Opinion
Civil Action No. 04-2870.
September 20, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. When he filed the instant habeas petition, Mr. McGriff was a pretrial detainee, incarcerated at the Curran-Fromhold Correctional Facility in Philadelphia, PA. He was charged with various crimes including murder, narcotics and weapons offenses and criminal conspiracy. For the reasons which follow it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed without an evidentiary hearing.
In preparing this Report and Recommendation I have reviewed the following documents: Mr. McGriff' habeas petition (with attached exhibits) and the Commonwealth's August 10, 2004 letter.
The facts underlying the charges against Petitioner, and the state court proceedings, were set forth by Judge Benjamin Lerner of the Court of Common Pleas of Philadelphia County as follows:
"This case involves the arrest and prosecution of numerous defendants accused of participating in an alleged drug trafficking organization, which primarily operated in the Mantua section of Philadelphia in the early and mid 1990s. The defendants were arrested at different times between 1995 and 1998, and charged with various crimes including murder, narcotics and weapons offenses and criminal conspiracy. The Commonwealth also charged the defendants with violating the Pennsylvania Corrupt Organizations Act (`PCOA')[footnote omitted] and conspiracy to violate PCOA. Due to the complexity of the case and the number of defendants, the Commonwealth requested numerous continuances in each defendant's case in order to have the cases ultimately joined in a single prosecution.
From July 28 to August 1, 1997, a protracted preliminary hearing for defendants James Drayton, Sherman Fletcher, George Taylor, Lamont Williams, David Williams and Raymond Nesbitt was litigated before the Honorable Robert S. Blasi in the Philadelphia Municipal Court. After taking the matter under advisement, Judge Blasi, on August 14, 1997, ordered that the defendants be held for court on the murder and conspiracy charges and dismissed the corrupt organization charges for lack of evidence. The defendants were thereafter arraigned on the remaining charges, and their cases were listed for pre-trial conferences. While these defendants were awaiting trial, however, the Commonwealth re-arrested them on the corrupt organization charges. A re-arrest preliminary hearing was litigated before Judge Lineberger in early 1998, and the defendants were held for court on these charges too.
In the meantime, defendants Dewitt Drayton, Anwar Sands and Rudolph McGriff were arrested. Their preliminary hearing, also protracted, took place from May 26, to June 1, 1998. At the conclusion of the hearing, the Honorable Harry Schwartz held the defendants for court on all charges. The defendants were then arraigned, and their cases listed for pre-trial conferences.
All defendants subsequently filed motions to quash the corrupt organization charges, alleging that the Commonwealth had not established prima facie their involvement in the infiltration of a legitimate business. The defendants claimed that the charges were entirely based upon their alleged participation in a wholly illegitimate business enterprise, i.e., a drug trafficking operation, and that in Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996), the Pennsylvania Supreme Court had held that PCOA required the infiltration of a legitimate business `through a pattern of racketeering activity' in order to trigger its provisions. As in the instant cases, the PCOA violations alleged in Besch involved only wholly illegitimate drug trafficking enterprise. Our Supreme Court reversed Besch's PCOA conviction, holding that such an enterprise was not covered by the statute.
The Commonwealth's response to this argument was that the Pennsylvania legislature had amended the PCOA, effective June 19, 1996, to cover both legitimate and illegitimate businesses, and that in Commonwealth v. Shaffer, 696 A.2d 179 (Pa.Super. 1997), a Superior Court panel had held that this amendment related back to activity conducted before the effective date of the amendment because the legislature was merely declaring what it had actually intended when it adopted the original statute. Argument in Shaffer was pending when the motions to quash in the instant cases were argued before the Honorable Carolyn E. Temin on June 18, July 22 and September 10, 1998.
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On October 22, 1998, Judge Temin granted the defendants' motion to quash all PCOA related charges. In reaching her decision, Judge Temin stated that she was bound by the Supreme Court's decision in Besch, rather than the Superior Court's decision in Commonwealth v. Shaffer.
Rather than proceed to trial on the remaining charges, the Commonwealth appealed Judge Temin's Order to the Superior Court. On July 21, 1999, while the appeal was pending, but before the Commonwealth had filed its brief [emphasis supplied by the Superior Court], the Supreme Court of Pennsylvania reversed the Superior Court's decision in Shaffer, holding that, while prosecution under the amended PCOA could be brought for infiltrating wholly illegitimate enterprises, the amendment did not apply retroactively and could not be used to nullify the Besch court's prior interpretation of the pre-amendment statute. Commonwealth v. Shaffer, 557 Pa. 453, 734 A.2d 840 (1999). This decision effectively rejected the sole theory upon which the Commonwealth relied in defending the corrupt organization charges against the motions to quash. . . .
Nevertheless, rather than withdrawing its now groundless appeal and proceeding promptly to trial on the remaining charges (including murder), the Commonwealth attempted to pursue its appeal by abandoning its theory of the case and asserting factual and legal positions which it had explicitly disavowed before Judge Temin, i.e., that the defendants engaged in illegal acts which occurred after the PCOA had been amended and that defendants had employed legitimate businesses in furtherance of their criminal activities. (See Commonwealth's appellate brief, pp. 5-11, 17-19). In its Superior Court brief, the Commonwealth denied that it had taken the positions and made the concessions which it clearly had taken before Judge Temin. The Commonwealth accused defense counsel of misstating the record and Judge Temin of misunderstanding the Commonwealth's positions at the motion to quash hearing.
The Superior Court rejected these newly manufactured arguments and, on January 31, 2000, affirmed the trial court's ruling. In its opinion, the Superior Court quoted at length from the record made before Judge Temin and ruled that the Commonwealth had explicitly abandoned the arguments and positions it was now attempting to maintain. Moreover, as the Superior Court opinion clearly demonstrated, in abandoning these positions the Commonwealth conceded that it had not produced at the preliminary hearing sufficient evidence to successfully maintain PCOA charges under the statute as it existed prior to its 1996 amendment.
Ignoring this opinion, the Commonwealth continued to delay a trial on the remaining charges by filing a petition for allowance of appeal in the Pennsylvania Supreme Court. In so doing, the Commonwealth continued its attempt to deny that it had taken positions and made statements to the trial court which the record (and the Superior Court) demonstrated it had taken and made. On July 20, 2000, the Supreme Court put an end to this abuse of appellate process by denying the petition for allocatur. The total time that elapsed from the Supreme Court's ruling in Shaffer to its denial of the Commonwealth's petition for allocatur was 365 days, not including the time that it took for the trial record to be transferred back to the Court of Common Pleas. . . .
On September 27, 2000, the defendants' cases were listed for a status conference before the Honorable James Lineberger. Separate trials were scheduled for different groups of defendants, but due to the unavailability of the court and/or counsel, as well as for other reasons to be discussed below, the trials eventually were postponed to October, 2001. The defendants have remained in custody since their arrests several years earlier and are being held without bail [emphasis supplied by the Superior Court].
On April 19, 2001, defendant Sherman Fletcher filed a motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 600, alleging that the Commonwealth did not exercise due diligence in bringing his cases to trial in a timely fashion. The remaining defendants filed similar motions. The cases were subsequently assigned to this court [Judge Lerner] for disposition of the Rule 600 motions. On July 25, 2001, this court requested that counsel submit briefs on the issue. On September 12 and October 19, 2001, this court held hearings on these motions.
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On November 7, 2001, this court granted the defendants' motions to dismiss. This court found that, while the Commonwealth was responsible for most of the pre-appeal delays by failing to turn over full discovery in a timely fashion, it did so primarily because of the complexity of these cases and the difficulty in consolidating the cases for trial. Accordingly, the court found that the Commonwealth had, indeed, exercised due diligence with regard to most of the delay prior to the litigation of the motions to quash.
However, with regard to the delay from July 19, 1999 (the date of the Supreme Court's decision in Shaffer) to July 20, 2000 (when the Supreme Court denied allocatur in this matter), the Commonwealth pursued a patently meritless appeal through misrepresentations and lack of candor to the appellate courts in an exercise of bad faith. This is not due diligence."See Petition for Writ of Habeas Corpus [Docket Entry No. 1]: Exhibit "P-2" (May 1, 2003 Superior Court Opinion) at pp. 3-8 ( quoting Judge Lerner's February 8, 2002 Opinion).
The Commonwealth appealed the trial court's dismissal of all charges, arguing that the lower court had erred in finding that the Commonwealth failed to exercise due diligence in bringing the defendants to trial in a timely manner. Id. at p. 9.
On appeal, the Superior Court affirmed, concluding that there is no legally cognizable support for the Commonwealth's position, and that trial court did not commit an error of law. Id. at pp. 13-17.
The Commonwealth sought reargument/reconsideration of the May 1, 2003 decision. By Order dated July 10, 2003, the Superior Court denied the Commonwealth's request. See Petition for Writ of Habeas Corpus [Docket Entry No. 1]: Exhibit "P-3" (July 10, 2003 Superior Court Order).
The Commonwealth then petitioned for allocatur review in the Supreme Court of Pennsylvania. By Order dated July 13, 2004, the petitions for allowance of appeal were denied. See August 10, 2004 letter addressed to me from Respondents [Docket Entry No. 5]: attached July 13, 2004 Pa. Supreme Court Order.
The Respondents represent that Petitioner has been released from custody, and his whereabouts are unknown. Id.
Because Petitioner is no longer in custody, and the charges which are the subject of his habeas petition have been dismissed, I recommend that the instant habeas petition be denied.
RECOMMENDATION
Consistent with the above discussion, it is recommended that Petitioner's habeas petition, filed under 28 U.S.C. § 2254, be DENIED AND DISMISSED WITHOUT AN EVIDENTIARY HEARING. It is further recommended that a finding be made that there is no probable cause to issue a certificate of appealability.