandelmeier's petition be dismissed without prejudice for failure to exhaust state remedies. After conducting a de novo review, the district court adopted the magistrate's report and recommendation, and ordered that the petition for mandamus, as well as a certificate of probable cause, be denied. App. at 60-61. Schandelmeier has appealed the district court's order. We granted a certificate of probable cause and motion for appointment of counsel. In a federal habeas corpus proceeding, a determination that state remedies have not been exhausted involves the application and interpretation of legal precepts, and therefore receives plenary review on appeal. Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir. 1983).
The bases for Schandelmeier's post-trial motions were claims of trial errors and insufficiency of evidence. His habeas petition, however, is based entirely upon the delay in the state court's ruling on his motions, and the concomitant delay in sentencing him. The issue, then, is whether Schandelmeier should have raised his delay-based claim in the state courts in order to qualify for consideration in the federal court system.
Schandelmeier argues that because sentence has not been imposed, he is unable to seek relief in the appellate courts of Pennsylvania. See Pa. R. App. P. 301, 341; Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971). Nevertheless, we are persuaded that proceedings are available by which Schandelmeier could have brought his delay-based claim to the attention of the state courts. Under Rule 1122 of the Pennsylvania Rules of Criminal Procedure, Schandelmeier could have filed a written application to dismiss the charges with prejudice on the basis of the delay in the decision on his post-trial motions. See Commonwealth v. Glover, 500 Pa. 524, 527, 458 A.2d 935, 937 (1983); see also United States ex rel. Geisler v. Walters, 510 F.2d 887, 889 (3d Cir. 1975). By doing so, Schandelmeier would have ...