Onzie Travis v. Robert Meyers

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1291
ONZIE TRAVIS,
Appellant
v.
ROBERT MEYERS;
THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 00-cv-00544)
District Judge: Honorable Jay C. Waldman
Argued February 25, 2002
Before: ROTH and FUENTES, Circuit Judges
GIBSON*, Circuit Judge
( Opinion filed: May 22, 2002)
* Honorable John R. Gibson, Senior Circuit Court Judge for the Eighth Circuit,
sitting by designation.
Mary Gibbons, Esquire (Argued)
600 Mule Road, #16
Holiday City Plaza III
Toms River, NJ 08757
Attorney for Appellant
Marilyn F. Murray (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
District Attorney’s Office
1421 Arch Street
Philadelphia, PA 19102
Attorney for Appellees
______________

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-OPINION-
______________
ROTH, Circuit Judge.
Defendant Onzie Travis appeals the order of the United States District Court for
the Eastern District of Pennsylvania rejecting his petition for a writ of habeas corpus. On
November 21, 1995, Travis was convicted of delivery of heroin in the Court of Common
Pleas of Philadelphia County. On August 27, 1996, his appeal from the judgment of
sentence was dismissed by the Superior Court of Pennsylvania, and the Supreme Court of
Pennsylvania denied allocatur in that action on April 28, 1997. Travis filed his first
petition for a writ of habeas corpus on June 9, 1997. It was summarily dismissed by the
District Court for failure to exhaust his state remedies. We affirmed that order on
January 29, 1998. On March 17, 1998, pursuant to the direction of the federal court,
Travis filed a pro se petition for collateral review pursuant to Pennsylvania’s Post
Conviction Relief Act. On April 13, 1999, the Commonwealth agreed that Travis’s
direct appeal rights should be reinstated, nunc pro tunc. The Pennsylvania Superior
Court affirmed Travis’s conviction on January 3, 2002. Travis filed this petition
for a writ of habeas corpus on January 31, 2000, basing his claim on intentional
inordinate delay in appeal and failure to furnish transcripts needed on appeal. The
Magistrate Judge issued a report and recommendation on Travis’s petition. In his report,
the Magistrate Judge concluded that although there had been some delay in the state
court proceedings, the delay was not inordinate and the federal court should allow the
case to proceed in the state system. Travis filed objections to the report. On April 5,
2000, the District Court denied the objections, adopted the report and recommendation of
the Magistrate Judge, and dismissed the petition for failure to exhaust state remedies. On
April 4, 2001, we granted Travis a certificate of appealability with respect to whether
exhaustion should be excused, based upon inordinate delay pursuant to 28 U.S.C. 2254
(b). We have jurisdiction over this appeal pursuant to 28 U.S.C. 1291 and 2253
(c)(1)(A).
On appeal, Travis first argues that the lack of exhaustion of his remedies in state
court may be excused for inordinate delay. As we stated in Story, a state prisoner
seeking federal habeas corpus relief must present each of his claims to the state’s highest
court. Story v. Kindt, 26 F.3d 402, 405 (3d Cir.) cert. denied 513 U.S. 1024
(1994)(citing Picard v. O’Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 513, 30 L.Ed.2d 438
(1971). Federal Courts may entertain the merits of a petition for habeas corpus where no
remedy exists at the state level or when the state process would frustrate the use of an
available remedy. Id. Inexcusable or inordinate delay may render the state remedy
effectively unavailable. Id. While there was some delay in the state court proceedings,
the District Court was within its discretion in finding that the delay was not inordinate.
A remedy in the state courts was available and being pursued, and a decision was
pending in the Pennsylvania Superior Court. Indeed, the Superior Court affirmed
Travis’s conviction a little more than a month prior to oral argument in this appeal.
We have previously held that where exhaustion of state remedies has been
excused, the federal court should stay its hand if, before it has embarked on proceedings
of substance, there is reliable evidence that the state action has been reactivated. See
Walker v. Vaughn, 53 F.3d 609, 615 (3d. Cir 1995). At the time that Travis’s case was
reviewed by the Magistrate Judge, briefs had been submitted to the Superior Court and a
decision had been pending for just under a year. There was sufficient evidence for the
District Court to find that the Superior Court action was proceeding and that a decision
would be rendered. Pursuant to Walker, therefore, the District Court properly allowed
the case to proceed in the state system.
Travis’s second contention on appeal is that the alleged inordinate delay in state
proceedings gives rise to an independent violation of his due process rights. Prior to
appellate review in a habeas corpus proceeding, Travis had to obtain a certificate of
appealability which specified the issues for which he had made a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253 (c)(2) & (3). Travis’s certificate of
appealability was granted solely with respect to whether exhaustion should be excused,
based upon inordinate delay in accordance with Story. The certificate of appealability
did not include the issue of an independent violation of Travis’s due process rights. In
addition, the Pennsylvania Supreme Court has granted Travis’s petition for allocatur.

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Travis will have the opportunity to address his due process claim before that court. For
that reason, we believe that it is not appropriate for us to grant a certificate of
appealability on this issue. Travis’s claim of an independent violation of his due process
rights is not, therefore, properly before us.
We will, therefore, affirm the order of the District Court denying the petition for a
writ of habeas corpus.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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