Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-5447.
Higginbotham and Mansmann, Circuit Judges, and Dumbauld, District Judge.*fn*
Richard Bond, a state prisoner, appeals the dismissal of a federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254 b(1) (1982). The district court, adopting the report and recommendation of the U.S. Magistrate, concluded that since Bond failed to meet the exhaustion of state remedies requirement of Duckworth v. Serrano, 454 U.S. 1, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1982); 28 U.S.C. § 2254(b), (c), he was not eligible for federal relief.
We conclude that Bond's petition for allocatur to the Pennsylvania Supreme Court, albeit untimely and denied without comment, constituted compliance with the exhaustion requirement. We therefore find that the district court erred on this issue. We also conclude that the Pennsylvania Supreme Court's denial of Bond's allocatur petition was on procedural grounds which triggers an analysis of whether the procedural default effected a waiver of Bond's claim pursuant to Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Because Bond alleges that the "cause" for the procedural default was ineffectiveness of counsel, we dismiss the petition, consistent with our recent decision in Neely v. Zimmerman, 858 F.2d 144 (1988), without prejudice for Bond to pursue this issue in the state courts under the Pennsylvania Post-Conviction Hearing Act if he so desires.
On October 29, 1984, Richard Bond appeared before the Court of Common Pleas of Philadelphia County for a violation of probation hearing. The hearing was conducted over a three day period, at the conclusion of which his probation was revoked and a six to twenty year state sentence was imposed. The reason for the length of the hearing resulted from Bond's allegations that he had not previously received the required Gagnon I hearing.*fn1 The Common Pleas Court, however, found as a fact that such a hearing was scheduled, that Bond received written notice of the hearing, that Bond was brought to the holding cell in the courthouse in anticipation of the hearing, that the sheriff went to bring Bond to the courtroom and called for Bond and that Bond failed to respond to his name. The court thereby concluded that Bond had voluntarily waived his presence. Because of Bond's voluntary waiver, the court decided that the Gagnon I detainer hearing held in absentia satisfied the requirements of Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973).
Bond, through counsel, appealed the judgment of sentence to the Superior Court of Pennsylvania claiming as error the denial of the Gagnon I hearing and the trial court's alleged failure to state adequately on the record the reasons for the sentence imposed. The Pennsylvania Superior Court concluded that because Bond did not complain about the lack of the Gagnon I hearing either when the probation detainer was placed against him or in his application to remove the probation detainer that he was not entitled to release from custody or a new probation violation hearing. The court also found that the trial court had adequately stated on the record the reasons for the sentence imposed. A per curiam order affirming the judgment of sentence was filed on July 24, 1986.
Six months later, on January 21, 1987, Bond inquired of the Prothonotary of the Supreme Court of Pennsylvania whether a petition for allocatur had been filed on his behalf. Bond was informed that no such appeal had been filed. In March of that year, Bond's court-appointed counsel sent Bond the following letter:
This is in response to your letter dated March 2, 1987 wherein you protested my rejection of your collect phone calls as well as my refusal to file a petition for review in your behalf.
Firstly, I know of no rule which requires that I accept any collect calls in a matter where I am a court appointed counsel. Secondly, I enclose for your review a copy of Rule 1114 of the Pennsylvania Rules of Appellate Procedure. I suggest that you take particular note of the three notes appearing below the Rule and you will then understand why a petition for allowance of appeal was not filed by this office.
Lastly, with respect to your statement about my competency, please feel free to bring any claims under the Post Conviction Hearing Act.
Bond then filed, on June 30, 1987, a pro se self-styled petition for allowance of appeal nunc pro tunc. Other than a statement in the recital of facts that his court-appointed counsel abandoned him after the Pennsylvania Superior Court's affirmance of sentence, Bond did not present any reason for the petition's untimeliness. Bond then argued the identical issues upon which the Pennsylvania Superior Court appeal was based and was subsequently denied. On ...