On Appeal from the United States District Court For the Middle District of Pennsylvania. (D.C. Civil No. 89-01765)
Before: Sloviter, Chief Judge, Cowen and Rosenn, Circuit Judges
We are once again called upon to examine the actions taken by a state prisoner in state court to determine whether he fulfilled his obligation to exhaust state remedies and avoid procedural defaults as required before a federal court can consider the merits of his petition for a writ of habeas corpus.
William Caswell, a prisoner in state custody, appeals to this court from the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction to hear this appeal under 28 U.S.C. § 1291.
Background Facts and Procedural Posture
On May 13, 1980, Caswell was arrested on various state charges relating to five separate armed robberies. There were four separate trials in the Court of Common Pleas, Lackawanna County, Pennsylvania between September, 1980 and April, 1981 and Caswell was convicted each time. The present matter arises out of Caswell's conviction on February 23, 1981, for robbery, conspiracy, theft, receiving stolen property and firearms violations with regard to the robbery of "Bill's Market" in Daneville, Pennsylvania on April 12, 1980.
Caswell claims that during the course of the proceedings in this and the other cases, he became dissatisfied with his trial attorney. On August 14, 1980, he filed a motion requesting new counsel, which the Court of Common Pleas denied on November 6, 1980. Caswell further claims that his disagreements with his trial counsel continued after the denial of this motion, and that his attorney refused his requests to oppose three Commonwealth motions made under Rule 1100 of the Pennsylvania Rules of Criminal Procedure*fn1 for extensions of time within which to bring Caswell to trial.*fn2
After Caswell's conviction, but prior to sentencing, the trial court did appoint new counsel for Caswell. Caswell was sentenced to a term of ten to twenty years, and his petition for reconsideration of sentence was denied. On direct appeal within the state system, judgment of his sentence was affirmed, and Caswell's petition for allocatur to the Pennsylvania Supreme Court was denied.
Thereafter, Caswell filed a pro se petition in the Court of Common Pleas under the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pa. Cons. Stat. Ann. § 9541 et seq. (1982),*fn3 in which he claimed that the ineffective assistance of his trial counsel amounted to a violation of his Sixth Amendment right to a fair trial. Caswell based his ineffective assistance of counsel charge on several grounds, including, inter alia , failure to challenge all Commonwealth extension motions under Rule 1100 (Rule 1100 Extension); failure to file for a mistrial when one of the Commonwealth's witnesses talked to the jury during a recess (Improper Juror Contact);*fn4 failure of trial counsel to withdraw from the case (Irretrievable Breakdown) and failure to file a sequestration order because of publicity surrounding the trial (Jury Sequestration). Caswell also alleged ineffectiveness of appellate counsel for not raising the issue of trial counsel ineffectiveness on direct appeal and claimed that the Commonwealth directly violated his rights to a speedy trial under both Rule 1100 and the U.S. Constitution. The Court of Common Pleas rejected Caswell's petition on the merits, concluding that neither trial nor appellate counsel was ineffective and further finding that Caswell's Rule 1100 rights had not been violated.
Caswell, with the help of new counsel, appealed this decision to the Pennsylvania Superior Court. In its opinion dated March 4, 1988, the Superior Court concluded, inter alia, that trial counsel was not ineffective because he had decided not to oppose the Commonwealth's second and third requests for extension under Rule 1100; that Caswell had presented no evidence at the PCHA hearing concerning the Improper Juror Contact claim beyond his own self-serving and uncorroborated allegations, which were directly contradicted by trial counsel; and that Caswell presented no evidence to show how failure of trial counsel to request jury sequestration had adversely affected his right to a fair trial. The Superior Court also found that the trial court did not abuse its discretion when it denied Caswell's August 14, 1980 motion for new counsel. Last, the Superior Court concluded that no ineffective assistance of counsel claim could be maintained against appellate counsel in the absence of a legitimate claim against trial counsel.
Under Rule 1113 of the Pennsylvania Rules of Appellate Procedure, Caswell had 30 days in which to file a petition for allowance of appeal to the state Supreme Court, which he failed to do.*fn5 Indeed, Caswell took no further action on his appeal for more than a year when, on July 28, 1989, he filed a "Petition for Permission to File Petition for Review nunc pro tunc " in the Pennsylvania Supreme Court. In that petition Caswell raised the same claims that he had raised before the Court of Common Pleas and the Superior Court except that, inexplicably, Caswell failed to include the Improper Juror Contact claim. The Supreme Court denied his petition on October 10, 1989, without explanation.
Thereafter, on December 13, 1989, Caswell filed his petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania, raising the following ineffective assistance of counsel claims: Irretrievable Breakdown; Rule 1100 Extension; Improper Juror Contact; Jury Sequestration; and a new claim, failure of trial counsel to seek individual voir dire.
By order of September 19, 1990, the district court sua sponte raised the question of exhaustion and directed Caswell to produce a copy of the pro se nunc pro tunc petition he had filed in the state Supreme Court. In its order of October 29, 1990, the court compared Caswell's federal habeas petition with that nunc pro tunc petition, noted that there was not complete exhaustion in that Caswell failed to raise before the state Supreme Court the claims on Improper Juror Contact and Individual Voir Dire, and directed Caswell to show cause for the default and prejudice resulting therefrom. Finally, in its order of December 20, 1990, the district court concluded that Caswell failed to exhaust the Improper Juror Contact claim because it was not included in the nunc pro tunc petition, that it would be futile under the Pennsylvania Post Conviction Relief Act to return to the state on that ground, and that Caswell failed to satisfy the cause and prejudice inquiry to excuse this procedural default because he failed to demonstrate good cause therefor. Accordingly, the court refused to address the merits of that claim.
The court determined that the Individual Voir Dire claim was separate from the Jury Sequestration claim and had not been exhausted. The court stated that the remaining claims had been exhausted, referring specifically to the Irretrievable Breakdown and Rule 1100 Extension claims.*fn6 The court rejected the Irretrievable Breakdown claim on the basis of the Magistrate Judge's findings that trial counsel had represented Caswell diligently. The court concluded that the Rule 1100 Extension claim constituted a matter of state procedural law, not "cognizable" in a federal habeas proceeding. Accordingly, it denied the petition for habeas relief.
Initially in his appeal to this court, Caswell raised all the issues he urged in the district court. However, on August 6, 1991, we granted Caswell's motion to withdraw the Individual Voir Dire claim. We will therefore limit our consideration to the remaining claims.