On Appeal from the United States District Court for the Western District of Pennsylvania. D.C. Civ. No. 89-00395.
Before: Sloviter, Chief Judge, Mansmann and Greenberg, Circuit Judges.
One of the most troublesome issues that faces a federal court sitting on a state prisoner's petition for habeas corpus is the appropriate remedy to fashion when the state proceedings have been characterized by excessive and indefensible delay. This is the second time we have before us an appeal in this habeas corpus action brought pursuant to 28 U.S.C. § 2254 (1988) by appellant Steven Heiser, a state prisoner, who complains of the over thirteen year delay he has experienced in waiting for the Pennsylvania state courts to rule on his motion to withdraw a guilty plea. In his original habeas petition Heiser claimed (1) that he should have been able to withdraw his plea on the ground that it was coerced, and (2) that, regardless of what the decision should have been on the merits of his motion to withdraw his plea, his due process rights have been violated by the sheer length of the delay by the state courts in hearing his motion.*fn1 The district court denied the petition, and Heiser appeals.
FACTS AND PROCEDURAL HISTORY
In early 1979, Heiser shot and killed William Lear, an antique dealer he was attempting to rob. He was charged with first, second and third degree murder, voluntary manslaughter, robbery and related charges. He pled not guilty and the trial began in September, 1979. The Commonwealth was prosecuting for the death penalty.
After two days of trial before state court Judge Thomas A. Harper during which five Commonwealth witnesses testified, Heiser, pursuant to a plea bargain with the Commonwealth, changed his plea to guilty to second degree murder (felony-murder), robbery, conspiracy, and carrying a firearm without a license. In his written confession, Heiser admitted that he and his cousin Robert Swartworth intended to rob Lear, that he was carrying a gun, and that when Swartworth and the dealer struggled, Heiser shot and killed the dealer.*fn2 Heiser agreed to testify against his co-defendant Swartworth as part of the agreement.
On December 17, 1979, while testifying in Swartworth's trial before Judge Harper, Heiser gave a different version of the facts than that set forth in his confession. Heiser continued to admit he shot Lear but stated that he and Swartworth did not go there with the intent to rob. Instead, he testified, he tried to sell Lear a second gun, see note 2 supra, but Lear noticed that the name on Heiser's driver's license was different from that Heiser used the day before. Lear accused Heiser of selling stolen articles and grabbed him across the counter. After Swartworth hit Lear with a nightstick, Lear pulled a gun and Heiser picked up the gun he brought from the counter and shot and killed Lear. On redirect examination by the prosecutor, Heiser stated that he wished to withdraw his guilty plea. App. at 93.
On January 24, 1980, Heiser was sentenced to life imprisonment on the murder charge plus a consecutive term of five to ten years on other charges. In February 1980, Heiser filed a motion to withdraw his guilty plea, alleging that the plea was not knowing, voluntary and intelligent. The motion contained three specific grounds as the basis for withdrawal of the plea: (1) Heiser's attorneys had coerced him into accepting the plea; (2) there was no factual basis for acceptance of the plea; and (3) he had not been informed properly of the possible sentences he could receive. App. at 11-12. The motion did not assert either self-defense or innocence as a reason for withdrawal, notwithstanding Heiser's testimony at Swartworth's trial. Judge Harper assured Heiser that the withdrawal motion would be evaluated by the more lenient pre-sentencing standard, even though the motion had been made after sentencing, because Heiser had expressed his desire to withdraw his plea before sentencing, during Swartworth's trial.*fn3
To this day, no state court has ruled upon Heiser's motion to withdraw his guilty plea. Judge Harper apparently wanted to see some missing transcripts before ruling. He died in 1982. No other Judge was assigned to the case until 1986 when Judge Alan S. Penkower was assigned. Judge Penkower also wanted to see the missing transcripts. The Commonwealth concedes that these transcripts are probably irretrievable. No party can advise us with confidence what is contained on these transcripts although it is reasonable to speculate that they contained the transcript of Heiser's sentencing and, assuming the accuracy of
Heiser's claim of an unsuccessful plea colloquy, that transcript as well.*fn4
In 1986, Heiser filed a motion under the Pennsylvania Post-Conviction Hearing Act (PCHA) alleging ineffective assistance of counsel.*fn5 No court has ruled on the PCHA petition either.
Heiser filed this habeas petition in February 1989. The district court originally denied Heiser's petition because it concluded that the plea colloquy demonstrated that Heiser's plea was not coerced. This court reversed, holding that the district court erred in ruling that the plea was voluntary solely on the basis of the colloquy. See Heiser v. Ryan, 951 F.2d 559, 562 (3d Cir. 1991) (Heiser I). We ruled that if Heiser's allegations that his attorneys had threatened to withdraw unless Heiser pled guilty were true, then the plea was coerced and he should have been permitted to withdraw it. See id. We also commented that Heiser might have had another fair and just reason to withdraw his plea and a due process claim. See id. at 563-64.
On remand, the district court again denied Heiser's petition. See Heiser v. Ryan, 813 F. Supp. 388 (W.D. Pa. 1993).
The court held an evidentiary hearing and found that Heiser's attorneys had not threatened to withdraw unless he pled guilty. See id. at 401. Heiser does not challenge that fact-based ruling on this appeal. The court also found that there was no due process claim nor any other reason to grant Heiser's habeas corpus petition. See id. at 403-04. Heiser appeals from the order denying his habeas petition.
Because Heiser levies the serious charge that the district court did not follow the mandate of this court on remand, we begin our analysis with a recapitulation of this court's opinion in Heiser I. As we stated there, Heiser filed a habeas petition "contending that [the then eleven and one-half year delay for a Pennsylvania state court to hear his motion to withdraw his guilty plea and four year delay in hearing his PCHA petition] violated his due process rights and that his guilty plea was neither knowing nor voluntary." 951 F.2d at 560.
The claimed involuntariness, one of the two grounds asserted for habeas, was based on Heiser's argument that his trial counsel threatened to withdraw from the case unless Heiser pleaded guilty. We stated that if that was so, "Heiser's plea is involuntary." Id. at 562. We held that although the district court had reviewed the guilty plea colloquy on the murder charge, this was not enough because there had been no state evidentiary hearing on Heiser's allegation that his guilty plea was coerced. Therefore, we remanded for an evidentiary hearing to determine whether the plea was coerced by attorney threats. As noted above, on remand the district court made a factual finding that the attorneys did not threaten Heiser, and that therefore Heiser's plea was voluntary. That issue, which occupied almost all of our opinion in Heiser I, has not been raised on this appeal.
Instead, this appeal focuses on other language of our Heiser I opinion. The second of Heiser's two claims in his habeas petition was that the "post-verdict delay violated his due process rights." 951 F.2d at 560. Thus, after we finished our Discussion of the alleged coercion and concluded that a remand was needed on that ground, we discussed the "extraordinary delay" suffered by Heiser because of the state's failure to act on his post-verdict motions, and remarked that in light of the case law dealing with delay in disposing of a criminal defendant's claim, a delay in post-verdict process, including an attack on a plea, may violate the due process clause. Heiser I, 951 F.2d at 563. We reviewed the four factors articulated in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), to be weighed and balanced for determining whether there has been a constitutional speedy trial violation because of delay, i.e., (1) length of the delay; (2) reason for the delay; (3) whether the defendant has been asserting his or her rights; and (4) prejudice to the defendant resulting from the delay, and noted that this court has used those same factors for evaluating delays in the appellate process. See Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir. 1987) (Burkett I); see also Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir. 1980), cert. denied, 450 U.S. 931, 67 L. Ed. 2d 365, 101 S. Ct. 1392 (1981).
Applying the Barker factors to Heiser, we concluded that the first three such factors were strongly in Heiser's favor because Heiser has suffered "extraordinary delay"; "the reasons given by the Pennsylvania courts are simply no excuse"; and the Commonwealth conceded that "Heiser has asserted his rights almost continuously since 1980." Heiser I, 951 F.2d at 562. Despite our obvious discomfort with the behavior of the state courts in this matter, we did not grant the writ because nothing on the record evidenced the fourth factor of prejudice. We remanded "because the district court had not made a decision counseled by facts from an evidentiary hearing" on whether Heiser had been prejudiced by the delay. Id. at 563-64.
On remand, the district court parsed our opinion and analyzed it in conjunction with our prior opinion in Burkett I, which dealt with a state court's delay in sentencing a defendant. The district court noted that in Burkett I we had stated that "the Barker prejudice factor does not run fully concurrently" in sentencing and appellate review as in speedy trial cases, 826 F.2d at 1222. The district court concluded that its "central focus in deciding whether Heiser's due process rights were violated should be whether the delays in addressing his motion to withdraw the guilty plea impaired his chances for success on the motion." 813 F. Supp. at 396.
Following its hearing, the court found that there had been no impairment to Heiser's ability to prove his claim that his guilty plea was coerced by the alleged threat of his attorneys, Richard H. Martin and Alan Jacobson, to withdraw if he did not plead. The district court found credible Martin's testimony that he would never make such statements. The court stated:
The Commonwealth has shown that the delay has not affected the participants' memories of the critical events. Although the passage of time has resulted in some diminution of memories, Heiser's ability to prove that his guilty plea was coerced was not prejudiced by the delay. Attorney Martin's testimony is unequivocal: he did not and would never make the type of threat alleged. The court does ...