Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2000

Mason v Meyers
Precedential or Non-Precedential:

Docket 98-7078




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Recommended Citation
"Mason v Meyers" (2000). 2000 Decisions. Paper 59.
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Filed March 20, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7078

JERRY MASON
       Appellant

v.

ROBERT W. MEYERS;
ATTORNEY GENERAL OF PENNSYLVANIA

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 97-cv-01248)
District Judge: Honorable Sylvia H. Rambo, Chief Judge

Argued: Thursday, September 23, 1999

BEFORE: BECKER, Chief Judge, GARTH, Circuit Judge,
and POLLAK, District Judge*

(Opinion Filed: March 20, 2000)

       Robert L. Byer
       David R. Fine (Argued)
       Kirkpatrick & Lockhart LLP
       240 North Third Street
       Harrisburg, Pennsylvania 17101

Attorneys for Appellant



_________________________________________________________________
* The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.


       Peter Paul Olszewski, Jr.
       District Attorney
       Frank P. Barletta (Argued)
       Assistant District Attorney
       Luzerne County Courthouse
       200 North River Street
       Wilkes-Barre, PA 18711

       Attorneys for Appellees

OPINION OF THE COURT
GARTH, Circuit Judge:

The first of the issues raised in appellant Jerry Mason's
("Mason") appeal -- whether a state court's inordinate delay
of four years in processing a petition for collateral relief
under Pennsylvania's Post Conviction Relief Act, 42 Pa.
Cons. Stat. SS 9541 et seq. ("PCRA") constitutes a due
process violation cognizable in a federal habeas corpus
proceeding pursuant to 28 U.S.C. S 22541 - has already
been addressed and resolved by this court. See Hassine v.
Zimmerman, 

(3d Cir. 1998) (holding that a
delay in processing a collateral proceeding is not cognizable
in federal habeas corpus, even if the delay amounts to a
constitutional violation); Heiser v. Ryan, 

(3d
Cir. 1994).

The second issue raised in Mason's appeal is whether the
District Court should have permitted Mason to amend his
S 2254 petition to include a second claim because the two-
strike provision of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), 28 U.S.C. S 2244, effectively
precludes petitioners from filing a second or subsequent
habeas petition except in the most unusual of
circumstances. We hold that Mason is entitled to the same
_________________________________________________________________

1. 28 U.S.C. S 2254 provides, in relevant part, that the court: "shall
entertain an application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties
of the United States."

                               2


prophylactic warnings we recently mandated in United
States v. Miller, 

(3d Cir. 1999)-- that the
District Court must advise Mason, as a pro se petitioner, of
the AEDPA implications before ruling on Mason's petition.
Because the District Court did not have the benefit of our
recent instructions, we will vacate the District Court's
orders and remand so that the District Court may comply
with our Miller decision.2

I.

Mason was convicted of various crimes in 1988, in the
Court of Common Pleas of Luzerne County, Pennsylvania.3
In 1989, Mason was sentenced to a term of imprisonment
of between fourteen and twenty-eight years and restitution.
Mason appealed his conviction and sentence to the
Superior Court of Pennsylvania. On August 27, 1990, the
Superior Court affirmed his conviction and sentence but
vacated the restitution order.
On March 24, 1992, Mason filed a petition under the
PCRA alleging ineffective assistance of trial counsel. The
court appointed counsel to represent him, and an
evidentiary hearing was held on August 11, 1993. Not
hearing anything further from either the court or his
counsel for four years, on August 12, 1997, Masonfiled a
petition for a writ of habeas corpus with the United States
District Court for the Middle District of Pennsylvania
pursuant to 28 U.S.C. S 2254, alleging that a four year
delay in resolving his PCRA petition violated his right to
due process under the Fourteenth Amendment.

The District Court assigned the case to a magistrate
judge who filed a report and recommendation on October
22, 1997, holding that Mason was excused from having to
first exhaust state remedies.4See Hankins v. Fulcomer, 941
_________________________________________________________________

2. As we discuss in text infra, we will apply the Miller requirements to
S 2254 habeas petitions as well as to S 2255 habeas petitions.
3. Mason was convicted of kidnapping, rape, two counts of involuntary
deviate sexual intercourse, indecent assault, terroristic threats and
unlawful restraint.

4. 28 U.S.C. S 2254(b) provides in part that a writ of habeas corpus
should not be granted "unless it appears that the applicant has

                               

, 250 (3d Cir. 1991) (holding that inordinate delay
can excuse exhaustion requirement). The magistrate judge
then distinguished between inordinate delays in state court
proceedings on direct rather than on collateral appeal by
relying on decisions from the Seventh and Ninth Circuits.5
The magistrate judge determined that "delay by the PCRA
court in deciding the petitioner's PCRA petition[collateral
review] does not amount to a due process violation even if
the delay is inordinate. . . ." Appendix at Exhibit A.

Mason filed his objections to this report and
recommendation on November 3, 1997. The government
neither objected to the magistrate judge's recommendation
with respect to the exhaustion claim, nor responded to
Mason's objections. The District Court adopted the
magistrate judge's report and recommendation on
December 16, 1997, dismissed the federal habeas petition,
and declined to issue a certificate of appealability. In a
motion for reconsideration on January 2, 1998, Mason
requested leave to amend his habeas petition to include his
underlying claim of ineffective assistance of trial counsel.
The District Court denied the motion on January 13, 1998,
simply stating that "[t]his he cannot do." We granted
Mason's application for a certificate of appealability and
Mason timely filed a notice of appeal.6
_________________________________________________________________

exhausted the remedies available in the courts of the State." For
purposes of this appeal, however, it is important to note that S 2254(b)
provides an exception to the exhaustion requirement if: "there is an
absence of available State corrective process; [or] circumstances exist
that render such process ineffective to protect the rights of the
applicant." 28 U.S.C. S 2254(c) states that an "applicant shall not be
deemed to have exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the question
presented."

5. See Montgomery v. Meloy, 

, 1206 (7th Cir. 1996); Franzen
v. Brinkman, 

(9th Cir. 1989).

6. The District Court had subject matter jurisdiction pursuant to 28
U.S.C. SS 2254 and 1331; we exercise jurisdiction pursuant to 28 U.S.C.
S 1291.

                               4


II.

Mason claims that he was denied a federal due process
right with respect to the delay involved in processing his
petition for post-conviction relief. Even if such a delay
constitutes a due process violation, Mason's claim must
fail. This Court has rejected the proposition that in a case
with a factual setting such as Mason presents, a delay in a
collateral proceeding can be the basis of a petition for a writ
of habeas corpus. See Hassine v. Zimmerman, 

(3d Cir. 1998); Heiser v. Ryan, 

(3d Cir. 1994).7

III.

Although the subject of Mason's motion -- styled as a
Motion for Reconsideration -- was Mason's attempt to
amend his S 2254 petition to add another claim, the District
Court, without regard to the context, treated the motion as
one for reconsideration and stated without more,"[t]his he
cannot do." In light of the fact that United States v. Miller,

(3d Cir. 1999), was not decided until after the
District Court had rendered its decision denying Mason's
Motion for Reconsideration, and because our decision today
requires compliance with Miller in S 2254 as well as S 2255
petitions, we have no need to address the District Court's
basis or reason for denying Mason's Motion for
Reconsideration. We discuss the Miller requirements infra.

The AEDPA provides that a second or successive habeas
petition under S 2254 is to be dismissed unless certain very
specific and rare circumstances exist. See 28 U.S.C. S 2244.
None of those exceptions applies in Mason's case. As a
result of the AEDPA's two-strike rule, it is essential that
_________________________________________________________________

7. Mason also briefly suggests that the PCRA engendered in him a liberty
interest violated by the state's inordinate delay. He analogizes the PCRA
to Board of Pardons v. Allen, 

(1987), in which the Supreme
Court held that a state statute mandating the parole of an inmate after
the parole board's findings of specific facts engendered a liberty
interest

in the inmates. This argument, however, does not assist Mason in his
current claim as, even if the PCRA engenders a liberty interest -- an
issue not addressed herein -- the relief sought in Allen was pursuant to
42 U.S.C. S 1983 and not pursuant to a federal habeas proceeding. See

petitioners include in their first petition all potential
claims for which they might desire to seek review and relief.
Mason's August 12, 1997, pro se habeas petition included
only a claim of inordinate delay in processing his PCRA
petition, but failed to include his additional claim of
ineffective assistance of trial counsel. Because of the
AEDPA's two strike rule, when the District Court dismissed
Mason's habeas petition, Mason was consequently barred
from bringing a second habeas petition to address his claim
of ineffective assistance of counsel. It is understandable,
therefore, that Mason sought to amend his petition by
means of his Motion for Reconsideration, although he did
so improperly.

In Miller, we recounted how the AEDPA had"dramatically
altered the form and timing of habeas petitions in the
federal courts" and observed that petitioners"must marshal
in one S 2255 writ all the arguments they have to
collaterally attack their convictions." 

.8
We stressed that out of a sense of fairness, a district court
should not prevent a pro se petitioner from presenting all of
his claims in one full-fledged S 2255 attack upon his
conviction. Accordingly, we have now required that under
Miller, district courts provide certain prophylactic "notice"
measures before either re-characterizing a post conviction
motion as a S 2255 motion or ruling on a S 2255 motion
denominated as such when the petitioner is proceeding pro
se. See 

rule requires that the district court
advise the pro se petitioner that he can:

       (1) have his motion ruled upon as filed; (2) if his
       motion is not styled as a S 2255 motion have his
       motion recharacterized as a S 2255 motion and heard
       as such, but lose his ability to file successive petitions
       absent certification by the court of appeals; or (3)
       withdraw the motion, and file one all inclusiveS 2255
       petition within the one-year statutory period.
_________________________________________________________________

8. Miller's prophylactic rule extended the Second Circuit's holding in
Adams v. United States, 

(2d Cir. 1998), which required
that before a court could re-characterize a petitioner's motion as a
S 2255 motion (thereby subjecting it to the restrictions of the AEDPA),
the court must first apprise the petitioner of the AEDPA consequences of
such a re-characterization.

                               6

Although Miller involved a S 2255 petition, in footnote 7 of
that opinion we suggested that similar prophylactic steps
might also be warranted under S 2254 because the AEDPA
similarly restricts the filing of a second or successive S 2254
habeas petition. See 

n.7.9 Because there is no
meaningful way to distinguish between S 2254 and S 2255
with respect to the restrictions imposed by the AEDPA and
the fairness policy we have expressed in instituting this
supervisory rule, we will now apply Miller's instructions and
requirements to S 2254 habeas petitions made by pro se
petitioners -- whether styled as S 2254 petitions or
recharacterized as such. Had Mason been given the notice
that Miller requires, he would have been informed of the
need to add his claim of ineffective assistance of counsel to
his habeas petition asserting an "inordinate delay."

IV.

With Heiser and Hassine as precedential background, we
would normally affirm the District Court's dismissal of
Mason's habeas claim. However, if we were to follow that
course in this proceeding, we would negate the principle
established in Miller.

As we pointed out in section 

, the District Court
did not have the benefit of the Miller instruction when it
denied relief to Mason's motion for reconsideration-- a
motion designed to amend Mason's original S 2254 petition.
Had Mason been afforded the opportunity to add to his
original S 2254 petition a claim for ineffective assistance of
_________________________________________________________________

9. In fact, with respect to the AEDPA, "[i]n order to provide guidance to
the district courts, and hence facilitate the orderly administration of
justice in these cases, we have followed the practice, whenever we decide
an AEDPA issue that arises under S 2254 and the same holding would
analytically be required in a case arising underS 2255, or vice versa, of
so informing the district courts." Miller v. New Jersey State Dep't of
Corrections, 

, 619 n.1 (3d Cir. 1998) (citing Burns v. Morton,

, 112-13 (3d Cir. 1998); Santana v. United States, 

, 756 (3d Cir. 1996)). See also Swartz v. Meyers, No. 98-7282, 

, at *3 n.4 (3d Cir. Feb. 25, 2000); Kapral v. United States, 

, 574 n.6 (3d Cir. 1999).

                               7


counsel, the District Court would have had before it both a
collateral claim -- which it could not entertain-- and a
direct claim of ineffective assistance of counsel-- which it
would have been obliged to address. See, e.g. Heiser v.
Ryan, 

(3d Cir. 1994). To give effect to the Miller
doctrine, we must, therefore, permit Mason on appropriate
notice to select among the Miller options-- which we will
require the District Court to provide.10

In doing so, it will be necessary to vacate the District
Court's holding as to Mason's "delay" issue. We do so,
however, not to affect the holdings of either Heiser or
Hassine -- which are the law of this Circuit-- but rather
exclusively because Mason, as a pro se petitioner, was not
given the required Miller instructions. By vacating this
dismissal, we will be providing Mason with a clean slate so
that Mason may, if he so desires, bring one all-inclusive
S 2254 habeas petition alleging all of his claims. We note
that if Mason were to once again assert in his S 2254
petition a claim of inordinate delay in processing his PCRA
petition, the District Court will be obliged under Heiser and
Hassine to reject such a claim.

V.

In order to achieve the objective sought by our
instruction in United States v. Miller, we will accordingly
vacate the District Court's orders which dismissed Mason's
S 2254 petition and denied his motion for reconsideration,
and we will direct the district court to provide Mason with
the notice and the instructions found in Miller .

We can anticipate that the District Court, in following
this direction may have to consider the statute of
limitations constrictions found in the AEDPA. Therefore, we
call particular attention to Miller's holding, which we adopt
with respect to S 2254, that if in the future a district court
failed to provide the necessary warnings prescribed in
_________________________________________________________________

10. In allowing Mason to select among his Miller options, we have no
need to address the issue of retroactivity with respect to all S 2254
petitions. Rather, as this case decides Miller applicability to S 2254
petitions, it is appropriate for us to apply our Miller holding to Mason.

                               8


Miller, the statute of limitations should similarly be tolled to
allow the petitioner an opportunity to file all of his claims
in the correct manner. See 

.11

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

11. Miller allows the S 2255 petitioner 120 days to re-file his habeas
petition. See 

. In view of our instant decision,
S 2254 petitioners should receive the same 120 days in which to re-file
their petitions.

                               9