On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. No. 85-1037.
Stapleton, Mansmann and Garth, Circuit Judges.
This case comes before us as an appeal of the district court's June 22, 1987 order which dismissed defendant George Campas' habeas corpus action as a delayed petition pursuant to Rule 9(a) governing 28 U.S.C. 2254 cases. Because the record has now been augmented by post argument submissions, and among other issues, a question of exhaustion remains unresolved, we will vacate the district court's order and remand for further proceedings.
On June 13, 1968, Campas was convicted by the Luzerne County Court of Common Pleas on charges of robbery by accomplice, conspiracy, armed robbery and receiving stolen property. Campas was sentenced to a minimum of six years, six months and one day and a maximum of 22 years.
On July 22, 1985, Campas filed his petition of habeas corpus alleging that: 1) he was denied counsel at his preliminary hearing, a critical step in the criminal proceedings; 2) he was arrested without probable cause; 3) evidence was obtained in violation of the Fourth Amendment; 4) a defective search warrant was issued; and finally, 5) he received ineffective assistance of counsel in that various prior counsel of the defendant did not properly pursue all of his appellate rights. The state district attorney (Luzerne County) moved to dismiss Campas' petition on the grounds that Campas failed to satisfy the requirements of 28 U.S.C. 2254(d)1-8. At that time, the State did not claim prejudice due to Campas' 17 year delay in filing.
On March 31, 1986, the district court, sua sponte, raised the Rule 9(a) question of prejudice resulting from the delay in Campas' habeas filing.*fn1 Campas responded that the burden of prejudice under Rule 9(a) should be properly placed on the State.
On May 21, 1986, the district court ordered the State to explain how it had been prejudiced. On May 30, 1986, the State responded with an affidavit stating that the prosecutor who had prosecuted Campus had died. Campas countered that the death of the prosecutor did not constitute prejudice since other witnesses were alive and the issues which Campas had raised did not turn upon the availability of the prosecutor.
On September 26, 1986, the district court ordered the State to respond once again to Campas' arguments. The State answered with an affidavit averring, among other things, that the chief prosecution witness, the public defender who defended Campas and the magistrate who conducted the preliminary hearing were all dead; that no transcript of the preliminary hearing existed; and that it was unable to locate the whereabouts of the trial transcript.
David Kurtz, Campas' former counsel, responded with a letter which attached photostatic copies of all of the docket entries from the Court of Common Pleas. He argued that the documents established the merit of Campas' habeas petition. Kurtz, also indicated that a trial transcript would be filed as soon as it was reproduced.
On March 9, 1987, the district court requested detailed briefs on whether Campas had overcome the State's particularized showing of prejudice. (App. 14).
On March 17, 1987, the State filed another affidavit in which it reiterated its inability to find any state court records and again asserted that the key figures in the 1968 prosecution of Campas were dead.
On March 30, 1987, Kurtz filed an affidavit again alluding to a tape recording of the preliminary hearing and asserted, that according to information received by Campas' family, the file of Campas' state court criminal proceedings was available on microfilm at the Luzerne County Court House. (App. 49).
The district court in its June 22, 1987 opinion, referred to Kurtz' affidavit stating: "affiant [Kurtz] believes that although almost all of the key witnesses are dead, or unable to recall specific details regarding petitioner's case, a certified copy of the file will substantiate petitioner's [Campas'] claims. . . . " (App. 15).
Kurtz' affidavit did not explain what the file would contain. Kurtz also maintained that Campas was financially unable to reproduce the records and that the State should shoulder that expense.
Based on these assertions by Campas, the district court on June 22, 1987 dismissed Campas' petition holding that Campas had failed to overcome the State's particularized showing of prejudice as required by 9(a) of the Rules governing 28 U.S.C. 2254 cases. The district court ruled that: 1) Campas had only made unsubstantiated and vague claims that a tape recording of the preliminary hearing might exist and that State records allegedly located in the Luzerne County Court House might eliminate or alleviate the prejudice to the State; 2) Kurtz, Campas' counsel, had never informed the court where the purported tape recordings were located or what efforts he had made to obtain them; 3) from the record it appeared Kurtz himself had not gone to the Court House to review the records; 4) no portion of Campas' State criminal file was referred to in support of Campas' contentions; and, 5) neither Campas nor his family had submitted financial documentation to substantiate their claim that they could not pay for the cost of reproducing the record and documents.
Campas' present appeal is from that order.
In reviewing a dismissal of a habeas corpus petition dismissed under Rule 9(a), we not only must determine that the State has met its burden of demonstrating prejudice, Hill v. Linahan, 697 F.2d 1032 (11th Cir. 1983), but we also must not overlook our long established requirement that a petitioner, claiming an unconstitutional conviction pursuant to 28 U.S.C. 2254 is obliged to exhaust his ...