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Panel rejects inmate’s claim of appeal delay

A panel of judges from the 3rd Circuit Court of Appeals in Philadelphia has rejected a request from a Clearfield man to address what he considers undue delay in hearing his appeal before the U.S. District Court in Johnstown.

The defendant, Luther L. Ware Jr., 70, is serving a prison term of 11 to 30 years at the State Correctional Institution at Houtzdale.

Ware was convicted in 2015 on two counts of possession with intent to deliver cocaine, delivery and related offenses of participating in a corrupt organization, dealing in the proceeds of unlawful activity and criminal use of a communication facility.

Clearfield County Judge Fredric J. Ammerman sentenced Ware on Aug. 11, 2015, and Ware, who maintains his innocence, has since challenged his conviction before the Pennsylvania Superior Court.

In July 2019, he filed a petition for a hearing on his charges in the federal District Court in Johnstown.

The case was initially assigned to Judge Kim R. Gibson, then transferred to U.S. District Judge Stephanie L. Haines.

Federal magistrate Judge Keith A. Pesto was assigned the initial review of Ware’s federal appeal.

Ware believed review of his case was not moving quickly enough, and in December, he filed a request with the 3rd U.S. Circuit Court of Appeals asking that it order the district judge to set a hearing date and rule on his federal appeal “in prompt fashion.”

He argued that he will suffer “irreparable harm each day that he remains imprisoned in violation of the United States Constitution.”

On Wednesday, 3rd Circuit judges Theodore A. McKee, Joseph A. Greenaway Jr. Stephanos Bibas denied Ware’s request.

In a short opinion, the panel stated that intervention by the federal appeals court may be warranted where “undue delay is tantamount to a failure to exercise jurisdiction.”

After reviewing the record of the case, the panel concluded that there was initially a delay in moving Ware’s appeal through the system, but it concluded “the case recently has been progressing in the District Court.

The appeals court judges explained that an order by the 3rd Circuit for a hearing represented a “drastic remedy” and noted such action is “disfavored and seldom used.”

District Court records also show that Ware’s federal habeas corpus petition (his appeal) has received attention recently.

On Feb. 10, Pesto issued a report and recommendation that Ware’s petition be denied, but he suggested that Ware be permitted to seek 3rd Circuit review of a decision by the Pennsylvania Superior Court, which dismissed his appeals without addressing the merits of his arguments.

Instead, the Superior Court quashed Ware’s appeal due to a docketing error.

Ware and the Pennsylvania Attorney General have until Feb. 24 to challenge Pesto’s recommendation, at which point it will go to Judge Haines for a decision.

In his federal appeal, Ware argues that his rights to a fair trial were violated because:

* He was not appointed counsel during initial, critical stages of his case.

* The prosecution withheld exculpatory evidence.

* Prosecutorial misconduct occurred by withholding evidence.

* His trial attorney was “ineffective.”

In late January, Pennsylvania Deputy Attorney General Gregory J. Simatic filed the government’s answer to Ware’s complaints and stated his appeal should be denied.

Ware, originally from New York, according to news reports at the time, had Clearfield-area people traveling to New York where they obtained crack cocaine and returned it to Clearfield County for sale.

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