Kenneth Lee v. William Stickman

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
______________
No: 02-3497
______________
KENNETH LEE,
Appellant
v.
WILLIAM STICKMAN;
STEPHEN ZAPPALA, JR.;
MICHAEL FISHER
Appeal from the United States District
Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 02-cv-01013)
District Judge: Honorable Robert J.
Cindrich
______________________
Argued on December 18, 2003
Before: ROTH, MCKEE and
CUDAHY* , Circuit Judges
(Opinion filed: February 11, 2004)
__________________
*The Honorable Richard D.
Cudahy, Circuit Judge for the United
States Court of Appeals for the Seventh
Circuit, sitting by designation.
Stephen J. Binhak, Esquire (Argued)
3103 Philmont Avenue
Huntingdon Valley, PA 19006
Counsel for Appellant
Ronald M. Wabby, Jr., Esquire (Argued)
401 Allegheny County Courthouse
Pittsburgh, PA 15219
Counsel for Appellees
O P I N I O N
CUDAHY, Circuit Judge
This is an appeal by Kenneth Lee
from an order of the United States
District Court for the Western District of
Pennsylvania dismissing his petition for a
writ of habeas corpus on the ground that
he had failed to exhaust available state
court remedies. Lee contends that we
must excuse the exhaustion requirement
because of the eight-year delay in his
post-conviction collateral proceedings in
the Pennsylvania state courts. W e agree.
We therefore reverse the order of the
district court and remand the case for
consideration of Lee’s habeas petition on
the merits.
I.
If William Shakespeare were to
summarize Lee’s experience with the
Pennsylvania state courts, he might
describe it as “a tale told by an idiot, full
of sound and fury, signifying nothing.”

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William Shakespeare, Macbeth, act 5, sc.
5., lines 26-28. The epic begins on April
30, 1992, when a jury convicted Lee of
possession of cocaine, possession with
intent to deliver cocaine and resisting
arrest. On June 25, 1992, Lee was
sentenced by the Court of Common Pleas
of Allegheny County to 1.5 - 5 years
imprisonment followed by five years of
probation. After an unsuccessful direct
appeal, Lee filed a pro se petition under
the Pennsylvania Post Conviction Relief
Act (“PCRA”) on February 13, 1995. 42
Pa. Cons. Stat. Ann. § 9541 et seq. In his
PCRA petition, Lee raised five
arguments: (1) the trial judge abused his
discretion in denying a motion to
suppress; (2) the trial judge wrongfully
denied a motion to arrest judgment; (3)
one of the jurors was biased because of
his employment with the Allegheny
County Court of Common Pleas; (4) the
evidence did not support a conviction;
and (5) the trial judge wrongfully cross-
examined Lee in front of the jury. Most
of these arguments have never been
considered on the merits by any court.
On February 28, 1995, a PCRA
counsel was appointed for Lee. On May
11, 1995, after hearing nothing from the
court, Lee filed a Petition For Writ of
Habeas Corpus in the same court. This
petition was denied because the PCRA
petition was pending. On June 1, 1995,
PCRA counsel requested that he be
relieved as counsel since Lee wanted to
represent himself. This request was
granted. On June 6, 1995, the court
ordered Lee to provide notice of whether
he intended to pursue his PCRA petition
pro se. The order noted that if Lee failed
to provide notice within thirty days, the
petition would be dismissed.
For reasons unknown to this
Court, Lee did not respond to this order.
In January 1996, Lee was still awaiting a
decision on his PCRA petition, so he
filed a Motion for Relief / Disposition
Without Hearing. In this application,
Lee reiterated the jury bias claim, but did
not reassert the other claims he had made
in the PCRA petition. On February 25,
1996, the court dismissed Lee’s Motion
for Relief / Disposition Without Hearing,
explaining that Lee had waived the right
to challenge the juror by not raising the
issue earlier. On August 16, 1996,
eighteen months after Lee submitted the
PCRA petition, the court dismissed that
petition for the sole reason that Lee had
failed to indicate whether he would
proceed pro se. On August 25, 1996,
Lee appealed this dismissal.
On March 17, 1998, eighteen
months after this appeal, the Superior
Court of Pennsylvania vacated the
August 16, 1996 Order of the lower court
because the Court of Common Pleas had
failed to provide notice of intent to
dismiss the PCRA petition, notice of the
reasons for dismissal and an opportunity
for Lee to respond before dismissal. The
Superior Court also noted that Lee had
made clear his intent to proceed pro se
long before the Court of Common Pleas
dismissed his petition. App. Vol. II at
114 n.1.1
1 The appendix annexed to Petitioner’s
brief in this case will be designated as

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On August 14, 1998, five months
later, the Court of Common Pleas issued
a new opinion in response to the ruling
of the Superior Court. This new opinion,
however, mistakenly did not address the
PCRA petition, but instead addressed
only the Motion for Relief / Disposition
Without Hearing, which it had already
dismissed. Nonetheless, the court
concluded its opinion by ordering that
the PCRA petition be dismissed within
twenty days unless Lee could show cause
why the court should rule otherwise.
Within that deadline, Lee filed a
response in which he reiterated the five
claims in his original PCRA petition and
also added an ineffective assistance of
counsel claim. On September 23, 1998,
the trial court dismissed the PCRA
petition without further comment.
Lee filed a timely appeal on
October 17, 1998. The case was not
submitted for a panel review in the
Superior Court until almost three years
later, in September of 2001. According
to the Superior Court the delay occured
because “[i]nexplicably, the trial court
record was not . . . filed in this Court
until April 2001.” Id. at 201. On March
20, 2002, almost six months after the
case had been submitted for review, the
Superior Court issued its decision. The
Superior Court noted that “[t]he
procedural history in this case is
torturous” and called it “an ongoing
odyssey of litigation.” Id. at 200-01.
Nonetheless, instead of deciding the
PCRA petition on the merits or directing
the Court of Common Pleas to do so, the
Superior Court remanded the case to the
Court of Common Pleas to determine
whether Lee was still serving his
sentence.2
On June 25, 2002, Lee filed a
Third Amendment to the PCRA petition,
attempting to highlight the fact that no
court had addressed his claims. The
Commonwealth moved to dismiss this
application contending that Lee had
served his sentence in full. On July 19,
2002, the Commonwealth withdrew this
motion when it realized that Lee was still
serving his sentence. On February 25,
2003, almost a year after the remand, the
Court of Common Pleas reinstated its
September 23, 1998 Order. Lee appealed
this decision to the Superior Court,
which has not yet ruled on his appeal.
On June 5, 2002, Lee filed a
Petition for Writ of Habeas Corpus in the
United States District Court. In that
petition, Lee alleged ineffective
assistance of counsel at the trial and
appellate level, denial of due process,
denial of fair trial, denial of equal
protection and prosecutorial misconduct.
Lee also filed a brief explaining his
failure to exhaust state remedies. On
September 3, 2002, the U.S. District
Court dismissed the habeas petition for
failure to exhaust state remedies. At the
time of this appeal, Lee was serving
probation which was scheduled to end on
“App.”
2 On May 1, 2002, Lee petitioned the
Superior Court for additional relief, but
that petition was denied.

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October 10, 2003.
II.
Under ordinary circumstances, a
federal court may not entertain a petition
for a writ of habeas corpus unless the
petitioner has first presented each of his
claims to the state’s highest tribunal. See
28 U.S.C. §§ 2254 (b), (c); Rose v.
Lundy, 455 U.S. 509, 515-16 (1982).
Exhaustion, however, is not a
jurisdictional matter but a matter of
comity. See Story v. Kindt, 26 F.3d 402,
405 (3d Cir. 1994). Federal courts need
not defer to the state judicial process
when there is no appropriate remedy at
the state level or when the state process
would frustrate the use of an available
remedy. Id.; 28 U.S.C. § 2254(b)(1)(B).
We have held that “inexcusable or
inordinate delay by the state in
processing claims for relief may render
the state remedy effectively unavailable.”
Wojtczak v. Fulcomer, 800 F.2d 353, 354
(3d Cir. 1986). The existence of an
inordinate delay does not automatically
excuse the exhaustion requirement, but it
does shift the burden to the state to
demonstrate why exhaustion should still
be required. Story, 26 F.3d at 405
(noting that this burden is “difficult to
meet”).
In the past, we have excused the
exhaustion requirement for petitioners
who have undergone significantly shorter
delays than presented here. Wojtczak,
800 F.2d 353, 356 (33 month delay
between filing PCRA and habeas
petitions); Burkett v. Cunningham, 826
F.2d 1208, 1210-11 (3d Cir. 1987) (five
year delay in sentencing); United States
ex rel. Senk v. Brierley, 471 F.2d 657,
660 (3d Cir. 1973) (three and a half year
delay); United States ex rel. Geisler v.
Walters, 510 F.2d 887, 893 (3d Cir.
1975) (stating in dicta that three years
and four months to decide a motion for a
new trial was an inordinate delay
sufficient to obviate the exhaustion
requirement). The government attempts
to distinguish this precedent by noting
that these cases were inactive for years
(i.e., no hearings, decisions, etc.) while in
Lee’s case there has been a great deal of
movement. Gov’t. Br. at 28. The same,
however, can be said for a grand mal
seizure. Unfortunately, in both cases, the
movement is painful and aimless.
It took the lower court eighteen
months to dismiss Lee’s petition for the
sole procedural reason that Lee failed to
officially state whether he intended to
proceed pro se. It then took another
eighteen months for the Superior Court
to vacate that order and remand the
petition. When the lower court finally
decided the petition on the merits, it
decided the wrong petition. Due to what
appears to be an administrative error (or
a string of such errors), the record was
not available to the appellate court until
almost three years later. It was not until
another six months later that the
appellate court remanded the case.
However, the remand was solely to
determine whether Lee was still in
custody. It then took almost a year for
the lower court to reinstate its dismissal.
As far as we know the appellate court
still has not ruled on this dismissal. The
arguments made in Petitioner’s initial
PCRA petition have still not been

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considered by any court. This ping-pong
game the state court was playing with
Lee’s petition would almost be comical if
Lee had not been in custody this entire
time awaiting resolution.
In deciding whether a delay is
excessive, we do consider the degree of
progress made in state court. See, e.g.,
Cristin v. Brennan, 281 F.3d 404, 411
(3d Cir. 2002) (holding that a 27 month
delay was not excessive given that a
hearing was held and the petition was
ruled upon). In this case, however, we
do not believe that any real progress has
been made. Regardless, it is difficult to
envision any amount of progress
justifying an eight-year delay in reaching
the merits of a petition.
The government now has the
chutzpah to suggest that Lee should have
first presented this “inordinate delay”
claim to the state court. Gov’t. Br. at 24.
If only finite life-spans would permit.
Given that it has thus far taken eight
years for the state court to consider Lee’s
collateral attack, we can only imagine
how long it would take to decide whether
it is taking too long. Thankfully, there is
no requirement that a petitioner seeking
to excuse the exhaustion requirement
first articulate the grounds therefor in
state court. The case upon which the
government relies for that proposition,
Schandelmeier v. Cunningham, 819 F.2d
52, 54 (3d Cir. 1986), is inapposite.
Unlike the present case, the substantive
basis for Schandelmeier’s habeas claim
was, itself, the delay in state court. Id. at
54 (“His habeas petition . . . is based
entirely upon the delay in the state
court’s ruling on his motions, and the
concomitant delay in sentencing him.”).
Thus, Schandelmeier stands for the
unremarkable proposition that the
allegations underlying a habeas petition
must first be presented for consideration
in state court. Id. In the present case,
however, Lee’s petition is not based on
the state court delay but on other alleged
constitutional violations. Moreover,
Schandelmeier was unable to show that
“there was no opportunity for him to
obtain redress in the state court system”
because “[t]he only actions taken by
Schandelmeier to obtain state relief on
the grounds asserted in his federal
petition [were] the letters that he
allegedly wrote to the trial court.” Id. at
53-54. In contrast, Lee has done all that
can reasonably be expected to pursue his
claim in state court. “[I]t is the legal
issues that are to be exhausted, not the
petitioner.” Burkett, 826 F.2d at 1218
(quoting Walters, 510 F.2d at 893).
Therefore, we decline the government’s
invitation to return Lee’s petition to legal
purgatory.
To add insult to injury, the
government concludes that “appellant
will not be entitled to relief” because “as
of October 3, 2003 appellant will fail to
satisfy the ‘in custody’ requirement [of
§2254(a)], [as] his sentence will be
completed.” Gov’t. Br. at 30 n.10.
However, what matters for the “in
custody” requirement is whether Lee was
in custody at the time his habeas petition
was filed. See 28 U.S.C. § 2254; Spencer
v. Kemna, 523 U.S. 1, 7 (1998). It is
equally clear that being on probation
meets the “in custody” requirement for

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purposes of the habeas statute. See
Mabry v. Johnson, 467 U.S. 504, 507 n.3
(1984) (prisoner on parole remains “in
custody” for purposes of 28 U.S.C. §
2254); Barry v. Brower, 864 F.2d 294,
296 (3d Cir. 1988) (“We can see no
material difference between probation
and parole in applying the ‘in custody’
requirement of § 2254.”). Because it is
not disputed that Lee was on probation at
the time his federal habeas petition was
filed, it is clear that he was “in custody”
for purposes of the habeas statute.3
Nor is Lee’s appeal moot. See
United States v. Frumento, 552 F.2d 534
(3d Cir. 1977) (en banc). In Frumento,
we noted that “an appeal is not moot
even though the appellant has been
released from custody or has served his
sentence if he has taken all possible steps
to have the order of confinement
promptly reviewed prior to his release.”
Id. at 537, citing Sibron v. State of New
York, 392 U.S. 40, 53 (1968) (“[A] state
may not effectively deny a convict access
to its appellate courts until he has been
released and then argue that his case has
been mooted by his failure to do what it
alone prevented him from doing.”); cf.
Fay v. Noia, 372 U.S. 391, 424 (1963)
(“[C]onventional notions of finality in
criminal litigation cannot be permitted to
3 The Supreme Court has explained
that the federal habeas statute requires
that the petitioner be in custody “under
the conviction or sentence under attack at
the time his petition is filed.” Maleng v.
Cook, 490 U.S. 488, 490-91 (1989). The
fact that Lee is attacking his original
conviction and sentence but is “in
custody” as a result of a probation
violation is inconsequential. Under
Pennsylvania law, a violation of
probation is not considered a separate
offense but an element of the original
sentence. See Commonwealth v. Pierce,
497 Pa. 437, 441, 411 A.2d 1218, 1220
(1982) (“The imposition of total
confinement upon revocation of
appellant’s probation was not a second
punishment for his robbery conviction,
but was an integral element of the
original conditional sentence.”);
Commonwealth v. Colding, 482 Pa. 112,
393 A.2d 404 (1978) (holding that the
revocation of probation and the
imposition of a term of total confinement
was not violative of the double jeopardy
clause, since the defendant was given
one conditional sentence which merely
deferred sentencing the defendant to a
fixed term of total confinement until
such time as he violated the conditions of
his probation); 42 Pa. Cons. Stat. Ann. §
9771(b) (“Upon revocation the
sentencing alternatives available to the
court shall be the same as were available
at the time of initial sentencing, due
consideration being given to the time
spent serving the order of probation.”).
The same is true under federal law. See
United States v. Hidalgo-Macias, 300
F.3d 281, 285 (2d Cir. 2002) (compiling
cases); United States v. Thomas, 961
F.2d 1110, 1119 (3d Cir. 1992) (“For
parole and probation revocations, the
Guidelines specify that the original
sentence and the sentence imposed after
probation is revoked are added and
counted as if they were one sentence.”).

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defeat the manifest federal policy that
federal constitutional rights of personal
liberty shall not be denied without the
fullest opportunity for plenary federal
judicial review.”).4 In the present case,
we find that Lee took all possible steps to
have his claims promptly reviewed prior
to his release. While it is true that Lee
could have brought his federal habeas
petition earlier in the hope that we would
have excused the exhaustion
requirement, the success of such efforts
would be mere speculation. Moreover,
we cannot fault Lee for first attempting
to exhaust state remedies.
In summary, Lee has shown that,
at the time he filed his federal habeas
corpus petition, his PCRA petition had
been before the Pennsylvania state courts
for almost eight years with no resolution.
Under these circumstances, the burden
was on the government to demonstrate
why Lee should continue to wait for
Godot. The government has not met this
burden.5 We therefore conclude that Lee
should be required to wait no longer and
that the district court should entertain his
petition on its merits.6 See Wojtczak, 800
F.2d at 356. We reverse and remand for
that purpose.
4 In subsequent cases, we noted that
this exception to mootness only applies
where a “personal liberty interest is at
stake.” Matter of Kulp Foundry, Inc.,
691 F.2d 1125, 1129 (3d Cir. 1982)
(holding that the exception does not
apply to OSHA inspection cases). There
can be no question, however, that a
personal liberty interest is at stake in the
present case. See Matter of Establish
Inspection of Metal Bank of America,
Inc., 700 F.2d 910, 913 n.3 (3d Cir.
1983) (“[A] personal liberty interest such
as imprisonment must be at stake for the
Frumento exception to apply.”)
(emphasis added).
5 We note that if we were to affirm
the district court and thus require Lee to
exhaust his state remedies, he would
never be able to file a federal habeas
petition because he would not meet the
“in custody” requirement at the time of
the filing of his petition. See 28 U.S.C.
§2254(a). This is one reason we have
suggested that “when petitioners have
filed habeas actions in federal court
before they have fully exhausted their
state remedies . . . the federal action
should be stayed” rather than dismissed
as premature. Merritt v. Blaine, 326 F.3d
157, 170 n.10 (3d Cir. 2003) (compiling
cases).
6 In the event that the district court is
inclined to dismiss any of Lee’s claims
on procedural grounds, we strongly urge
that, if possible, it also analyze and rule
on the merits of those claims so that
Lee’s unfortunate experience in state
court is not repeated here.

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