On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil Action No. 86-1676
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
In this appeal from the dismissal of a petition for writ of habeas corpus challenging a state conviction, 28 U.S.C. § 2254 (1982), petitioner John Keller claims that he was denied the right to trial by an impartial jury. Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966) (per curiam); Turner v. Louisiana, 379 U.S. 466, 467-71, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965). We will vacate the order of the district court dismissing the petition, and remand this case to the district court for an evidentiary hearing. We will, in addition, deny the petition as to one of the claims presented.
Keller was convicted by a jury in the Court of Common Pleas of Allegheny County, Pennsylvania, of rape, involuntary deviate sexual intercourse and simple assault, on June 11, 1976. On June 21, his attorney wrote a letter to the trial judge informing him that one of the jurors had visited the attorney that day. This juror had informed the attorney that
she and four other jurors did not agree with the verdict but did not realize at the time of the poll that they could disagree . . . . She also indicated that, during the course of deliberations, there was a request to see [the judge]. The tipstaff advised [the jurors] that they could not see [the judge]; they were not advised that they could direct an inquiry to [the judge]."
Letter from H. David Rothman, Esq. to the Honorable Joseph H. Ridge (June 21, 1976), reprinted in Appendix ("App.") at 353. Counsel then filed a post-trial application to vacate the verdict, which alleged that the jurors' failure to understand the polling procedures, and the tipstaff's failure to inform the jury that it "could have communicated with the [trial judge] in writing," deprived Keller of "a fair trial, due process, and equal protection of the law." App. at 71. He requested a hearing and moved to vacate the verdict. At the sentencing on July 6, 1976, the trial court denied this motion without a hearing, id. at 80, and sentenced Keller to a term of two and a half to five years. Id. at 87.
On direct appeal, the Superior Court affirmed the sentence and conviction without opinion. App. at 370. The Supreme Court of Pennsylvania denied allocatur on August 9, 1978. Id. at 390. A request for reconsideration of this decision was denied by the Supreme Court on September 28, 1978. Id. at 356.
Keller then pursued claims through the procedures set forth by the Pennsylvania Post-Conviction Hearing Act ("PCHA"). Pa. Cons. Stat. tit. 42, §§ 9541-9549 (Purdon 1982) (current version at 1988 Pa. Legis. Serv. 229-33 (Purdon)). He filed his first PCHA petition pro se on December 28, 1978. The court appointed counsel and returned the petition to counsel for more specific pleading. Keller filed a second PCHA petition pro se in January 1979. App. at 120. This petition was also referred to counsel. Id. at 121. However, at the time Keller filed his first petition for writ of habeas corpus in federal district court on November 6, 1984, App. at 417-429, neither of the PCHA proceedings had progressed further.*fn1 Keller's first habeas corpus petition asserted numerous grounds for relief, many of which had not been presented to the state courts. App. at 417-29. The district court dismissed this first petition for failure to exhaust state remedies. App. at 439-40. This court denied Keller's subsequent petition for certificate of probable cause on December 27, 1985, id. at 469, and the Supreme Court denied certiorari on April 30, 1986. Id. at 470.
By the time Keller filed the instant petition for writ of habeas corpus in federal district court on July 28, 1986, the trial court had denied both the PCHA petitions (which had apparently been consolidated), and an appeal was pending before the Pennsylvania Superior Court. Finding that Keller's second habeas petition contained only exhausted claims of the denial of a trial by a fair and impartial jury, the federal magistrate who reviewed the case nevertheless recommended dismissing the petition. App. at 472. The magistrate stated that "considerations of comity would appear to dictate that this court not hear the petition on the merits while petitioner's [PCHA] appeal is pending before the Superior Court of Pennsylvania." Id. at 473. After receiving Keller's objections to the magistrate's report, the district court adopted it and dismissed the habeas petition without prejudice on January 29, 1987. Keller v. Petsock, No. 86-1676, slip op. at 1-2 (W.D. Pa. Jan. 29, 1987), reprinted in App. at 487-88. Keller then took the instant appeal.
The PCHA proceedings continued to wind their way to an end. On December 9, 1986, the Pennsylvania Superior Court, after noting the "reprehensible delays which occurred in this case," App. at 477, affirmed the denial of the PCHA petition.*fn2 Id. Keller then filed a petition for allocatur to the Supreme Court of Pennsylvania on January 8, 1987. This petition was denied on August 6, 1987.*fn3
We must decide three matters: (1) whether state court remedies with respect to Keller's legal claims have been exhausted;*fn4 (2) whether Keller's claims merit further fact-finding; and ...