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Wise v. Fulcomer

filed: February 24, 1992.

JOSEPH WISE, APPELLANT
v.
THOMAS A. FULCOMER, SUPERINTENDENT; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; RONALD D. CASTILLE, DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 90-00487)

Before: Stapleton, Scirica and Roth, Circuit Judges

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

Joseph Wise seeks habeas corpus relief under 28 U.S.C. § 2254. His habeas corpus petition raises various procedural and constitutional objections to his conviction for robbery and related offenses. The Commonwealth of Pennsylvania challenged Wise's petition on the ground that it constitutes an abuse of the writ. The district court dismissed the petition for failure to exhaust state remedies. Because we believe that the abuse of the writ inquiry should have been undertaken before exhaustion was addressed, we will vacate and remand for consideration whether Wise's habeas corpus petition is barred under McCleskey v. Zant, U.S. , 111 S. Ct. 1454 (1991).

I.

On June 11, 1979, Wise was arrested and charged with robbery, conspiracy, and possession of an instrument of crime in connection with the armed robbery of a Philadelphia Savings Fund Society Bank. He was convicted by a jury in the Philadelphia Court of Common Pleas of all three charges. On October 23, 1980, the court sentenced Wise to seven and one-half to fifteen years' imprisonment on the robbery conviction only.

Wise appealed to the Pennsylvania Superior Court. The Superior Court affirmed the trial court's judgment of sentence on April 30, 1982, and Wise filed a pro se petition for allowance of appeal (allocatur petition) with the Pennsylvania Supreme Court. This petition was denied on March 4, 1983.*fn1 Wise then turned to federal court and filed the first of six petitions for a writ of habeas corpus under 28 U.S.C. § 2254.

On December 7, 1983, the district court dismissed Wise's first habeas corpus petition for failure to exhaust state remedies. Shortly thereafter, Wise filed a second petition, which was dismissed for the same reason on January 9, 1984. Later that month, Wise filed a third habeas corpus petition, this time alleging only that his Miranda rights had been violated. This claim was deemed exhausted, and was denied on the merits by the district court on May 9, 1985.

On August 13, 1985, Wise returned to state court and filed a Post Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. § 9541 (1982) (superseded), petition and request for appointment of counsel with the Philadelphia Court of Common Pleas. Wise's court-appointed counsel filed an amended petition. Meanwhile, Wise filed two additional habeas corpus petitions in federal court, both of which were dismissed for failure to exhaust state remedies. On February 3, 1988, the Court of Common Pleas denied Wise's PCHA petition, including both the pro se and counselled claims.

Wise appealed to the Pennsylvania Superior Court. Both pro se and counselled briefs were filed. The Superior Court affirmed the trial court's order denying relief on May 30, 1989, and Wise filed an allocatur petition with the Pennsylvania Supreme Court. Wise's court-appointed counsel also filed a petition. Both petitions were denied on November 6, 1989, prompting Wise to return to federal court and file the instant habeas corpus petition on January 23, 1990.

Wise's latest habeas corpus petition alleges a full and fair hearing claim and the six constitutional claims raised in his allocatur petition to the Pennsylvania Supreme Court.*fn2 The Commonwealth challenged this petition on the ground that it constitutes an abuse of the writ in violation of Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts. 28 U.S.C. § 2254, Rule 9(b). The magistrate Judge issued a report and recommendation that Wise's habeas corpus petition be dismissed for failure to exhaust state remedies, which was approved and adopted by the district court on October 31, 1990. Wise v. Fulcomer, No. 90-0487 (E.D. Pa. 1990).*fn3 This appeal followed.

II.

We granted a certificate of probable cause to appeal and appointed counsel to represent Wise. On appeal Wise contends that the district court erred in dismissing his habeas corpus petition for failure to exhaust state remedies. The Commonwealth renews its contention that Wise's petition constitutes an abuse of the writ.*fn4 The question before us is whether the district court should have addressed the Commonwealth's abuse of the writ argument before reaching the exhaustion issue. We ...


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