Dominick Codispoti Y-1353, Appellant, v. James F. Howard, Superintendent, 589 F.2d 135 (3d Cir. 1978)

In December 1966 after a tumultuous jury trial, Dominick Codispoti and his two co-defendants, Richard Mayberry and Herbert Langnes, were found guilty of prison break and holding hostages in a penal institution. Before sentencing, Codispoti made a motion for a new trial on the grounds that his conviction was violative of both state law and the federal constitution.²  Although under Pennsylvania law a new trial motion should be disposed of Prior to sentencing,³  the trial court failed to rule on Codispoti's motion. The judge gave each of the defendants a lengthy prison sentence; Codispoti received a fifteen to thirty year sentence. In addition, the trial judge found the defendants guilty of several counts of criminal contempt as a result of their conduct during the trial. While the state court did not act on the new trial motion, there was considerable activity on the contempt citations, including two appeals to the Supreme Court of the United States. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971).⁴ 

We are not unaware of the conduct of Codispoti and his co-defendants which precipitated the contempt citations. The transcript of the trial demonstrates that throughout the state trial the petitioner and his co-defendants conducted themselves in an unruly and disruptive manner. Indeed, the record indicates that the defendants' behavior was reprehensible. During the trial the judge was called "crazy," "a punk," "Caesar," "a dirty tyrannical old dog" and a "dirty sonofabitch." He was charged with "a tyrannical display of corruption," running a Spanish Inquisition and engaging in a conspiracy with the prison authorities. Langnes, one of the co-defendants, on at least two occasions threatened the trial judge that he would "blow off (his) head." Mr. Justice Douglas described the behavior of one of Codispoti's co-defendants "as a shock to those raised in the Western tradition that considers a courtroom a hallowed place of quiet dignity." Mayberry v. Pennsylvania, 400 U.S. at 456, 91 S. Ct. at 500. A similar comment might be appropriate in describing Codispoti's conduct, though the record reveals that his conduct was not quite as bizarre as his co-defendant's.

Yet at the outset it must be emphasized that the precious rights of due process and the writ of habeas corpus are not reserved solely for those who are polite and decorous. Indeed, the true test comes when these rights are to be guaranteed to a defendant regardless of how recalcitrant or vulgar his conduct may be.

As we noted above, Codispoti's attempts to obtain a review of his conviction for prison break and holding hostages began with a Pro se motion for a new trial submitted to the trial court Prior to his sentencing On December 12, 1966. Although almost twelve years have passed, the motion has not yet been disposed of by the state trial court. The court records suggest that while there was some initial activity, the motion has been dormant since 1967.⁵  It is not denied by the respondent that the state court has not yet disposed of Codispoti's motion.

Our review of the court records provides no insight into the reason Codispoti's motion has never been acted on. United States Magistrate Robert Mitchell, whose report was adopted by the court below, suggested that there has been no ruling because Codispoti "apparently never pursued these matters and devoted his complete attention to his contempt convictions."⁶ 

Codispoti, on the other hand, asserted that he made several attempts to obtain a ruling on his motion. In this petition he alleged that he contacted the law schools of the City University of New York and Harvard University and the Pennsylvania Prison Research Council for assistance. He also alleged that he wrote to his trial counsel, the district attorney, and the trial judge on at least seven occasions between 1970 and 1973 in order to obtain a decision. Furthermore, Codispoti specifically averred:

Both State Court Officials and Prison Officials have for the past Eleven years conspired to obstruct my right to appeal from my conviction. The trial court has ignored every effort I made to get a decision on my Motion for a New Trial. They have ignored all my correspondence up until last month (March, 1977). The Prison Officials have destroyed and waylaid my petitions and legal letters. Judge Samuel Strauss had ordered a "FREEZE" on all my correspondence with the Trial Court and will not allow me to have any pertinent record that is needed for appeal.

In addition to his motion for a new trial, Codispoti made several other attempts to obtain review of his conviction. In June 1967 he filed a Pro se petition requesting a Post-Conviction Hearing pursuant to Pennsylvania's Post-Conviction Hearing Act statute (PCHA). Pa.Stat.Ann. tit. 19 §§ 1180-1 to 1180-14 (Purdon Supp.1978). This motion was denied on July 18, 1967 "for the reason that the issues raised in the petition are covered under a motion for new trial which is now pending." Commonwealth v. Codispoti, No. 4672 of 1965 (July 18, 1967).⁷ 

In October 1976, almost ten years after the original trial, he filed a pro se petition for a writ of habeas corpus in federal district court alleging that the delay in processing his appeal violated his constitutional rights. This petition was dismissed on the ground that he had not exhausted his state remedies. Codispoti v. Howard, No. 76-1255 (W.D. Pa. October 8, 1976).

In October 1976 Codispoti submitted a second petition in the state court for a post-conviction hearing alleging that he had been unlawfully denied his appeal.⁸ 

In March 1977 he filed a civil complaint in federal court alleging that certain state officials had conspired to obstruct his attempts to appeal his conviction. This complaint was dismissed as to all but one of his claims.⁹  Codispoti v. Strauss, No. 77-304 (W.D. Pa. March 18, 1977).

In April 1977 he filed pro se the petition for habeas corpus which is before us. In the petition he alleged that his right to appeal had been denied unlawfully and he requested that his federal claims for a new trial be considered by the district court.¹⁰  In June 1977 Judge Maurice Cohill dismissed the petition on the ground that Codispoti had failed to exhaust his state remedies.

In July 1977 a hearing on Codispoti's second PCHA petition was held. In August 1977 an order was entered reciting Codispoti's desire to withdraw his petition and dismissing the petition without prejudice.

Meanwhile, Codispoti appealed Judge Cohill's order to this court. In December 1977 Codispoti informed the court that he wished to represent himself and refused court-appointed counsel.

Under the federal habeas corpus statute federal courts have been granted the power to provide relief for state prisoners held in custody in violation of the federal constitution, treaties or laws.¹¹  These powers were broadly designed so that they might sweep aside procedural constraints, jurisdictional limitations and resistant courts and release a prisoner unjustly constrained. As Justice Holmes eloquently stated:

(H)abeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved, opens the inquiry whether they have been more than an empty shell.

Frank v. Mangum, 237 U.S. at 346, 35 S. Ct. at 595 (dissenting).¹² 

While this power is plenary, the statute mandates a general rule of abstention which requires a petitioner to exhaust his state court remedies before resorting to the federal system.¹³  This exhaustion requirement stems from considerations of comity and does not limit the jurisdictional power of the court to issue a writ. Fay v. Noia, 372 U.S. 391, 418, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

Instead it places a restraining hand on the federal courts and urges proper deference to the state system. Under the statute, a state judicial system has the first opportunity to correct its own errors, acting before the external authority of the federal court intervenes. Id. at 419-20, 83 S. Ct. 822. The Supreme Court has affirmed the importance of the abstention rule emphasizing that absent exceptional circumstances federal courts should stay their hands and permit the orderly functioning of the state appellate process. Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971).

Abstention, however, is not to be exercised in every instance. Indeed, the statute itself provides that when state remedies are ineffective in the protection of a prisoner's rights, a federal court may hear the petition.¹⁴  Justice Rutledge observed prior to the codification of the exhaustion doctrine in § 2254 that:

it would be nothing less than abdication of our constitutional duty and function to rebuff petitioners with this mechanical formula (of failure to exhaust state remedies) whenever it may become clear that the alleged state remedy is nothing but a procedural morass offering no substantial hope of relief.

Marino v. Ragen, 332 U.S. 561, 564, 68 S. Ct. 240, 242, 92 L. Ed. 170 (1947) (Rutledge, J., concurring).

We must take issue with the view of habeas corpus law held by District Court Judge Cohill and Magistrate Mitchell. The Magistrate's report, which was adopted by the trial court, states that:

"In the present case, although Codispoti filed post trial and post conviction motions immediately after his conviction, he apparently never pursued these matters and devoted his complete attention to his contempt convictions."

This "finding" is misleading and irrelevant. Codispoti is not in charge of scheduling the motions for disposition by the Pennsylvania trial courts those are judicial managerial responsibilities. Moreover, it certainly was not inappropriate for Codispoti to "devote . . . his complete attention to his contempt convictions." Codispoti had received a sentence of seven to fourteen years of solitary confinement for these crimes. This sentence was to be served consecutive to his already outstanding sentence.

The district court refused to consider Codispoti's petition reasoning that he had failed to exhaust his state remedies. Bluntly, the trial court's ruling "is too narrow a view of the habeas corpus power" of the federal courts. United States ex rel. Johnson v. Cavell, 468 F.2d 304, 309 (3d Cir. 1972). The petitioner has tried long enough to exhaust his remedies. We are not precluded from hearing his petition because of the exhaustion requirement for "(d) eference to an available state court remedy does not imply powerlessness to afford the petitioner a prompt hearing when by reason of delay the state process may prove to be ineffective to protect the rights of the prisoner." Id. at 309.

Petitioner Codispoti's application for habeas corpus relief outlines an exceptional history of delay and unresponsiveness on the part of the state court system. If his allegations are correct he has had no effective way to appeal his conviction. The trial court's delay in responding to his post-trial motions has stymied his appeal and barred judicial review. The normal process has been ineffective to provide review of his allegations that his trial was conducted unlawfully.

In our decision in United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975), we granted habeas corpus relief after a three year delay in disposing of a new trial motion. Similarly in United States ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir. 1973), we granted relief after a three and one-half year delay in disposing of a PCHA petition. Surely if a three year delay warrants federal court review, Codispoti's almost twelve year delay is a ground for review.

Moreover, consideration of Codispoti's petition would not conflict with the principles of comity underlying the exhaustion requirement. Exhaustion is "designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. at 250, 92 S. Ct. at 409, quoting Fay v. Noia, 372 U.S. at 438, 83 S. Ct. 822. The Pennsylvania courts have been given more than an ample "opportunity to pass upon" Codispoti's new trial motion. They could and should have ruled when he first submitted his new trial motion and they were reminded of its pendency by his first PCHA petition. Further, when the federal district court in 1976 abstained from deciding Codispoti's first habeas petition, the state courts should have ruled.

The respondent contends that Codispoti had an adequate remedy in his second PCHA petition and chose not to pursue it. It is argued that because he waived his right to an available state remedy he should be denied federal habeas relief notwithstanding the delay in his direct appeal. In support of this claim the respondent cites Fay v. Noia, supra, and Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). These cases do not justify dismissal of this petition.

The line of cases cited by the respondent deals only with the issue of the adequacy of an independent state law ground to bar federal habeas corpus review. In these cases the Court discussed the reviewability of federal claims which the state court declined to pass on because they were not presented in the manner prescribed by state procedural rules. Id. at 81-2, 97 S. Ct. 2497. The Court noted that if a procedural default barred state review, federal habeas review might also be barred. In the instant case Codispoti's withdrawal of his PCHA petition did not foreclose further state review. His claims may still be considered by the state court under his pending new trial motion. Therefore, his federal habeas corpus petition is not barred.

The respondent further asserts that the state courts are willing to review Codispoti's petition in a PCHA hearing and he argues that Codispoti should therefore be compelled to return to state courts. We do not agree.

We have held that in the normal course of events a state prisoner who has completed the remedy of direct appeal, may request a federal writ of habeas corpus without first requesting a PCHA hearing. United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971). We have reasoned that once the state has "been afforded full opportunity to adjudicate the matter," the exhaustion requirement has been met. United States ex rel. Fletcher v. Maroney, 413 F.2d 16, 18 (3d Cir. 1969). In this case Codispoti alleges that he has been unable to pursue a direct appeal due to the decade-long pendency of his post-trial motions. If the state has caused the delay, it would be anomalous to require him to pursue a post-trial motion which he would not normally have to consider, and which was once refused him. The state has "been afforded full opportunity" to review his conviction. We follow the guidance of the Wilwording court which stated:

Petitioners are not required to file "repetitious applications" in the state courts. Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S. Ct. 397, 403, 97 L. Ed. 469 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S. Ct. 194, 196-197, 19 L. Ed. 2d 41 (1967).

404 U.S. at 250, 92 S. Ct. at 409.

As we have noted above, the record before us shows no valid explanation as to why the state court has waited almost twelve years to dispose of a post-trial motion. Presumptively such a delay should impel us to consider the prisoner's petition unless it can be shown that he has waived his appeal or some extraordinary occurrence has taken place.

We will therefore remand this case to the district court for an evidentiary hearing to determine why the petitioner's new trial motion has not been disposed of. The burden of proof at this hearing shall rest with the respondent, James Howard. We recommend that the evidentiary hearing be conducted by the trial court and not by the magistrate.

It is further ordered that if the trial court concludes that the delay is inexcusable, it should then determine whether there were errors committed at Codispoti's trial which were of a constitutional dimension. If there were constitutional violations, the court should further determine whether a new trial should be held or whether due to the passage of time the charges must be dismissed.¹⁵  Even if the court concludes that there were no constitutional violations at the original state trial, the court is free to consider whether the sheer length of the delay in deciding the new trial motion is a violation of Codispoti's constitutional rights.

We will accordingly reverse the judgment of the district court and remand this case for further proceedings not inconsistent with this opinion.