Opinion
CIVIL ACTION NO. 05-CV-0034.
May 11, 2007
ORDER
AND NOW, this 10th day of May 2007, upon a careful review of Petitioner's pro se 28 U.S.C. § 2254 Petition (Doc. No. 1), his pro se Amended § 2254 Petition and Supplemental Memorandum of Law (Doc. No. 9, 10), Respondents' Response (Doc. No. 11), Magistrate Judge Thomas Rueter's Report and Recommendation (Doc. No. 12), Petitioner's Motion for Extension of Time (Doc. No. 13), Petitioner's Motion for Correction of Record (Doc. No. 15), and Petitioner's Objections to Judge Rueter's R R (Doc. No. 21), it is hereby ORDERED as follows:
1. Petitioner's Motion for Correction of Record (Doc. No. 15) is GRANTED. This Court's August 23, 2005 Order is VACATED.
2. Petitioner's Motion for Extension of Time (Doc. No. 13) is DENIED as moot.
3. The Report and Recommendation (Doc. No. 12) is APPROVED and ADOPTED.
4. The Petition for habeas corpus is DENIED.
5. A certificate of appealability is not granted.
MEMORANDUM
Presently before the Court are Petitioner Gary Spann's pro se 28 U.S.C. § 2254 Petition (Doc. No. 1), his pro se Amended § 2254 Petition and Supplemental Memorandum of Law (Doc. Nos. 9, 10), Respondents' Response (Doc. No. 11), Magistrate Judge Thomas Rueter's Report and Recommendation ("R R") (Doc. No. 12), Petitioner's Motion for Extension of Time (Doc. No. 13), Petitioner's Motion for Correction of Record (Doc. No. 15), and Petitioner's Objections to Judge Rueter's R R (Doc. No. 21).I. PROCEDURAL ISSUES
On January 5, 2005, Petitioner filed a pro se § 2254 petition for a writ of habeas corpus arguing ineffective assistance of trial counsel on a host of grounds. Still proceeding pro se, with leave of court, he subsequently amended his habeas petition on June 1, 2005 to include two claims of trial court error and another claim of ineffective assistance of counsel, alleging that all prior counsel were serially ineffective for failing to raise the trial court errors in any prior proceedings. The state responded in opposition on June 30, 2005. On July 22, 2005, Magistrate Judge Thomas Rueter issued a R R that the Petition be denied.
On August 4, 2005, Petitioner sought for an extension of time in which to file his objections to Judge Rueter's R R. However, this Court inadvertently approved and adopted the R R on August 23, 2005 without ruling on Petitioner's outstanding motion for a filing extension, and thus denied the habeas petition before Mr. Spann had the opportunity to object to the R R. On September 14, 2005, Petitioner brought this error to the Court's attention and requested a "correction of record" such that he be allowed to file his objections. See Petition for Correction of Record (Doc. No. 15), ¶ 7. Two days later, on September 16, Petitioner filed a notice of appeal to the Third Circuit.
The Third Circuit construed Petitioner's request for a "correction of record" as a Rule 60(b) motion. See December 9, 2005 Third Circuit Order (Doc. No. 19). As such, on December 9, 2005, the Court of Appeals issued an Order that it would hold Petitioner's application for a certificate of appealability "in abeyance pending [this Court's] disposition of [Petitioner's] motion filed on September 14, 2005." Id. Thereafter on December 29, 2005, while the appeal was still pending, this Court vacated its August 23, 2005 Order adopting Judge Rueter's R R and allowed Petitioner an additional month in which to file his objections. On February 28, 2006, after receiving Petitioner's objections, and upon an independent review of all the pleadings and records in the case, this Court again adopted and approved Judge Rueter's R R and denied Petitioner's application for habeas relief. Mr. Spann again appealed. On September 26, 2006, the Third Circuit dismissed both of Mr. Spann's appeals and remanded the case back to this Court. See September 26, 2006 Third Circuit Orders, C.A. No. 06-2124, C.A. No. 05-4296 (Doc. Nos. 27, 28).
While both Third Circuit Orders were dated September 25, 2006 and docket entries indicate that they were entered on September 26, 2006, for reasons unknown, unfortunately, this Court did not receive or otherwise learn of these developments until February 2, 2007, when the file was finally sent to this Court from the Clerk's Office. However, the notes of testimony for Petitioner's state court proceedings were not included in the returned file. This Court finally obtained a substitute copy of the trial transcripts on April 30, 2007.
The filing of a notice of appeal from a final judgment generally divests the district court of jurisdiction over aspects of the case involved in the appeal. See Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985). However, notwithstanding an appeal, the district court maintains the power to act to correct clerical mistakes or with regard to matters "in aid of the appeal." See, e.g., Leonhard v. United States, 633 F.2d 599, 609-10 (2d Cir. 1980); see also Venen, 758 F.2d at 120 n. 2 (while appeal is pending, district court may still inter alia, entertain applications for attorney's fees and modify or grant injunctions). District courts have jurisdiction to rule on timely Rule 59(e) motions after a notice of appeal is filed; in such a case the notice of appeal "springs" into effect after the court disposes of the Rule 59(e) motion. Fed.R.App.P. 4(a)(4)(B)(i);Venen, 758 F.2d at 122. With regard to Rule 60(b) motions, however, while a notice of appeal does not divest a district court of jurisdiction to entertain the motion, the district court nevertheless only has jurisdiction to deny, but not to grant the motion. See, e.g., United States v. Contents of Accounts, 971 F.2d 974, 988 (3d Cir. 1992); Venen, 758 F.2d at 123. If the district court desires to grant the Rule 60(b) motion, it should certify its intention to the appellate court, at which point the appellant may move in the court of appeals for a remand of the case. Main Line Fed. Savings Loan Ass'n v. Tri-Kell, 721 F.2d 904, 906 (3d Cir. 1983). In any case, the district court must either deny the Rule 60(b) motion or certify its intention to grant it before the appellate court may properly proceed to a review of the merits of the appeal. Contents of Accounts, 971 F.2d at 988.
Based on the foregoing discussion, it is clear that this Court erred on December 29, 2005 when it essentially granted Petitioner's Rule 60(b) motion by vacating its August 23, 2005 Order. The Court did not have jurisdiction to do so at that time. Therefore, this Court's subsequent February 28, 2006 Order adopting Judge Rueter's R R is of no legal effect. Now, with the Third Circuit's remand of the case, the procedural posture of the case is restored to that as it existed on September 15, 2005, following Petitioner's filing of his Rule 60(b) motion but prior to the filing of his first notice of appeal on September 16, 2005. Proceeding from this point, the Court finds that Petitioner is entitled to Rule 60(b) relief from the August 23, 2005 Judgment because as he correctly pointed out, he was not given an opportunity to file objections prior to this Court's first denial of his habeas petition. Furthermore, Mr. Spann is entitled to an independent review of his habeas petition, enlightened now by his objections.
Although Petitioner filed his objections pursuant to this Court's December 29, 2005 Order which was subsequently vacated by the Third Circuit, see September 26, 2006 Third Circuit Order, C.A. No. 06-2124 (Doc. No. 27), the validity of the Petitioner's filings remain unaffected.
Regrettably, this Court's inadvertent errors in the handling of Petitioner's case while his appeal was pending in the Third Circuit have likely burdened the pro se prisoner by unnecessarily prolonging his already protracted litigation. As such, the Court finds it appropriate to conclude its recitation of the procedural history here with a mea culpa.
II. REVIEW OF THE MERITS OF THE HABEAS PETITION
For the most part, Judge Rueter's analysis of Petitioner's claims is both legally correct and supported by the factual record. As such, the Court will approve of and adopt the R R with only the following additional discussion.
With regard to Petitioner's unexhausted claim of trial court error in denying his challenges for cause of a number of jurors, the record is clear that every one of the jurors Petitioner argues were biased were sufficiently rehabilitated by the trial court's voir dire. See N.T., 4/14/97, at 10-50. Therefore, this claim would be unavailing to Petitioner even if it had not been procedurally defaulted, nor could it serve the basis of an ineffective assistance of counsel claim. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (no Sixth Amendment deprivation based on attorney's failure to raise meritless argument); 28 U.S.C. § 2254(i) (ineffectiveness of counsel during state collateral post-conviction proceedings "shall not be a ground for relief" in a § 2254 action).
In his objections, Petitioner argues that Judge Rueter failed to address the claims set forth in his original § 2254 Petition. Pet.'s Obj. at 4. Petitioner did not include the claims he raised in the original Petition in his Amended Petition. An amended pleading ordinarily supercedes the original pleading, rendering the original of no legal effect. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001); In re Crysen/Montenay Energy Co., 266 F.3d 160, 162 (2d Cir. 2000); Charles A. Wright, Arthur R. Miller Mary Kay Kane, 6 Federal Practice and Procedure § 1476, at 556-57 (1990). However, in light of this Court's duty to liberally construe pro se pleadings, the Court finds Petitioner's Amended Petition (Doc. Nos. 9, 10) may properly be viewed as intending to augment, rather than to displace his original Petition. See, e.g., Bieros v. Nicola, 860 F. Supp. 226, 229 n. 2 (E.D. Pa. 1994) (reading original and amended complaints together; pro se amended complaint intended to clarify rather than to supercede claims raised in first complaint). Therefore, the Court agrees with Petitioner that the claims he raised in his original Petition should have been considered.
This is especially likely given that Mr. Spann titled the brief he submitted along with his Amended Petition as a " Supplemental Memorandum of Law." (Emphasis added.)
However, even upon consideration of the claims contained in the original Petition, the § 2254 Petition must still be denied because the claims are without merit. In his original Petition, Petitioner argues that his trial counsel and his appellate counsel were constitutionally ineffective for their failure to raise a number of issues at trial and on direct appeal. Pet's Brief at 7-8. Specifically, Petitioner contends that trial counsel was constitutionally deficient for failing to (1) request a Kloiber charge, or (2) a jury instruction on Emily Harris's crimen falsi conviction, (3) object to references to the petitioner's police photo and photo number, (4) introduce medical records establishing that Randolph Paige was intoxicated at the time of the incident, (5) interview people regarding the bad reputations of Emily Harris and Randolph Paige, (6) allow Petitioner the opportunity to present an alibi defense, (7) request a jury instruction on the alibi, or on (8) Emily Harris's parole status. Id. Petitioner argues that appellate counsel was constitutionally deficient for not raising most of these claims for ineffective assistance of trial counsel on direct appeal and for not appealing the trial court's ruling precluding him from presenting testimony about the outstanding arrest warrant for Emily Harris. Id.
The statutory provisions governing federal review of state court habeas decisions are found in 28 U.S.C. § 2254(d). InWilliams v. Taylor, 529 U.S. 362 (2000), the Supreme Court determined that 28 U.S.C. § 2254(d)(1) established two distinct paths for the invalidation of a state conviction on federal habeas review. First, federal habeas relief is warranted if a state conviction is "contrary to . . . clearly established Federal law." 28 U.S.C. § 2254(d)(1). This path applies when a state court's actions are "diametrically different" or "mutually opposed" to clearly established law. Williams, 529 U.S. at 406. Second, federal habeas relief is appropriate if the state conviction "involves an unreasonable application of . . . clearly established Federal law." 28 U.S.C. § 2254(d)(1). This path encompasses instances where the state court applies the proper Supreme Court precedent to specific facts in an objectively unreasonable way or where the court unreasonably extends (or refuses to extend) a clearly established rule. Williams, 529 U.S. at 409.
Alternatively, under 28 U.S.C. § 2254(d)(2), habeas relief may not be granted by federal courts based on claims previously resolved in state proceedings unless the state adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Factual determinations made by state courts are presumed to be correct and Petitioner bears the burden of rebutting the presumption by clear and convincing evidence.Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000).
Petitioner's Kloiber and crimen falsi claims were raised and denied in the first PCRA proceeding. On appeal, the Pennsylvania Superior Court affirmed the denial of the PCRA motion, reasoning that the Kloiber charge was not required under the facts of the case and that Petitioner was not prejudiced by counsel's failure to request a jury instruction on the crimen falsi convictions because the jury was aware of Harris's perjury and her crimen falsi conviction. Commonwealth v. Spann, No. 2049 EDA 1999, slip op. at 3-6 (Pa.Super.Ct. Aug. 3, 2000). The remaining claims were raised and denied in the second PCRA proceeding. Commonwealth v. Spann, No. 0030 PCRA (C.P. Phila. Aug. 9, 2002). Although the PCRA court concluded that all of Mr. Spann's collateral claims were waived because none of them were previously raised, it nevertheless engaged in a review of the merits of the claims and found all of them to be meritless, thus precluding any ineffective assistance of counsel claims that might otherwise potentially excuse the default. Id. On appeal, the Pennsylvania Superior Court affirmed the denial of the second PCRA motion, adopting the PCRA court's analysis on the merits of Petitioner's claims. Commonwealth v. Spann, No. 2850 EDA 2002, slip op. at 8 (Pa.Super.Ct. Aug. 26, 2003).
On the second day of trial, Harris testified that she lied under oath on the previous day and then admitted to a robbery conviction she had previously denied. N.T., 4/16/97, at 12-13. At the end of trial, Judge Jackson instructed the jury that if they found that a witness lied during one part of the testimony, they should "consider whether the inaccuracy casts doubt upon the rest of his or her testimony." N.T., 4/17/97, at 36. Furthermore, the jury was further instructed that if they decided that a witness "deliberately testified falsely about a material point," they may, "for that reason alone, choose to disbelieve the rest of his or her testimony." N.T., 4/17/97, at 34. The judge did not specifically refer to Harris's crimen falsi conviction nor did he discuss the potential impact of such convictions in general on a witness's credibility, rather, only Mr. Spann's prior conviction and its potential impact on Mr. Spann's credibility was specifically discussed by the trial court during the jury charge.See N.T., 4/17/97, at 33.
On the merits, the PCRA court held that Petitioner was not prejudiced by the reference to the police photo number, by trial counsel's failure to present alibi evidence or reputation evidence, or by the lack of an alibi instruction. Commonwealth v. Spann, No. 0030 PCRA (C.P. Phila. Aug. 9, 2002). Furthermore, since the medical records at issue did not indicate that Mr. Paige was intoxicated and the evidence regarding the allegedly bad reputations of Emily Harris and Randolph Paige was opinion evidence inadmissible under Pennsylvania law, the PCRA court concluded counsel could not be deemed ineffective for failing to introduce this evidence. Id. The PCRA court also held that there was no merit to Petitioner's claim that the jury should have been instructed that Harris's testimony may have been biased because of her parole status. Id. Finally, the PCRA court found that contrary to Petitioner's claim, evidence regarding Harris's outstanding arrest warrant for her parole violation was presented to the jury. Id.
On this last point, however, this Court finds that Petitioner has rebutted the PCRA court's factual determination — that evidence regarding Emily Harris's outstanding warrant was presented to the jury — by clear and convincing evidence. While the trial court allowed defense counsel to question Detective Watkins as to whether Watkins had knowledge of Harris's outstanding warrant, when Watkins answered "no," defense counsel was not permitted to extrinsically prove up the existence of the warrant by calling Harris's parole officer to the stand. N.T., 4/17/97, at 143-44.
Additionally, in support of its conclusion that evidence of Harris's outstanding warrant was presented to the jury, the PCRA court quoted extensively from defense counsel's closing argument, wherein counsel discussed the warrant. However, as these remarks were made in closing, they clearly do not constitute evidence and the jury was of course instructed as such by the trial judge. See N.T., 4/17/97, at 38.
Ultimately, however, this factual discrepancy notwithstanding, this Court cannot say that the PCRA court's final decision that Petitioner failed to demonstrate prejudice so as to excuse his procedural default was unreasonable in light of the entire state court record. See Lambert v. Blackwell, 387 F.3d 210, 235-36 (3d Cir. 2004) ("in the final analysis [] even if a state court's individual factual determinations are overturned, what factual findings remain to support the state court's decision must still be weighed under the overarching standard of section 2254(d)(2));see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("decision adjudicated on the merits in a state court and based on a factual determination will not be overturned unless objectively unreasonable in light of the evidence presented in the state-court proceeding"); 28 U.S.C. § 2254(d)(2). Initially, the PCRA court was correct that this claim of error had been waived because it was not raised post-verdict or on direct appeal. It is true that the PCRA court based its conclusion that Petitioner could not prevail on hisStrickland claim so as to excuse his waiver on the erroneous finding that the evidence at issue was introduced when in reality it was not. While the PCRA court's particular reason for denying Petitioner's Strickland claim — that counsel could not be deemed ineffective for failing to raise a meritless claim — was premised on a faulty factual finding, in light of the "overarching standard" of review set forth in 28 U.S.C. § 2254(d)(2), this Court cannot say that the PCRA court's final determination was objectively unreasonable. See Lambert, 387 F.3d at 236 n. 19. A state court decision is not "unreasonable" merely because the reviewing federal court would have reached a contrary conclusion had it encountered the issue in the first instance; rather, this Court must be convinced that no reasonable jurist would have reached the same decision as the state court based on the record. See, e.g., Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). This is without doubt a daunting standard.
The applicable and clearly established law governing Sixth Amendment claims of ineffective assistance of counsel is the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the first prong, a habeas petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness considering all the circumstances. Strickland v. Washington, 466 U.S. 668, 687-89 (1984); Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). In order to satisfy the second prong, petitioner must also demonstrate that he was prejudiced by counsel's substandard performance.Strickland, 466 U.S. at 687. One is prejudiced if there is a reasonable probability that but for counsel's objectively unreasonable performance, the outcome of the proceeding would have been different. Id. at 694; Jacobs, 395 F.3d at 105.
In this case, the jury was amply aware of that Emily Harris had lied under oath numerous times during the trial, but they appeared to have credited her version of events implicating Petitioner in Paige's assault regardless. Furthermore, even if Harris's testimony was completely disregarded, there was other competent, albeit admittedly not overwhelming, evidence of Petitioner's guilt such that it cannot be said that there is a reasonable probability that the outcome would have been different but for appellate counsel's error in not raising the issue. See Strickler v. Greene, 527 U.S. 263, 289-90 (1999) (prejudice requires more than merely showing that defendant "would more likely than not have received a different verdict"; must show claimed error deprived defendant of a fundamentally fair trial);Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (reasonable probability is "a probability sufficient to undermine confidence in the outcome"). Therefore, upon a full examination of the record governed by the circumscribed standard of review available to federal courts under 28 U.S.C. § 2254, this Court is forced to conclude that Petitioner is not entitled to habeas relief.
As to Petitioner's other claims, the Court is satisfied that the opinions of the PCRA and Superior courts have fully addressed those claims and that those decisions (1) were not contrary to clearly established federal law; (2) did not involve unreasonable applications of any such law; nor (3) were they unreasonable in light of the totality of the state court record. As a result, the instant § 2254 Petition must be denied. An appropriate Order follows.