Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Nos. 85-6177, 85-6178, 86-6813.
Gibbons, Chief Judge, Mansmann, Circuit Judge, and Gerry, District Judge.*fn*
James Clark, a state prisoner presently incarcerated at Graterford State Prison, filed three separate petitions seeking federal habeas corpus relief. Two of the petitions, concerning 1974 convictions for which Clark has completed serving his sentences, fail to meet the threshold jurisdictional requirements of 28 U.S.C. §§ 2241(c), 2254(a) (1948) that a petitioner be in custody for the allegedly defective conviction presented for scrutiny.*fn1 Our review is thus limited to the third petition filed by Clark regarding a 1979 conviction for which he remains incarcerated.*fn2
The essence of this petition is Clark's allegation that the judge who sentenced him for a 1979 conviction wrongly took into consideration the two previous convictions. These convictions were obtained in criminal court at a time when Clark was a juvenile, yet Clark was not afforded a hearing concerning his minor status and how his age should impact upon the criminal proceedings pending against him. Clark asserts, inter alia, that the failure to conduct such a hearing deprived him of his constitutional guarantee of due process.
Although the district court held that the alleged constitutional deficiencies were not present and that Clark's due process rights were protected during the 1974 judicial proceedings, we disagree. We conclude instead that the 1974 sentencing judge erred in not ascertaining Clark's juvenile status in light of the evidence of record. This failure denied Clark the important procedural safeguards provided to juveniles under Pennsylvania law. Thus, under the mandate of United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), the matter must be remanded for resentencing of the 1979 conviction with instruction that the 1974 convictions, obtained in violation of Clark's constitutional right to due process, not be considered in the imposition of the sentence.
The historical facts surrounding the crimes committed need not be outlined in detail; rather, the post-arrest events command our attention.
On separate dates in November 1973 criminal complaints were lodged against Clark for two incidents of sexual assault. On the first offense, Clark entered a no contest plea to attempted rape and was sentenced to 3 to 23 months in prison. After a bench trial on the second offense, Clark was found guilty of felonious assault. A sentence of 11-1/2 to 23 months imprisonment was ordered. Clark took no direct appeal from these convictions. He completed serving both sentences in 1978.
In 1979 a jury found Clark guilty of rape, indecent assault, unlawful restraint, aggravated assault and possessing an instrument of crime. On the day that Clark's post-trial motions were scheduled for argument, he escaped. Under the dictates of the Pennsylvania fugitive forfeiture rule,*fn3 the pending post-trial motions were then dismissed. Upon recapture Clark was sentenced to serve 10 to 20 years for rape and to a consecutive 2 to 5 year sentence for felonious restraint. In imposing sentence, the judge took into consideration the two 1974 convictions whose sentences Clark had just finished serving. The Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Clark, 300 Pa. Super. 315, 446 A.2d 633 (1982). The Pennsylvania Supreme Court denied review.
Meanwhile, in October of 1980, Clark filed a petition under the then-applicable Pennsylvania Post-Conviction Hearing Act ("PCHA"), 42 Pa.Cons.Stat.Ann. § 9541 et seq. (Purdon 1982), challenging the jurisdiction of the trial court over his 1973 violations. The petition was later amended to allege ineffective assistance of counsel. Clark's argument against jurisdiction was that he was only 17 at the time the crimes were committed and that Pennsylvania law entitled him to a juvenile court hearing to determine whether he should have been treated as a juvenile offender or tried as an adult. See 42 Pa.Cons.Stat.Ann. § 6322 (Purdon 1978). The ineffectiveness claim was related. Clark averred that representation was inadequate because his trial counsel failed to ascertain Clark's true age and was derelict in not bringing Clark's juvenile status to the attention of the court; in sum, an allegation that counsel failed to question the trial court's jurisdiction. A post-conviction hearing was held, at which Clark declined to present testimony from his 1973 trial counsel and, instead, "stood" on the record. The PCHA court found as a fact that both the trial court and counsel were unaware of Clark's actual age. Since this awareness is a requirement before a juvenile certification hearing is required under the Pennsylvania statute, the post-conviction petition was denied. The Superior Court affirmed the denial of collateral relief. Commonwealth v. Clark, 344 Pa. Super. 620, 495 A.2d 610 (1985). Clark's request for allowance of appeal to the Pennsylvania Supreme Court was denied.
On October 28, 1985, seven years after he completed serving his sentences for the 1974 offenses, Clark filed two federal habeas petitions challenging those convictions. In 1986, he filed a third petition asserting that the 1980 sentence ordered for his 1979 conviction was unconstitutionally imposed as it was based upon infirmities in the two 1974 convictions. He also raised the argument that his counsel was ineffective in the 1979 case for failure to request reinstatement of his post-trial motions after his recapture and for not raising the illegality of the 1974 adult convictions. The three petitions were consolidated.
On August 24, 1987, a United States magistrate recommended that the petitions be provisionally granted and the matter remanded for the state court to hold a certification hearing on the two 1974 convictions. Then, if the court of common pleas determined that the waiver of juvenile court jurisdiction was improper, the magistrate advised that the 1974 convictions should be vacated and Clark resentenced without consideration of these illegally obtained convictions.
Both the government and Clark filed objections to the magistrate's report.*fn4
On May 31, 1989, the district court rejected the magistrate's recommendation. The two petitions concerning the 1974 convictions were denied on jurisdictional grounds. As to the third petition concerning the 1980 sentence, the district court first determined that the statutory exhaustion of state remedies requirement was satisfied with regard to the issue of the application of the Pennsylvania fugitive forfeiture rule. The district court did not address the exhaustion question posed concerning the due process claim.
Next, regarding waiver, the district court decided that the state court dismissal of the then-pending post-trial motions occasioned by Clark's flight from the jurisdiction, constituting a procedural default under the Pennsylvania fugitive forfeiture rule, did not preclude federal review of Clark's habeas claims.
Having overcome these procedural obstacles, the district court proceeded to the merits of the remaining petition. Despite its conclusion that under United States v. Tucker, 404 U.S. at 448, the 1974 convictions were reviewable, the district court decided that Clark's substantive allegations were meritless. Specifically, the district court held that the failure to hold a juvenile certification hearing in the 1974 cases did not violate Pennsylvania law nor did it deny Clark due process. As to the ineffectiveness claim, the district court found that trial counsel's failure to ascertain his client's actual age did not constitute constitutionally inadequate representation because Clark failed to show both prongs of the Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) test--incompetence of counsel and prejudice resulting from an allegedly deficient performance. Finally, the district court rejected the claims that counsel was ineffective at the sentencing of the 1979 case. The district court found probable cause to appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253 and exercise plenary review over the legal questions presented.
As is often the case in habeas petitions presented for federal review, this matter poses questions of jurisdiction, exhaustion and procedural default. Here these issues are not dispositive, nonetheless, are perplexing enough to warrant some discussion.
In light of the Supreme Court's recent decision in Maleng v. Cook, 490 U.S. 488, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989), Clark now concedes that he is no longer in custody as a result of the 1974 convictions and, accordingly, admits that the district court does not have jurisdiction to consider the merits of those petitions. The reviewability of those convictions nonetheless remains before us, as discussed infra, because of their collateral enhancement consequences on the 1980 sentence.
First, we address the exhaustion question summarily as it arises in the context of the fugitive forfeiture rule. The district court agreed with the magistrate that the impact of the application of the Pennsylvania fugitive forfeiture rule, occasioning a state procedural default, was not an issue subject to the exhaustion requirement. The district court reasoned that because Clark had not raised the issue of the applicability of the rule as an independent basis seeking relief but, rather, invoked it only as a response to the government's assertion that he committed a procedural default which bars habeas relief, he need not have exhausted this by direct review.
The government did not cross-appeal concerning the district court's determination and we are satisfied that the district court's conclusion in this regard was correct.
The government contended, however, at oral argument before us, that Clark's request for relief on due process grounds, occasioned by the failure to provide him with a certification hearing to determine his juvenile status, was not exhausted. According to the government, this claim was raised in the state courts only as a jurisdictional issue, i.e., ...