Opposition Brief — Charles Russell Rhines, Petitioner v. Darin Young, Warden
Supreme Court briefMar 13, 2019
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No. 18-8029
In The
Supreme Court of the United States
OCTOBER TERM 2018
+
CHARLES RUSSELL RHINES,
Petitioner
Vv.
DARIN YOUNG, Warden, South Dakota State Penitentiary,
Respondent
+
On Petition For A Writ Of Certiorari
To The United States Court of Appeals For The 8* Circuit
+
RESPONDENT’S APPENDIX: VOLUME 1 of 2
+
JASON R. RAVNSBORG, South Dakota Attorney General
PAULS. SWEDLUND, Assistant Attorney General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
STATE OF SOUTH DAKOTA
1302 East Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: 605-773-3215
Facsimile: 605-773-4106
paul.swedlund@state.sd.us
Attorneys for Respondent Young
APPENDIX
Volume 1
Pertinent South Dakota Statutes
Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014)
Ballard Attorney Referral Article
Habeas Corpus Transcript Excerpt
Criminal Trial Transcript Excerpt
Rhines “Reply To Last Word” Filing
Rhines Pro Se Complaint
United States District Court’s Rule 59(e) Ruling
Tharpe v. Warden, CIV 10-483 (D.Ct.M.D.Ga. 2017)
Cersosimo Journal
Volume 2
Voir Dire Transcripts
McGriff
Blake
D. Anderson
Keeney
Cersosimo
Corrin
Walton
M. Anderson
Woodson
Dean
Brown
Shafer/Rohde
Appendix 001
Appendix 009
Appendix 066
Appendix 068
Appendix 074
Appendix 083
Appendix 091
Appendix 112
Appendix 131
Appendix 155
Appendix 236
Appendix 237
Appendix 262
Appendix 278
Appendix 303
Appendix 321
Appendix 338
Appendix 353
Appendix 374
Appendix 393
Appendix 409
Appendix 432
Appendix 458
CIVIL PROCEDURE
Section
15-6-80—-STENOGRAPHIC REPORT OR TRANSCRIPT AS EVIDENCE.
1§-6-80. Stenographic report or transcript as evidence.
XI. GENERAL PROVISIONS.
15-6-81—APPLICABILITY.
15-6-8i(a). Procedure preserved.
15-6-81(b). Omitted. :
15-6-81(c). Appeals to circuit courts. .
15-6-81(d). ° Chapter incorporated into statutes.
15-6-82--TURISDICTION AND VENUE.
45-6-82. Jurisdiction.and venue.
15-6-83—RULES BY COURTS OF RECORD.
15-6-83. Rules by courts of record, .
: 15-6-84—FORMS.
15-6-84. Forms.
15-6-85—TITLE.
15-6-85. Title. .
15-6-86—BFFECTIVE DATE.
15-6-86. Effective date. ,
APPENDIX A. SPECIAL, PROCEEDINGS.
APPENDIX B. CIRCUIT COURT RULES.
APPENDIX OF FORMS.
Cross References
Courts and judiciary, Supreme Court, rulemaking powers, see § 16-31 et seq.
Law Review and Journal Commentaries
Van Patten, Themes and Persuasion, 56 S.D,
L. Rev, 256 (2011).
1, SCOPE OF CHAPTER—ONE FORM OF ACTION
15-6-1—SCOPE OF CHAPTER
15-6-1. Scope of Chapter
This chapter governs the procedure in the circuit courts of the State of South
Dakota in all suits of a civil nature, with the exceptions stated in § 15-6-8). It
shall be construed to secure the just, speedy and inexpensive determination of
every action.
Source: SD RCP, Rule 1, as adopted b:
1966.
y Sup: Ct. Order March 29, 1966, effective July 1,
f 4g.
APPENDIX 001
RULES OF PROCEDURE IN CIRCUIT COURTS § 15-6-59(a)
Law Review and Journal Commentaries
Parsons, Appellate Practice in the South Dakota Supreme Court, 56 S.D, L. Rev, f t (2014).
15-6-59(a). Grounds for new trial
A new trial may be granted to all or any of the parties 5 and on all or part of
the issues for any of the following causes:
(t) Irregularity in the preceedings of the court, jury, or adverse patty or
any order of the court or abuse of discretion by which either party was:
prevented from having a fair trial;
(2) Misconduct of the jury; and whenever any one or more of thé jurors
have been induced to assent to any general or special verdict or to a
finding on any question submitted to them by the court, by a resort to
the determination, of charice, such misconduct may be proved by. the
affidavit of any one of the jurors;
(3) Accident or surprise which, ordinary prudence. could not, shave guarded
against;
(4) Newly discovered-evidence, material to’ tha party making the application, which he could not with reasonable diligence have discovered and
‘produced at the ‘trial;
(5) Excessive or inadequate damages. appearing to have been given tyider
_ "the influence of passion or prejudices: = .
(6) Insufficiency of the evidence to j
” . that it is against law;
(7) Error of law occurring at the tri:
‘of error, admission, rejection o ‘ y
; failure of' the court to. make a fi ing or iain a material
issue which had not been proposed or-requested, it must be based upon
an objection, offer. of préof ora mation to strike. a
Ona motior for a new trial in 4n action tried without a jury, the court may
open the judgment if éne has been enteréd, take additional testimony, amend
findings of fact arid conclusions of law or make new findings and conclusions,
and direct the entry of a new judgment.
When the motion be made for 4 cause “ riéntioned in subparagraphs (4); 2),
(3), or (4), it must be made upon affidavits attached to and made a part of thd
motion, uriless’as to a cause mentioned in subparagraph (1), the ipregularity or
abuse of discretion:is sufficiently disclosed by the record to support such
motion. When the’imotion is:made’ under subparagraph (6) it shall state’ the
particulars wherein the evidence j is claimed to be insufficient.
Source: SDC 1939 & Supp 1960,-§§ 33.1805, 33.1606; SD RCP, Rule 59 (a); as adopted
by Sup. Ct. Order March 29, 1966, ‘effective July 1, 1966; SL 1978, ch 178, §.568,
ss References.
* Appellate procedure, ~ -
t Actions available‘to Supreme Court on dectsion, see § 15-26A-12. ~
Judgments and orders from which appeal may be taken, see § {5-26A-3,
601
APPENDIX 002
RULES OF PROCEDURE IN CIRCUIT COURTS
include failure to memorialize part of a decision, Reaser v. Reaser, 688 N.W.2d 429, 2004
S:D. 116. Appeal And Error © 440
4, Filing of order
Trial court retained jurisdiction, following
former husband's filing of notice of appeal from
coyirt’s sua sponte vacation of portions of diyorce decree dealing with child custody, child
8 15-6-60(b)
support, alimony, and property division, to file
previously signed order reinstating another
judge’s custody order, where act of filing was
trivial ‘or clerical matter; decision memorialized
in order at issue was made prior to filing of
notice of appeal, and omission was simple delay
in clerical act of filing such order with clerk.
Reaser v. Reaser, 688 N,W.2d 429, 2004 S.D.
116. Child Custody €= 906
15-6~60(b). Relief on ground . of mistake--Inadvertence—Excusable neglect--Newly discovered evidence—Fraud .
On motion and ‘upon’such terms as are just, the couxt may relieve a party or
his legal representative from. a final judgment, order, or proceeding for the
following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect; ae
(2) Newly discovered evidence which by. due diligence could not have been
discovered in time to move
for a new trial under § 15-6-59(b);
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse:party; :
. (4¥ The judgment is vgid;
(5) The judgment has been satisfied, released, or discharged, ora prior
judgment upon which it is based has been reversed or ‘otherwise
vacated, or it is no longer’ equitable that the judgmeit should have
prospective application; or
(6) Any other reason justifying relief from-the operation of the judgment.
‘The motion shall-be made within a reasonable time, cand for reasons (£), 2),
and’(3) not more than one year after thé judgment, order or proceeding was
entered or taken. A motion under this subdivision (b) does not affect ‘the
finality of a judgment or suspend its operation.
Section 15-6-60 does not limit
the power of a. court te entertain an independent action to relieve a party from
a judgment, order, or proceeding, or to grant relief to a defendant not actually
personally notified as provided by statute or to set aside a judgment for fraud
upon the court.’
Source: SDC 1939 & Supp 1960, § 33.0108; sD RCP, Rule 60 ), as adop ed:
Ct. Order March 29, 1966, effective July 1, 1966. : a -
Cross References
Publication ‘serfice, time alldwed after judgment for defense, see § 15-9-22. cor tah
Quieting tax ite; relieffrom judgmént, see § 21-42-19. :
Quiet title judgment, relief, see 3° 21-41-28,
Smail claims procedure, relief from judgment, see §§ 15-39-75 and 15-39-76,
Law Review and Journal Commentaries
Hinrichs, Weston v. Jortes: Using State Court
Subject Matter Jurisdiction by Estoppel to Undermine Tribal Sovereignty, 45 S.D, L. Rev. 345
(2000).
Nelsen, In: Re D.F.. The South Dakota Supreme Court Misses an Opportunity to Establish
An Appropridte Due’ Diligence Standard When
Serving Notice by Publication in Parental
629
APPENDIX 003
IVIDENCE
Bs
n difference
1, the whole
Ypreter:
impartially
wtion to any
tions which
statements
jing] under
2 pains and
ot. object to
2056, ch 239
WITNESSES : § 19-19-606
_ Research References
ALR Library Treatises and Practice Aids
Disqualification of judge on ground: of being a Wharton's Criminal Evidence § 49:41.
witness in the case, 22 AL.R.3d 1198. . Wright & Miller: Federal Prac. & Proc, § 6061,
Judge as a witness in a cause on trial before him,
157 ALLR, 315,
Notes of Decisions
In general 1 : mation, where trial judge was named as 2 witness
because he was state’s attorney at time defendant's
. . probation was revoked on previous criminal viola-
1. Inj general tion and trial court ordered name struck from
- Naming trial judge aa witness in information information, State v. Mitchell, 1992, 491 N.W.2d
charging ving defendant with six counta of second-de- 488, denial of habeas corpus affirmed 524 N.W.ed
gree rape was not grounds for dismissal of infor- 860, Indietment And Information ¢ 144.1(1)
19-19-606. Juror’s competency as a witness
(a) At the trial. A juror may not testify as a witness before the other jurors 3 at the trial.
If a juror is called to testify, the court must give a party an opportunity to object outside the
jury's presence.
(b) During an inquiry into the validity of a verdict or indicfment.
(1) Prohibited testimony or other evidence. During an inquiry into the validity of a
verdict or indictment, a juror may not testify about any statement made or incident
that oceurred during the jury's deliberations; the effect of anything on that juror’s or
another’ juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a Jarar’s affidavit or evidence of a juror’s
statement on these matters.
(2) Exceptions: A juror may testify about whether:
(A) paraneous prejudicial information was improperly brought to ‘the j jury's attenlon;
(B) An outside influence was improperly brought to bear on any juror; or
(C) A mistake was made in entering the verdict on the verdict form.
Source:’ SL 1979, ch 858 (Supreme Court, Rule 78-2, Rule 608); SDCL $8 19-14-6, 19-14-7; SL 2016, ch
289 (Supreme Court Rule 16-89), eff. Jan, 1, 2016.
Law Review and Journal Commentaries
“Bagel, Note: State v». Finney: Admissibility of S.D.C.L. Section 19-14-7, 29 SD; L. Rev. 144
Juror Affidavits Alleging Racial Prajudice Under (1988).
Library References
Criminal Law @957, CLS. Criminal Law §§ 1415 to wis. Hy
‘New Trial 143, CLS. New Trial 8§ 207 to 208; 210, 214, to 215.
Trial 344, ~ : CLS, Trial §§ 921 to 926.
Witnesses 668, 73. CLS. Witnesses §§ 191 to 193, 197, 199.
Research References
ALR Library - Encyclopedias
Misconduct of juror in civil case outside jury 24 Am. Jur, Proof of Facts 2d 638,
room, admissibility of juror's affidavit or testimo-
Ty relating to, 32 A.L.R.3d 1356. Treatises and Practice Aids
Prejudicial Effect of Juror Misconduct Arising +s Cri & 502, Bate,
from Internet Usage, see 48 A.L.R.6th 135. Wharton's Criminal Evidence §§ a
Propriety of Juror’s Tests or Experiments Outside of Court or Jury Room, see 77 AL.R.6th
251.
1%6
APPENDIX 003.5
§ 21-27-38
Note 2.5
Young, 879 N.W.2d 108, 2016 8,D, 89. Habeas
Corpus & 6911
8, Summary dismissal
A court may dismiss a-habeas corpus petition for
failure to state a claim only if it appears beyond
doubt that the petition sets forth no faets to support a claim for relief. Riley v, Young, 879 N.W.2d
108, 2016 8.D. 39. Habeas Corpus ¢ 691.1
‘To dismiss an application for a writ of habeas
corpus without receiving evidence, the application
yaust. be unspecific, conclusory or speculative, setting forth no facts that could support a claim for
relief; the application must fail to meet a minimum
21-27-3.1. Time for application
perfected,
Source: SL 1988, ch 169, § 4; SL 2012, ch 118, § 1.
SL 2012, -ch,118, § 1, rewrote the section, which
-read: :
“An application for relief under this chapter may
be filed at any time except that proceedings there-
ALR Library :
Actual Innocence Exception to Procedural Bars
in State. Post-Conviction Proceedings, see 97
AL.R.6th 263,
Statute of limitations, tolling during pendency: of certiorari petition in the Supreme Court seeking review of denial of
state postconviction relief, see Lawrence
y. Florida, 2007, 127 S.Ct, 1079, 649 U.S.
_ 827, 168 L.Bd2d 924,
‘Timeliness of petition, collateral review, seo
‘Wall v, Kholi, 2011, 181 S.Ct, 1278, 562
U.S, 645, 179 L.Ba.2d 282..
The repealed section, which ‘related to dismissal
af delayed applications, was derived from SL 1989,
21-27-8.3. Two-year statute of limitation .
A two-year statute of limitation applies to all applications for relief under this chapter.
‘This Kmitation period shall run from the latest oft ;
(1) The date on which the judgment became final by the conclusion of direct review or
" the expiration of the time for seeking such review; . ,
(2) The date on which the impediment to filing an application created by state.action in
violation of the constitution or laws of the United States or of this atate is removed, if
auch impediment prevented the applicant from filings . :
90 *
JUDICIAL REMEDIES :
thresliold. of plauaibility, Riley v. Young, 879
N.W.2d 108, 2016 &.D. $9. Habeas Corpus = 675
4, Burden of proof. a
A habeas corpus applicant hae the initial burden
of proof to establish a colorable claim for relief.
Lawrence v. Weber, 797 N.W.2d 788, 2011 §.D, 19.
Habeas Corpus ¢= 705.1
The applicant for habeas corpus must satisfy the
initial burden ‘to prove the need for relief by a
preponderance of the evidence. Lawrenee v. Weber, wr N.W.2d 788, 2011'S:D. 19, Habeas Corpus
M4
Proceedings under this chapter eannot be maintained while an appeal from the applicant's
conviction and sentence is pending or during the time within which such ‘appeal may be
Historical and Statutory Notes
under cannot be maititained while an appeal from
the applicant's conviction and sentence is pending
or during the time within which such appeal may
be perfected.”
Research References
United States Supreme Court
_ ‘Timeliness of petition, prisoner to seek relief -without substantial ‘delay, sea Walker
_ ¥. Martin, 2011, 181 8.Ct, 1120, 562 U.8.
. 807, 179 L.Bd.2d 62.
* Timeliness of petliton, miscalculation of tolling period, sua aponte corrections by federal court, see Day v. McDonough, 2008,
126 S.Ct, 1675, 647 U.S. 198, 164 L-Ed.2d
876, rehearing denied 127 8.Ct. 1884, 549
US, 1261, 167 L.Bd.2d 175,
21-27-8.2, Repealed by SL 2012, ch 118, § 2
Historical and Statutory Notes
APPENDIX 004
SUDICIAT
ey
re
at
CE
OT
br
Source: 81
ALR Libii
Actual I
in State
ALRAG
Federal h
Limit
Cla
a® gen en
Actual in
Due proc
Retroact
-" Due’
. To me
petitioner
passage 4
period
years fr
timely fi
Dooley, |
tlonal L
21-27-
as
ifat
color or
court a
shown
if the |
proceel
counse.
person
of all
issuing
appoin
chapte
Source
ch 118,
REMEDIES
vy Young, 879
Corpus & 675
8 initial burden
leim for relief.
3, 2011 8.D, 19.
aust satisfy the
vor relief by a
vrenee v, Web-
Habeas Corpus
2 applicant's
peal may be
1 appeal from
wee is pending
h appeal may
"2 to seek re-
» Bee Walker
20, 562 U.S,
‘ation of tolltions by fedaough, 2006,
164 L.Ed2d
3h 1894; 649
3 chapter,
review or
-action in
moved, if
"Actual Innocence Exception to Procedural Bars
* % Due process
‘proceeding, appoint counsel for the indigent person pursuant to chapter 234-40, Such
JUDICIAL REMEDIES *
{8} The date on which the constitutional right assérted in the application ‘was. initially
recognized by the Suprame Court of the United States or the Supreme Court of this
state if the right has both been newly recognized and is retroactively applicable to
cages on collateral review; or ays
(4) The date on which the factual predicate of the claim or claims presente
been discovered through the exercise of due diligence. wes
Source: SE, 2012, ch 118-4 3.°
wuld have
Research References
ALR Library
in State Post-Conviction Proceedings, see 97 ‘
ALR.6th 263.
. United States Supreme Court :
Federal hehead corpus, - . to state prisoners’ habeas petitions, see
Limitation of actions, Wood v. Milyard, 2012, 182.8.Ct. 1826,
Claim of actual Jimocence can overcome 182 L.Ed.2d 733,-Habeas Corpus 848
statute of limitations for state prisoner's i
initial petition for federal habeas rellef, [mations period for fling federal Rabon
sea MeQuiggin v. Perkins, 2013, 188 S.Ct. Pp ad when Pi z 3
1024, 186 L.Ed2d 1019. Habens Corpus direct appeal in state courts expired, see
e=G0818 . Gonzalez v. Thaler, 2012, 182-.Ct, 641,
Federal appellate courta can in exceptional” 181 L.Ed.2d 619,
cages raise forfeited limitations defensea
Notes of Decisions
a
Aetual innocence 1- 1, Actual innocence ae
Dueprocess % . When considering a claim of actual innocence,
Retroactive application 2 the habeas court must consider’ all’ fhe evidence,
old and naw, incriminating and exculpatory, without regard te whether it would necessarily be
admitted under rules of admissibility. that would
. . govern at trial, Engesser v. Young, 856 N.W.2d
. To meat requirements of due process, habeas 471, 2014 8.D, 81. Habeas Corpus € 462
petitioner, whose conviction became final prior to 9 potroactive application :
passage of statute establishing two-year Kimitations “action filed by one petitioner, whose convicperiod for habeas claims, had an additional two — tion became final prior to passage of atatute éatabyears’ from effective date of statute to permit lishing two-year limitations peridd for habeas
timely filing of his habeas action. Hughbanks v. claime, was subject to limitations period’ set forth
Dooley, 887 N.W.2d 319, 2016 S.D. 76, Conatitue in statute. Hughbanks v, Dooley, 887 N.W.2d 319,
tional Law @= 4489; Habeas Corpus @ 6088 20165.D. 76, Habeas Corpus 603.3
21-27-4, Counsel appointed for indigent applicant-—Counsel fees—Ineffective
assistance of counsel :
If a person has been committed, detained, imprisoned, or restrained of liberty, under any
color or pretense whatever, civil or criminal, and if upon application made in good faith to'the
court of judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily
shown that the person ie without means to prosecute the proceeding, the court or judge shall,
if the judge finds that auch appointment is necessary to ensure a full, fair, and’impartial
counsel. fees or expenses shall be a charge against and be paid by the county from which the
person was coramitted, or for which the person is held as determined by the court... Payment
of all such fees or expenses shail be made only upon written order of the court, or judge
issuing the writ. The ineffectiveness or incompetence of counsel, whether retained or
appointed, during any collateral post-conviction proceeding is not grounds for relief‘under this
chapter, . . . ° o
Sou SL 1948, ch 126; SDC Supp 1960, § 87.5604-1; SL 1969, ch 163; SL 1988, ch 169, § 6; SI. 2012,
ch 118, § 4, . .
91
APPENDIX 005
MEDIES
vartial pro-
for capital
ars is govstandard,
Jentencing
lv, Clair,
id.2d 135.
ourt held
rating pepetitioner
a hearing
2010 S.D,
8 Corpus
‘stance of
ael’s perar-lawyer
3 decision
considerto insure
realm of"
vafeasion.
§.D. 100,
counsel,
aresumpthin the
kolaev v.
Criminal
counsel
& unless
Jefers to
1g counits own
- actions
cance of
72, 2008,
Corpus
ts only
relief is
ant the
d, 798
Se 690
§ 21-27-14
. . Note 6
21-27-51. Second or subsequent application for writ—Leave to file—Dismissal ; :
A claim presented in a second or subsequent habeas corpus application under this chapter
that was presented in a prior application under this chapter or otherwise to the courts of thia .
state by the same applicant shall be dismissed. ‘
Before a second or subsequent application for a writ of habeas carpus may bé filed, the
applicant shall move in the cireuit court of appropriate juiisdiction for an order authorizing
the applicant to file the application.
The assigned judge shall enter an order denying leave to file.a’second or successive
application for a writ of habeas corpus unless:
(1) The applicant identifies newly diseavered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and convineing
evidenee that no reasonable fact finder would have found the applicant guilty of the
underlying offense; or toe.
(2) The application raises a new. rule of constitutional law, made retroactive to c#ses on
collateral review by the United States Supreme Court and the South: Dakota
Supreme Court, that was previously-unavaileble. The grant or denial of an-euthori-
JUDICIAL REMEDIES
zation by the citeuit court to file a second or subsequent application shall‘not be -
: appealable.
Source: SL 2012, ch 118, § 6.
Research References
ALR Library .
- Actual Innacetice Exception ta Procedural’ Bars
in State Post-Conviction Proceedings, see 97
ALR.6th 263.
Notes of Decisions
Newly discovered evidence J
J, Newly discovered evidence...
In order to file successive petition for writ of
habeas corpus, a defendant was required to show
only tha existence of newly discovered evidence,
rather than constitutional error in addition to newly diseovered evidence, where applicable statute
gave a habeas court authority to consider merits of
successive petitions for writ of habeas corpus if
defendant brought forth newly discovered evidence
that, if proven and considered in light of other
evidence, clearly and convincingly established that
no reasonable fact finder would have found defendant guilty of underlying offense, and there waa no
statutory requirement of a showing of constitution-
21-27-14, Hearing and disposition of cause by judge
Notes of Decisions :
~ of the criminal act, application af the corvobaration
2. Right to hearing
Habena corpus. petitioner was entitled to an evidentiary hearing on his claim that defense counsel
rendered ineffective assistance by allegedly failing
to advise him of the corroboration rule before he
pleaded guilty to sexual contact with a child; petitioner asserted that his incriminating statements
to law enforcement officers were the only evidence
98
al error. Engesser -v. Young, 856 N.W.2d 471,
20145.D. 81, Habeas Corpus € 888)
Defendant's newly discovered evidence, if proven
and viewed in light of other evidence, established
by clear and convincing evidence that no reasonable juror would have found defendant: guilty, and
therefore defendant was entitled to new trial on
habeas corpus - petition following vehicle manslaughter and vehicle battery conviction, where
newly discovered evidence consisted of two witnesses who testified that a woman was-driving the
vehicle shortly before the erash, and .the only
dispute issue at trial was whether defendant or a
woman in the vehicle was driving the Vehicle at the
time of the crash. Engesser v: Young, 806°N.W.2d
471, 2014 S.D. 81. Habeas Corpua’¢=.494":-
&
rule could require a judgment of acquittal, and his
allegations were not unapecific, conclusory, or
speculative, “Steiner v. Weber, 816 N.W.2d 649,
2011 8.D. 40, Habeas Corpus = 746
6, Presumptions and burden of proof
The habeas petitioner bears the initial burden of
showing by a preponderance of the evidence that —
APPENDIX 006
i
§ 23A-27-4
Note 13
In determining whether sentence appears
grossly disproportionate, Supreme Court considers the conduct involved, and any relevant
past conduct, with utmost deference to the Legislature and the sentencing court; if the sentence appears grossly disproportionate, an intra- and inter-jurisdictlonal analysis shall be
conducted, State! v. Dubois, 746 N.W.2d 197,
2008 S.D. 15. Sentencing And Punishment eS
1482
‘When assessing ihe constitutionality of 4 par.
ticular seriterice, Supreme Court applies the
gross disproportionality test. State v. Dubois,
746 N.W.2d 197, 2008 S.D, 15, Criminal Law
& 1134.75
Only when the sentence appears grossly disproportionate will Supreme Court reviewing
Eighth Amendment challenge to seritence conduct an intra and inter-jurisdictional analysis.
‘Staté v. Blair, 721 N.W.2d 55, 2006 8.D, 75,
it |. Sentencing And Punistiment
Té. assess a challenge ‘to proportionality of
sentencing under the Eighth Amendment, Supreme Court first determines whether the sentence appears grossly disproportionate; to accomplish this, appellate court considers the
conduct involved, and any relevant’ past conduct, with utmost deférence to thi gislature
and the sentetiding court, and if thése circum-
+ stances fail io suggest gross’ disproportionality,
review ends, State v. Blair, 721 N.W.2d 55,
2006 S.D. 75, rehearing denied. Sentencing
Arid Punishment ¢ 1482
te circumstances fail to suggest gross disproportionality of sentence challenged as cruel and
unusual punishment under Eighth Amendment,
the Supreme Court's review ends; if, on the
other hand, the sentence appears grossly disproportionate, the Supreme Court may, in addition
CRIMINAL PROCEDURE
ta examining other Solem factors, conduct an
intra- and inter-jurisdictional analysis to’ aid its
comparison or remand to circuit court to con-
h comparison before ‘resentencing; the
Coutt may also consider. other relevant:factors, such as effect upon sootety of this
Hae OF: offense. “U.S. CA, Const.Amend, 8.
To: assess challenge to propeitionality of of & sentence’ ‘under Eighth © “Amendment; Supreme
Court first determines whethér, sentence appears grossly disproportionate, considering conduct involved, and any relevant past conduct,
with .utmdst deference to. the legislature -and
sentencing court; if these circumstances fail to
suggest gross disproportionality, review enqs,
but -if-senience appears grossly disproportion,
ate, Supreme Court may, in addition ta examining éther Solem factors; conduct-an intra; and
interjurisdictional analysis to‘aid its comparisbii
or remand to circuit court ‘to conduct sith
comparison: before resentencing, and: Supréme
Court may also consider other relevant factors,
sucti as effect iipon ‘society of this type of ‘of
fense. U.S.C.A: Const:Amend, 8, - State-v. Milk,
607 N.W.2d 14, 2000 S.D, 28. Criminal ‘Law
€ 1134.23; Criminal Law @ 1134.78; Crimi-
In’ ‘deigenining whether | sentence. shacks collective.conscience; Supreme Court examines defendant’s .general. moral character; . mentality,
habits; .sacial environment, tendencies, . age,
aversion or inclination to commit ‘crime; iife,
family, ‘occupation, and previous “erlminal reé-
ord.” U,8:C.A: Const.Ainend, 8. State v.-Heijum, 542 'N.W.2d 760, 1996 s. D, 7. _ Criminal
Law @ 1134. 23, : .
bet
23A-27-4.1, Relief from Judgmént—Grounds—Time of motion’
Within a reasonable time but not more than one year after: final judgment, a
court on motion of a defendant or upon its own motion may relieve a defendant
from final judgment if required i in the interest of justice.
‘If the original trial
was by a court without a jury, ‘the court on motion of a defendant or upon. its
own motion, may. vacate the judgment if entered, order a.new trial or take
additional testimony and direct the entry of a new judgment. ,
A motion under this section does not affect. the finality of a Judgment, or
suspend its-operation.
‘If an appeal is pending, the court may grant a:
upon remand of the case.
Source: SL 1987, ch 410 (Supreme Court Rule 86~ a6
426 SS
otion under this section only
aa)
APPENDIX 007
: Section
23A4-29-1. Time for motion
time
A motion for new trial
. in the same manner-as provided by §
- be served and filed -not* later than
1978, ch 178, § 377; SL 1987,
(Supreme Court Rule 87-14).
see § 23A-30-1 et seq.
Arrest of judgment,
see § 15-6-59(a).
Grounds for new trial in civil case,
New trial motion not prerequisite to
‘Time of taking appeal, see § 23A-32-15.
the South Da-
Parsons, Appellate Practice in
Rev. 1 (2011).
kota ‘Supreme Court, 56 S.D, L.
Criminal Law ¢951.
Westlaw Topit No, 110,
ALR Library
Absencs of judge from: courtroom during
criminal trial up to time of reception of
verdict as ground for new trial, 34 ALR2d
683, . . we,
Abuse of witness by counsel as ground for
-new trial; 4 A.L.R: 414. :
Amendment of motion for new trial aftér expiration of time for filing motion, 69 ALRId
845,933. . .
Beliefs regarding capital punishment as disqualifying-juror in capital case—post-Witherspoon cases, 39 AL.R3d.550.
Communications between jurors and others
as ground for new trial in criminal case, 22
ALR. 254; 34 ALR. 103; 62. ALR. 1466.
Communications between’ witnesses and jur
rots, prejudicial effect, in criminal case, of,
9A.LR3d 1275, - as :
_ Counsel’s appeal in criminal case to aelé-interest of jurors as taxpayers, as ground for
new trial, 33, ALR. 459; °°
635
CHAPTER 234-29
” (RULE 33) NEW TRIAL
or new trial—Rulings thereon—Extension of time. |
23A-29-2, Effect of grant of new tiial—Evidence received. _
23A-29-1. Time for motion for new trlal—Rulings thereon—~Extension of
may be made under the same conditions specified and
15-6-59(b),
ten days after filing of the judgment.
* Gource: SDC 1939 & Supp 1960, 8§ 34.4003, 34.4004; SDCL §§ 23-50-3, 23-50-4; BE
ch 411 (Supreme Court Rule 86-37);
except that said motion shall
SL 1988, ch 433
Cross References
appeal, see § 23A-32-10.
Law-Review'and Journal Commentaries
Library References
C38, Criminal Procedure and Rights of the
Accused § 1993.
Research References .
Court reporter’s death
or disability prior to
transcribing notes a grounds for reversal
or new trial, $7 A.L:R.4th 1049. i
Court’s statetnent that if jury makes qnistake
in convicting it can be ‘corrected. by other
authorities, prejudicial effect, 5. ALR3d
975.
Deafness of juror as ground for impeaching
verdict, or securing new trial or reversal on
appeal, 38 ALRath 1170...
Emotional Manifestations by Victim or Famify of Victim During Criminal Trial as
Ground for Reversal, New Trial, or Mistrial—Emotional, Manifestations by. Victim or
Relative ag Spectator During Particular Trial Phases, 98 A.L.R.6th 455. .
Emotional Manifestations by Victim. or Famtly. of Victim During or. Immediately Before
or After Own Testimony During Criminal
‘Trial as Ground for Reversal, New Trial, or
Mistrial, 99 AL-R.6th 113.
APPENDIX 008
866 Pa.
COMMONWEALTH of Pennsylvania,
Appellee
v.
. Mark Newton SPOTZ, Appellant,
No, 576 CAP.
Supreme Court of Pennsylvania.
Sept, 3, 2014,
Appellant's Motions to File Post-Submission Communications Appellant's Motion for Reeusal of Chief Justice Castille
Appellant's Motion for Withdrawal of Concurring Opinion Commonwealth's Answer
and Motion for Sanctions.
Appellant's Withdrawal of Motion: for
Withdrawal of Concurring Opinion and
Motion for Recusal.
Commonwealth’s Answer, including Request for a Rule to Show Cause.
Commonwealth’s Request for Leave to
Respond to Verified Statement.
Appellant's Motion to Strike Commonwealth’s Response,
SINGLE JUSTICE OPINION
ON POST-DECISIONAL
MOTIONS
Chief Justice CASTILLE,
1, Introduction ~
The central ancillary motion pending
here asks that I withdraw my Concurring
Opinion because I commented on the conduct and agenda of appellant’s counsel,
who are affiliated with the Philadelphiabased Federal Community Defender’s Of
fice (“FCDO"), I began my concurrence
by noting that the source of the FCDO’s
funding for its questionable forays into
state court capital proceedings was not
clear, though it appeared that the Administrative Office of Federal Courts (herein-
99 ATLANTIC REPORTER, 3d SERIES
after “AO”) played a central role, and that
_ this federal role in state court capital liti-
gation was implemented:-without the consultation or involvement,.of this Court or
any other relevant Pennaylvania authority.
T noted that:
The federal courts—as well as other fedeval authorities and “the Pennsylvania
citizenry generally (who may not even
be aware of this unusual federal activity
in state courts)—may. not be aware of
just how global, strategic, and abusive
these forays have become, The federal
‘judicial policy has raised issues that
should be known to the federal authorities financing and authorizing the incursions; to Pennsylvania’s Senators and
House members; and to the taxpayers
who ultimately foot that bill. This is an
appropriate case to highlight those issues.
Commonwealth v. Spotz, 610 Pa, 17, 18
ASd 244, 230 (2011) (Castille, C.J., concurring, joined by McCaffery, J.). I added
that I was writing to these global issues
involving the FCDO, in part, because the
cumulative effect of: the FCDO strategy
and agenda “has taken ‘a substantial and
unwarranted toll on state courts.” Jd.
Consideration of the post-decisional motions in this case, and intervening developments in other capital. matters involving
FCDO appearances in, btate court, have
confirmed and heightened the grounded
concern with the conduet of the FCDO in
this case, and more importantly, with its
giobal agenda in Pennsylvania capital
cases, As I will detail below, the incremental insinuation of the FCDO into Pennsylvania capital cases has been remarkable
in’ its stealth and pervasiveness. The
FCDO has designated itself the de facto
State Capital Defender’s Office, involving
itself not only in. Virtually all capital
APPENDIX 009
COM. vy. SPOTZ
Pa. 867
Cite as 99 A.3d 866 (Pa, 2014)
PCRA! {itigation, but also in direct capital
appeals, and even, in one instance, as amicus curiae on behalf of a foreign nation,
Mexico, in support of a Mexican national
who murdered three people. No authority—state or federal—appointed the FCDO
to take on this statewide role, and no
authority has approved the arrangement.
Pennsylvania does not have a statewide
capita] prosecutor's office; and notably, in
a great many capital cases, the chief law
enforcement officer of the Commonwealth,
the Attorney General, echoed by county
prosectitors, has taken the position that
the FCDO should not be permitted to continue in Permsylvania capital cases without
proving its specific federal authorization to
do so. ,
In addition to comprehensively involving
jtself in state capital litigation without any
authorization, the FCDO has established
its monopoly through means known only to
itaelf, Remarkably, when directed by this
Court to provide simple and modest information confirming a claim that it has not
supported its private capital case agenda
in Pennsylvania with improperly diverted
federal funds, the FCDO rasponse—the
response of these officers of the court, to
the Court with supervisory authority over
the practice of law in Pennsylvania-has
been refusal and the removal of cases to
federal court, ensuring yet more FCDO
delay in those capital matters.
The circumstances and gbstructionist effect of the FCDO’s silent takeover of the
capital PCRA defense function in Pennsylyania requires that Pennsylvania reassert
control over the litigation of state capital
matters. Death penalty opponents, such
as the FCDO, can then redirect their efforts to the political arena, where they
1. Post Conviction Relief Act, 42 Pa.C.S.
§ 9541 et seg.
belong. This Court has'a responsibility
for the entire Pennsylvania judicial system, to ensure the delivery of swift, fair,
and evenhanded justice.in all cases. We
are not obliged to indulge or countenance a
group which manipulates: and abuses the
judicial process in Pennsylvania in the
hopes of achieving a global political result
that it has failed to sécure through the
political process,
This restoration of proper authority will _
leave a void in the short run. But, the
void is an opportunity to return capital
ease advocacy to principled moorings.
The restoration will require that Pennaylvania authorities, including this Court, step
up and engure the provision of the funding,
training and resources hecessary to ensure
that capital defense representation in
Pennsylvania fully meets Sixth Amendment standards, with competent, properly
compensated and dedicated lawyers who
act zealously to advance the cause of their
“clients, but who act ethically as well, mind-
ful of their duties.to-. the courts and the
justice system overall; I believe the Commonwealth is up to'the'challenge.
I do not in the least ‘criticize principled
representation of indigent capital defondents; such a principled endeavor represents lawyering in the best tradition of the
bar. But, as I explain below, the FCDO
continues to pursue an agenda beyond
mere zealous representation, one which
routinely pushes, and in frequent: instances, as here, far exceeds ethical boundaries.
FCDO lawyers appear in Pennsylvania
courts only as officers of this Court; consequently, they are answerable to the
Court, So long as the organization remains unauthorized to pursue its global
agenda by any Pennsylvania authority, and
2. See Commonwealth'v. Padilla, No, 567 CAP,
discussed infra. The Court's decision affirming the judgment of sentence in Padilla is
reported at — Pa. +, 80 A.3d 1238 (2013).
APPENDIX 010
868 Pa.
so long as the FCDO refuses to be candid
with the Court about its authorization and
funding, it cannot be permitted to continue
its representation of capital’ defendants in
Pennsylvania, absent a specific federal
court. order authorizing the specific endeavor in state court in an individual case.
Before proceeding to a discussion of the
specific Motions pending before me, and to
give a sense of the FCDO's conduet as
viewed from the perspective of other
judges not affiliated with this Court, 1
begin with but two examples, In Abdul—
Salaam v. Beard, 16 F.Supp.8d 420, 2014
WL 1653208 (M.D.Pa.2014), the Honorable
John E, Jones, III, of the Middle District
of Pennsylvania, ended his neatly 200-
page memorandum denying habeas corpus
relief with the following observation;
Nearly two decades have passed since
Officer Willis Cole was murdered. Over
nineteen years have elapsed since the
trial that vesulted in Abdul-Salaam’s
conviction. And yet this Memorandum
and the Order that follows will not end
the legal maneuvering that seeks to
overturn both his conviction and resulting sentence of death at the hands of a
jury of his peers.
It was not until well after the founding of this nation that the federal writ of
habeas corpus was extended to prisoners
in state custedy, But like a rolling
freight train, the use of the Great Writ
gathered speed in the ensuing decades.
It was adopted by the federal courts,
codified by Congress, revised, and to
gome degree limited in certain respects.
But the case at bar amply demonstrates
that there is something grievously amiss
in both our laws and jurisprudence as
they relate to federal habeas practice.
For while we admire zealous advocacy
and deeply respect the mission and work
of the attorneys who have represented
99 ATLANTIC REPORTER, 8d SERIES
Abdul-Salaam in this matter, they are
at bottom gaming a system and erecting roadblocks in aid of a singular
goal—keeping Abdul-Salaam from being put to death. The result has been
the meandering and even bizarre course
this ease has followed. Its time on our
docket. has spanned nearly alt of our
service as a federal judge—almost
- twelve years. We have given Abdul—
Salaam every courtesy and due process,
perhaps even beyond what the law af-
fords, And yet for.the family of Willis
Cole, and indeed for Abdul-Salaam and
his family as well, there has been no
closure. Rather, they have endured a
legal process that is at times as inseruta-
ble as it is incompréhensible. Moreover,
it will soon take’ another turn as the
Third Cirenit Court of Appeals reviews
our determination.
Id. at 611-12, “78 (emphasis supplied).
The PCRA trial court opinion in Commonwealth v. Eichinger, 657 CAP, which
is a matter of public record in a capital
appeal pursued by ‘the FCDO currently
pending hefore this Court, begins as follows:
In this capital case, Appellant ... ap-
peals from an Order entered April 4,
2012, dismissing his [PCRA] _peti-
tion.... If ever there were a criminal
deserving of the death penalty it is John
Charles Eichinger’ “His murders of
three women and:a-'three-year-old girl
‘were carefully planned, executed and at-
tempts to conceal. the murders were 6m-
ployed. There is no doubt that Appellant is guilty of these: killings. There is
overwhelming evidence of his guilt, ineluding multiple admissions to police, incriminating journal entries detailing the
murders written in Appellan?’s own
handwriting and DNA evidence.
We recognize that all criminal defendants have the right to zealous advocacy
APPENDIX 011
COM. v, SPOTZ
Pa. 869
Cite aa 99 A.3d 866 (Pa. 2014)
at all stages of their criminal proceedings. A lawyer has a sacred duty to
defend his or her client. Qur codes of
professional responsibility additionally
call upon lawyers to serve as guardians
of the law, to play a vital role in the
preservation of society, and to adhere to
the highest standards of ethical and
moral conduct. Simply stated, we all
are called upon to promote respect for
the law, our profession, and to do public
good, Consistent with these guiding
principles, the tactics used in this case
require the Court to speak with candor.
This case has caused me to reasonably
question where the line exists between a
zealous defense and an agenda-driven
litigation strategy, such as the budgetbreaking resource-breaking strategy on
display in this case. Here, the cost to
the people and to the trial Court was
very high. This Court had to devote
twenty two full and partial days to hearings. To carry out the daily business of
this Court visiting Senior Judges were
brought in, The Distriet Attorney's capital litigation budget had to have been
impacted. With seemingly unlimited access to funding, the Federal Defender
came with two or three attorneys, and
usually two assistants. They flew in
witnesses from around the Country.
Additionally, they raised averlapping fesues, issues that were previously litigated, and issues that were contrary to
3. The Motion to Withdraw Concurring Opinion was signed by Michael Wiseman, Esquire,
identifying himself as the supervisor responsible for the administration and operation of
the FCDO's state capital litigation projects.
Attorney Wiseman represented that “[hle ts
fully familiar with and aware of all facts asserted in this Motion.” In a later pleading
discussed infra, the Chief Defender, Leigh M.
Slipper, Esquire, responded to an administrative order the Court had specifically directed to Attorney Wiseman, Private counsel
Pennsylvania Supreme Court holdings
or otherwise lacked merit,
Opinion, Carpenter, J., July 25, 2012, at 1-
2
In Part VI, infra, I will address the
.FCDO's gravely misguided claim that their
litigation strategies, including tactics like
those displayed in this. case, Abdul—Salaam, and Bichinger) ‘are required elements of the capital defense function.
Il. Background
The Court affirmed the denial of PCRA
relief in this case and.today denies reargument, Disposition of reargument was delayed by ancillary Motions the FCDO*
filed with the reargument petition, and
further pleadings and circumstances occastoned by those Motions.’ This Opinion
and accompanying Order dispose of the
FCDO's initial Motions, the Commonwealth’s responsive Motions, and FCDO
responses. .
A. Ancillary Post-Decisional Motions
ond Per Curiam Administrative
Ordere *
Along with appellant's Reargument Application, the FCDO filed (1) a Mation for
my Recnsal on Reargument, @) Motion
for Withdrawal of-my Concurring Opinion,
and (8) correspondingMotions for Leave
to File the Motlons ds Post-Submission
Communications, The. FCDO also. requested that I refer the primary Motions
with the law firm Pepper Hamilton LLP filed
the FCDO's Binal pleadings.
4. The pendency of the-ancillary motions has
not delayed the ultimate progression of appellant's case since the FCDO filed a federal
habeas corpus petition immediately after this
Court's Opinion was issued; that petition remains pending since the.FCDO moved to stay
the petition pending. the outcome of appellant’s collateral attack upon another one of
his homicide convictions, See discussion in
Part VI, infra.
APPENDIX 012 ©
870 Pa.
to the full Court for decision. The FCDO
Motiona focus solely upon objections to my
Coneurring Opinion, The Commonwealth
responded with an Answer and Motion for
Sanctions.
The Court as a whole entered a per
curiom administrative Order on July 28,
2011, taking the FCDO Motions under advisement pending compliance with a diyactive contained in the Order, which was
necessary to resolve the Motions. The
Order noted that the Motion to Withdraw
Coneurring Opinion asserted as fact that {
was “incorrect” to suggest that the FCDO
may have misused federal funds by appearing in capital PCRA proceedings. In
fact, the-FCDO averred, it was in “full
compliance with applicable federal administrative rales and regulations and has a
separate source of funding to support” all
of its non-appointed litigation activities in
Pennsylvania state courts. The Order noted that the FCDO did not “provide or cite
to those applicable rules and regulations,”
which the FCDO invoked as proof that the
Concurring Opinion was “incorrect.” To
“properly determine the within Motions,”
the Court ordered as follows:
Michael Wiseman, Esquire, is hereby
directed, as an officer of this Court, to
file with the Office of the Prothonotary
of the Supreme Court of Pennsylvania a
verified “Statement of the FCDO's Involvement in Pennsylvania State Court
Litigation of Capital Gases,” which shall
include the following:
(1) an identification and explanation
of all federal authorizations and standards, including statutory and regulatory authority, governing the FCDO's
conduct of capital litigation in Pennsylvania state courts;
In Applications to Withdraw Appearance in
other capital cases, Attorney Wiseman has
stated ‘that he “left his employ" with the
FCDO on August 26, 2011, and is engaging in
99 ATLANTIC REPORTER, 3d SERIES -
(2) a listing of all Pennsylvania capital
defendants the FCDO is currently
representing, whether as primary
counsel or through formal or informal
assistance to Pennsylvania counsel of
record, in Pennsylvania state courts,
and whether by formal court appointment or not;
(3) an explanation of how the FCDO’s
representation came about in each
case and, if instances of representation did not arise from formal court
appointment, an accounting of the authority under which the FCDO undertakes representation in capital cases
in Pennsylvania state courts in which
it is not court-appointed.
Order, 7/28/11. Attorney Wiseman was
directed to file the verified statement within thirty days, Madame Justice Todd filed
a Dissenting Statement, which was joined
by Mr. Justice Baer.
Attorney Wiseman, neither complied
with the order nor-sought reconsideration
or relief from it, Instead, on August 22,
2011, the Chief Federal Defender, Leigh
M. Skipper, Esquire, entered his appearance Attorney Skipper also did not com-
_ ply with the order or seek reconsideration
or relief, but instead filed a 8-page pleading styled as “Appellant’s Withdrawal ” of
the FCDO ancillary motions (hereinafter
“Withdrawal pleading”), Attorney Skipper asserted, among other points, that,
“The FCDO representa capital defendants
in post-conviction proceedings in Pennsylvania state courts in order to satisfy the
exhaustion of state remedies requirement”
of the federal habeas statute, and 18
US.C, § 3006(A)(c) “permits attorneys to
represent clients in ‘ancillary matters ‘ay.
propriate to the proceedings,’ ” The plead-
the private practice.of Jaw, See Commonwealth v. Sanchez,- 605, CAP (motion filed
12/13/2012); Comimoriwealth v. Sepulveda,
553 CAP (motion filed 12/6/2012).
APPENDIX 013
COM. v. SPOTZ
Pa, 871
Cite as 99 A.3d 866 (Pa, 2014)
ing made no reference to whether the
FCDO. employed “a separate source of
funding to support” those “ancillary” activ.
ities to exhaust federal claims. Withdraw
al pleading, at 1-2 13. The Commonwealth
filed an Answer and requested a Rule to
Show Cause why the FCDO should not be
held in.contempt for its non-compliance
with the July 28 Order, On October 3,
2011, the full Court entered a second administrative order which provided, in relevant part, as follows:
: Neither Attorney Wiseman nor the
FCDO sought reconsideration or a stay
of the [July 28] Order. But, neither has
the FCDO complied with the Order. Instead, on August 22, 2011, the Chief
Federal Defender of the FCDO, Leigh
M. Skipper, Esquire, entered his appearance and concomitantly filed the instant pleading, styled as a “Withdrawal”
of the two FCDO Motions the Court had
taken under advisement and already acted upon. The Chief Federal Defender
asserts that the Order “califed] for an
office-wide response” and thus he was
responding to the Order with this pleading, Notwithstanding the “Withdrawal”
styling, the pleading disputes the propriety of the per curiam Order, contains
other argument, and requests action by
the Court in the form of vacating our
July 28 Order as moot.
The Commonwealth has responded to
the “Withdrawal” pleading by requesting the Court to issue a Rule to Show
Cause upon the FCDO to explain why
presently it should not be held in gon.
tempt for its noncompliance with our
prior Order. The Commonwealth notes,
inter alia, that the primary stated reagon for the “Withdrawal” is to enable
Appellant ta secure relief from his conviction in this Court so as to immediately proceed with federal habeas corpus
proceedings; however, the Commonwealth further notes, over two months
before filing the instant pleading, the
FCDO had already filed a 392-page habeas corpus petition in federal district
court on Appellant's behalf. Responding to the argument. included in the
“Withdrawal,” the Commonwealth also
notes that the authority the FCDO cites
to support its activities in Pennsylvania
state capital matters, such as this one, in
fact does not authorize its activities; indeed, existing statutory and decisional
authority, including’ authority from the
U.S. Supreme Court;.indicates that the
FCDO's state-court activities are not authorized, The . Commonwealth adds
that, (“i]t is immaterial whether counsel
deems withdrawal to be appropriate,” as
that decision is for the Court. Moreover, the Commonwealth notes: that its
Motion for Sanctions, which was occa~
sioned by the FCDO’s prior two Motions, remains pending and under advisement, and the Commonwealth is not
withdrawing that Motion; for that reason alone, the matter cannot he deemed
moot even if the FCDO were authorized
to unilaterally withdraw its pending Motions rather than respond to the Court’s
Order.
’ Upon consideration of the instant plead-
ings, it is hereby ORDERED that:
() The FCDO’s “Withdrawal” is construed by this’ Cott as an Application
for Relief seeking: Leave to Withdraw
the FCDO's prior Motions, and the
Application so construed i is taken under advisement.”
(2) Chief Federal Defender Leigh M.
Skipper, Esquire, id hereby directed,
ag an officer of this Court, to file the
verified Statement outlined in this
Court’s July 28, 2011 Order.
(8) In light of Attorney Skipper's citation to 18 U.S.C. § 8006A(c) in support of his claim that the FCDO’s
representation of Pennsylvania capital
APPENDIX 014
872 Pa.
defendants in state post-conviction
proceedings is Jawful, Attorney Skipper is also directed to produce a copy
of the federal court order appointing
the FCDO to represent Appellant, to
which the FCDO’s activities in Pennsylvania state court in this case are
“ancillary.”
(4) The verified Statement and federal court order of appointment shall ba
filed within ten days of the date of this
Order. No tangential pleadings from
the FCDO are to be accepted by the
Prothonotary in advance of the filing
of the verified Statement.
(5) The Commonwealth's request for
a Rule to Show Cause why the FCDO
should not be held in gontempt for its
non-compliance with our July 28, 2011
Order is taken under advisement, Attorney Skipper shall file a response to
the Commonwealth’s request for a
Rule to Show Cause within ten days of
the filing of the verified Statement.
Order, 10/3/11. Justice Baer filed a Dissenting Statement, which was joined by
Justice Todd.
B, FCDO Response and Subsequent
Pleadings
Thereafter, Attorney Skipper filed a
“Verified Statement in Response to the
Court’s Order of October 8, 2011” as well
as a “Response” to the Commonwealth's
Request for a Rule to Show Cause why the
FCDO should not be’ held in contempt,
1. Verified Statement
The Verified Statement first addresses
the authority of the FCDO to appear in
capital cases in state court. Contrary to
the FCDO claim in the Withdrawal pleading, Attorney Skipper no longer verifies
that the FCDO's activities in state court
are authorized by federal law as activities
ancillary to the federal habeas corpus exhaustion requirement. Instead, Attorney
99 ATLANTIC REPORTER, 3d SERIES
Skipper concedes that the FCDO is authorized to represent state and federal
death row inmates in federal court only
pursuant to 18 U.S.C, § 3599(a)(2), which
governs litigation of federal habeas corpus
petitions filed under 28 U.S.C. § 2254
(state prisoners) and §'2256 (federal prisoners). Attorney Skipper next notes the
federal habeae requiremént that state prisoners fairly exhaust their federal claims in
state court before pursuing them in federal
court, Attorney Skipper states that 18
U.S.C. §§ 8006A and 3599 empower feder-
“al courts to authorize’ appointed federal
habeas counsel to represent capital defendants in state court. Attorney Skipper
quotes Section 8599, which states that appointed federal habeas counsel shall represent tha defendant at “every subsequent
stage of available judicial proceedings.”
Id, § 85996). The key statutory qualifier
is that the activity. be. “subsequent” to
federal habeas review,, and indeed, after
quoting Section 3599(e), Attorney Skipper
cites Harbison v, Bell,556 U.S. 180, 129
$,Ct, 1481, 178 L.Bd.2d 347 (2009), which
held that Section 8699 authorizes’ appointed federal Kabeas cotinsel to represent
state capital defendants in post-federal habeas state clemency ‘review, Attorney
Skipper notes that, in the course of its
clemency discussion, the Harbison Court
added a footnate observing that federal
courts may determine, on a case by case
basis, that “it is appropriate for federal
counsel to exhaust. a claim in the course of
her federal representation.” Id, at 1489 n.
7, Attorney Skipper cites no federal authority for the proposition conveyed in the
Withdrawal pleading, i¢, that federal kabeas counsel is authorized, by virtue of
that appointment, to proceed to PCRA Titigation and comprehensively exhaust claims
in state court before pursuing federal habeas relief.
APPENDIX 015
COM, v. SPOTZ
Pa 873
Cite as 99 A.3d 866 (Pa, 2014)
Attorney Skipper then adverts to—but
does not provide—a “policy statement” of
“the Judicial Conference Committee on
Defender Services” predating Harbison by
more than a decade which, he says, would
approve of federal defender organizationa
exhausting state remedies for federal
claims, “where authorized by the presiding
federal judge.” Attorney Skipper does not
identify the authority under which this
Committee operated, its composition, or
whether the Committee’s opinion had, or
now has, actual force and effect; nor does
he state whether the policy statement comprises the “applicable federal administrative rules and regulations” to which Attorney Wiseman referred when he declared
that the FCDO was in “full compliance”
and that I was incorrect to suggest otherwise,
Turning to the other statutory provision
invoked to support the FCDO’s state court
capital activities, Attorney Skipper notes
that 18 U.S.C. § 3006(e) authorizes appointed federal capital habeas counsel to
represent capital clients in state court matters “ancillary” to federal habeas proceedings—but again, only when specifically authorized to do so by the federal judge
presiding over an active habeas petition.
Attorney Skipper then argues that the
restrictions in the federal statutory construct do not apply when the FCDO is
‘using non-grant [federal grant] funds” to
finance its activities. Attorney Skipper
states that nothing in federal legislation or
AO “policies” prohibits FCDO lawyers
from appearing as private lawyers in state
court, so long as federal grant money does
not finance that FCDO agenda. Attorney
Skipper does not address whether the
FCDO discloses to Pennsylvania courts
when it is acting pursuant to the FCDO’s
private budget and agenda, rather than as
counsel approved for a limited purpose by
a federal judge, supported by federal taxpayer funds,
Further explaining the supposed publie/private hybrid status of the FCDO, Attorney Skipper says the FCDO receives
private contributions and grants to engage
in non-appointed activities through its
“Pennsylvania Capital Representation Project.” Attorney Skipper states that the
AO js aware of the FCDO's “nonfederal
fund” activities, Attorney Skipper attaches no supporting documentation, nor
does he provide an explanation of the manner in which the FCDO'S state court aetivity in this case—including the commitment
‘of six FCDO lawyers ‘and numerous ex-
perts and investigators below, and preparation of thq_abusive brief filed on appeal-was funded. In: addition, he does
not suggest the amount: of private funding
available to support the FCDO's private
capital agenda in state capital proceedings.
And, he does not explain the mechanics of
the hybrid operation: ég., ave FCDO staff
salaried or do they bill (publicly and privately) by the hour; are benefits such as
health care, pensions, and leave time allo-
_tated between public and private funding,
atc, Noy, again, does Attorney Skipper
assert that the construct he describes represents the “applicable federal administrative rules and regulations” Attorney Wiseman referred to in asserting the FCDO's
full compliance,
Attorney Skipper next states that the
FCDO appears in state ‘court capital proceedings under a “range of cireumstances.”
Tn some eases, he says, a federal court has
authorized the activity; no examples or
copies of such federal court orders are
provided, In other’ cases, he says, the
FCDO ts appointed by a federal court for
federal habeas purposes and then determines to use nonfederal funds to’ appear
privately in state court to exhaust state
court remedies in advance of federal re-
APPENDIX 016
874 Pa.
view. In other cases, he says, the FCDO
males cost-allocations between private and -
federal taxpayer funding. Attorney Skipper further declares that in some cases,
the FCDO—using exclusively nonfederal
funds—appears in state court to “protect”
the rights of Pennsylvania capital prisoners who, in its opinion, are likely to be
entitled to FCDO representation if the
case ever proceeded to federal habeas review. Attorney Skipper adds that, in some
instances, the FCDO has been appointed
to represent capital PCRA petitioners in
state court; he does not state under what
authority such appointments were secured;
in any event, these activities likewise must
fall under the FCDO’s private agenda,
since it would be inappropriate to use federal funds for the endeavor.
Following this summary, Attorney Skipper represents that “[t]he FCDO believes
we have properly entered appearances” in
the PCRA cases he lists in an accompanying summary of then-open Pennsylvania
capital cases in which the FCDO was involved. Moving from the question of entry
of appearances to the use of federal funds,
Attorney Skipper continues that the
FCDO, in conjunction with the AO, “takes
steps to ensure that the costs of litigation
are properly allocated between federal and
other funding sources” and, he declares, as
of the time of the Verified Statement at
least, “such allocations are proper.” No
definition of what are deemed to be “costs
of litigation” is offered. Nor is any documentation offered in support of this averment, so that its accuracy may be measured here, in the context. of the FCDO's
allegation that my Concurring Opinion
must be withdrawn because, inter alia, it
“incorrectly” suggested that the FCDO
misused federal funds to support its private state court capital agenda.
Notably, however, Attorney Skipper
states that, to discharge his ethical duties,
99 ATLANTIC REPORTER, 3d SERIES
he now “corrects” Attorney Wiseman's absolutist, assertion of “the FCDO’s ‘full
compliance with applicable federal admin.
istrative rulea and regulations.” Attorney
Skipper explaine that internal reviews of
cases “have discloséd situations in the past
in which prior allocations of costs were not
in full compliance with. administrative rules
and regulations.” Attorney Skipper does
not identify these cases where the FCDO
violated federal funding restrictions, as
measured by the “administrative rales and
regulations” he does not provide and within a system of cost: allocation that is not
deseribed; nor does'‘he explain how pervasive and longstanding the violations were
“or whether the extraordinary commitment
of resources in this case represented one
such violation.
Attorney Skipper next advises that the
FCDO, along with the AO, is “taking further measures and adding additional
safeguards” to ensure compliance with
the undisclosed federal rules and regulations. No specifics or: supporting documentation are offered to permit an assessment of the FCDO's prior claim of
“full compliance,” its current position that
it was formerly non-cornpliant,-but now is
compliant, or its. assurance that “new
measures” will prevent.a continuation or
recurrence of the prior violations. Nor,
significantly, are any. specifics provided
that would offer the:Court any assurance
that, in permitting the FCDO to litigate
in Pennsylvania courts where it has not
been specifically authorized by federal
court order, Pennsylvania courts are not
facilitating a continuing, improper diversion of federal taxpayer money to support the FCDO's private capital case
agenda, In this regard, it is notable that
the FCDO never indicates in its entries
of appearance and its pleadings in Pennsylvania courts whether it is appearing in
its capacity as purely-privately-funded
counsel, or in its capacity as the federal-
APPENDIX 017
COM. v. SPOTZ
Pa. 875
Cite as 99 Add 846 (Pa, 2014}
ly-financed “federal defender." The
FCDO affiliation by which FCDO lawyevs routinely identify themselves gives
the impression that the organization's appearances in state court are sanctioned
and supported by the federal government.
The Verified Statement next addresses
this Court's directive to identify the Pennsylvania capital defendants the FCDO was
then representing or assisting, whether
the involvement was by court appointment,
and how and under what authority the
FCRO was involved if not by court appointment. Attorney Skipper first seems
to suggest that Congress’s restrictions on
appointed federal habeas counsel's appearances in state court does not prevent the
FCDO from diverting federal funds to investigate prospective federal claims and
provide the fruit of that Tabor to “clienta”
who may then present the claims in state
court. Parenthetically, this is a strange
assertion given Attorney Skipper’s prior
averments. Under Attorney Skipper’s
own account, federal funds may only be
employed in state court with specific federal court authorization. Moreover, the
FCDO has no “client” for purposes of federal grant expenditures except when it has
been appointed to actively puraue federal
habeas corpus relief, which can only oceur
after the defendant’s state court remedies
have been exhausted: that is the statutory
gine qua non for court-authorized “ancillary” or “subsequent” state court litigation.
Attorney Skipper identifies no statute that
permits the diversion of federal tax dollars
for advance shadow activity in support of a
non-client’s state court capital pleadings.
To the extent the FCDO continues to use
federal funding for this sort of activity, the
“further measures” and “additional safeguards” Attorney Skipper adverts to do
not address the problem.
Attorney Skipper also provides a chart
with a list of cazes—cases in addition to
the untold number of. “fruits of its labor”
eases-in which the FCDO-was then providing representation in. Pennsylvania state
courts to capital defendants, or was consulting with lawyers actually appointed or
retained for the purpose, The chart also
lists whether the FCDO was appointed
and by what court, and if not, how the
FCDO became involved.
The chart is a remarkable snapshot of
just how thoroughly the. FCDO has involved itself in Pennsylvania state capital
litigation. According to the chart, FCDO
lawyers were then actively providing representation in Pennsylvania state court litigation in 108 relevant cases, 97 of which
were capital. (From other notations, it
appears that the 11 noncapital matters inyolve defendants who have or had separate
capital convictions; presumably, the litigation was pursued in the hope of generating
collateral grounds ‘to vattack the capital
convictions.) BS
As a preliminary aside, the increasing
frequency with whieli this Court has seen
FCDO involvement ‘in Pennsylvania state
court capital matters of course was already
suspicious, Moreover, it became difficult
to ignore the FCDO’s abusive litigation
tactics in individual casas. See Spotz, 18
ASd at 840-42, 844-45, 348 (Castille, C.J.
coneurring, joined by McCaffery, J.) (discussing, inter alia, Commonwealth v, Abdul-Salawm, 606 Pa, 214, 996 A2d 482
(2010); Commonwealth 'v. Bracey, 604 Pa.
469, 986 A2d 128 (2009); and Commonwealth v. Banks, Nos. 461, 505 and 578
CAP (series of per curiam orders in response to FCDO delays’ and obstruction).
But, I admit that [had little idea just how
pervasive the FCDO presence, and the
consequent potential for its litigation abus-
ca, had become. It is starkly apparent,
from the FCDO’s. chart and my own re-
APPENDIX 018
876 Pa.
view of Pennsylvania capital cases, that a
- group of federally-financed “private” lawyers has managed to insinuate themselves
into virtually every Pennsylvania capital
case where they can manage the intrusion.
Indeed, the FCDO has proven adept at
inserting itself into cases even where the
defendant has made clear that he does not
want FCDO assistance, or to further the
FCDO agenda, And, as my discussion below demonstrates, the FCDO's effective
self-appointment aa a sort of statewide defender in capital PCRA matters has been
achieved without the input, much less the
approval, of any relevant Pennsylvania au-
thority. The propriety of the unapproved"
arrangement is beyond dubious, given the
FCDO's demonstrated obstructionist private agenda,
The FCDO chart identifies 28 cases.
from the complement of 108 where FCDO
involvement resulted from simply entering
its appearance, without appointment or anthorization by any court, state or federal.
To be lawful, the FCDO's activity in all 28
of these cases must be supported solely by
nonfederal funds.
The FCDO chart lists another 63
cases—including this one—as instances
where its involvement is by “entry of ap-"
pearance and appointed by federal court.”
Attorney Skipper does not explain the conjunetive notation. He also does not identify which—if any—of these federal court
appointments authorized the FCDO to use
federal grant funds to litigate PCRA petitions in state court. The specifies of the
6. In 3 of these 28 cases, the FCDO states that
it was appointed by the federal court in an
unrelated noncapita! case.
7. The FCDO identifies 7 additional cases
where it was appointed by a Pennsylvania
trial court, including one as standby counsel,
In 3 of the 7 cases, the FCDO states that it
was also appointed by a federal court; in a
fourth case, the FCDO states that it was ap-
938 ATLANTIC REPORTER, 3d SERIES —
appointment orders, and the federal habeas status of the cases, would determine
whether the activity was authorized and
whether federal grant money properly
may be employed.
Attorney Skipper does not specifically
address whether the FCDO's pursuit of
appellant’s PCRA petition and appeal was
supported exclusively by:nonfederal funds.
FCDO attorneys here identified themselves exclusively. by reference to the
FCDO; no suggastion-was made that they
were appearing in. a: private “volunteer”
capacity, for example, as part of the Philadelphia Defender Association’s ‘Capital
Representation Project ” As I explained
in my Concurring Opinion, the FCDO’s
commitment of resources in this case was
vast, including the- deployment of half a
dozen FCDO lawyers, numerous experts,
investigators, paralegals, ete, in the PCRA
court. That commitment of resources was
followed by the FCDO’s lengthy and abu. -
siye brief in this Court, which was filed
only after significant delays occasioned by
multiple extension requests detailing the
enormity of the FCDO's task, and only
after flouting this Court’s briefing rules.
Notably, in the ‘extension requests,
FCDO Attorney Robert Dunham, Esquire,
also made reference to his other capital
ease responsibilities as an FCDO lawyer,
drawing no distinction’ between court-authorized litigation and“appearances pursuant to the FCDO’s private agenda.
Among the responsibilities related was Attorney Dunham's preparation of an amicus
pointed as counsel for-a-next friend. Respecting the 3 cases where-the FCDO says there
was a concurrent federal court appointment,
presumably the federal court did not unlawfully appoint the 'FCDO: to pursue an initial
FCRA petition in advance of habeas review.
See discussion infra. Thus, in all seven of
these cases as well, the FCDO cannot divert
federal funds to pursue its private agenda.
APPENDIX 019
COM, v, SPOTZ
Pa 877
Cite as 99 Aad 866 (Pa, 2014)
curiae brief on behalf of the Government
of Mexico in support of a Pennsylvania
capital defendant. See Commonwealth v.
Padilla, 667 CAP, later decision reported
at — Pa, ——, 80 A.Sd 1238 (2018), cert,
denied, — U.S, ——, 184 S.Ct, 2725, —
L.Ed2d — (2014). Presumably, the
FODO's provision of lawyering services on
behalf of foreign nations to support their
citizens who commit capital murders in
Pennsylvania is supported by its private
funding stream or by the Mexican government. Also, presumably, the AO was
aware of and approved of this “nonfederal
fund” activity, which caused delays in other Pennsylvania capital cases the FCDO
pursued strictly as part of its private agenda.
Notably, the Padilla case is not listed on
Attorney Skipper's chart of cases where
the FCDO was involved. That is because,
not coincidentally, Attorney Dunham withdrew his appearance in Padilla the very
day before Attorney Skipper filed the Verified Statement. Attorney Dunham's
praecipe in Padilla simply stated: “Kindly
withdraw my previously entered appearance as counsel of record for Amicus Curiae, the United Mexican States, in the
above-captioned matter and substitute
Mare Bookman, who haa entered his appearance on this date, as counsel of record
for the United Mexican States.” No ex-
planation is given for the substitution or-
its timing; perhaps the Padilla case was
one of the (umidentified) cases where the
FCDO’s allocation of costs was “not in full
compliance with administrative rules and
regulations.” Attorney Bookman’s entry
of appearance for Mexico identifies him as
affiliated with the “Atlantic Center for
Capital Representation.” The website for
the ACCR notes that, in fact, “Prior to
becoming the Director of ACCR, Mare
Bookman was a public defender for 27
years and worked in the Homicide Unit of
the Defender Association of Philadelphia
since its inception in 1998.” The FCDO, of
course, operates under the umbrella of the
Defender Association of Philadelphia,
which apparently is the ultimate mastermind of this overall-capital case agenda.
What is most troubling is that, although
Attorney Skipper does not state the fact
directly, the necessary: implication of the
averments in the Verified “Statement is
that federal tax dollars in fact financed the
FCDO's extensive and” abusive litigation
activities in this case, The Court’s Octoher 8, 2011 per cwriam order stated that,
“In light of Attorney Skipper's citation to
18 U.S.C. § 8006A(c) in support of his
claim that the FCDO’s representation of
Pennsylvania capital defendants in state
post-conviction proceedings is lawful, Attorney Skipper is also directed to produce
a copy of the federal court order appointing the FCDO to represent Appellant, to
which the FCDO’s activities in Pennsylvania state court in thia case are ‘ancillary.’”
Attorney Skipper’s response does not state
that the FCDO’s activities here were supported solely by the. FCDO’s private resources, and were not authorized federal
expenditures ancillary, to a federal court
appointment. Instead, Attorney Skipper
advised that he was complying with our
directive by attaching the relevant “federal
court appointment orders.”
The two attached orders, however, reveal that the FCDO was never authorized
to prosecute appellant's PCRA petition
and appeal with federal funds, as ancillary
to its appointment for federal habeas purposes, The orders were issued by the
Honorable James M. Munley of the U.S,
District Court for the Middle District of
Pennsylvania. The first order, dated April
12, 2002, appointed the FCDO in connection with a stay of execution and directed
the FCDO to file's federal habeas corpus
petition within 120 days, The second order, dated May 10, 2006, was in connection
APPENDIX 020
878 Pa.
with a second stay of execution; the order
appointed the FCDO “to represent Petitioner in his to-be-filed habeas corpus petition,” and the order directed that the petition be filed within 180 days, Neither
order authorized the FCDO to litigate an
initial PCRA petition on appellant’s behalf,
much less to da so by using federal funds.
On November 27, 2002, Judge Munley denied the FCDO request to hold appellant's
federal habecs proceedings in abeyance
while the FCDO pursued PCRA relief;
dismissed the federal habeas petition; and
directed the clerk to close the case.
A week later, on December 4, 2002, the
FCDO filed appellant's PCRA petition, a
276-page “initial” pleading, representing
an extensive prior commitment of FCDO
resources, all without federal court authorization. The representation that the
FCDO'’s PCRA agenda here was authorized as ancillary to Judge Munley’s orders—a vepresentation that conveys that
the litigation was legitimately financed
with federal tax dollars—is contradicted by
the attached orders themselves.
The next question, in the context, of the
FCDO motion claiming that my Coneurring Opinion must be withdrawn because it
was “incorrect” to question whether the
FCD0’s private agenda is supported by a
misuse of federal taxpayer dollars, is
whether the apparent diversion of funds
here was an anomaly among the 63 cases
where the FCDO says its state capital case
activity was by entry of appearance and
federal court appointment. Some of the 68
cases involve serial PCRA petitions, and it
is possible that a federal judge authorized
the FCDO to exhaust a discrete new claim
in a serial PCRA petition, pursuant to-
footnote 7 of Harbison v. Bell. The FCDO
does not identify which of the 68 cases
involve serial PCRA petitions and which, if
any, involve specific federal court authorization to litigate a serial PCRA petition.
99 ATLANTIC REPORTER, 3d SERIES
In fact, my review reveals that 50 of the
cases involve initial PCRA petitions, and
at least 8 of the 18 remaining cases, which
appear to be serial PCRA matters, involve
defendants the FCDO previously represented, or attempted to represent, in first
PCRA petitions (Commonwealth v. Hmanuel Lester aka Ali; Conumonwealth v. Antoine Ligons; and Commonwealth v. Ronald Puksor)}. Thus, at least 53 of these 63
eases involve FCDO litigation of initial
PORA petitions in advance of federal habeas review. Given the federal statutory
scheme and Harbison v, Bell—as the
FCDO’s pleading here itself describes
those restrictions—the FCDO’s pursuit of
its private agenda in the 53 cases cannot
lawfully be supported by the diversion of a
penny of federal funds,
But, the PCDO’s averments concerning
its authorization in this-case suggest that it
in fact has routinely’ diverted significant
federal resources {o\ support its private
agenda, Again, the FCDO did not respond to this Court's order by claiming
that its PCRA activities here were supported solely by its private funds Instead,
the FCDO represents—incorrectly—that
its abusive activities were “authorized” as
“ancillary” to a federal court appointment.
The 53 first-PCRA petition capital cases
identified hy the FCDO no doubt present
like circumstances, ie, the FCDO federal
appointment was to file a federal habeas
petition, with no authorization to improperly use federal tax dollars to pursue initial
PCRA petitions in state courts, In short,
the Verified “Statement has neither
claimed, nor documentéd, that the FCDO’s
actual litigation of these capital PCRA
matters was supported solely by private
funds. “
While these ancillary matters have been
pending, the Court has'directed the FCDO
to produce its federal court orders of appointment in a number of capital PCRA
APPENDIX 021
COM. v. SPOTZ
Pa. 879
Cite as 99 A.3d 966 (Pa, 2014)
matters, including first-PCRA petition
cases the FCDO chart identifies as instances where it is acting pursuant to federal court appointment. The FCDO responses and/or federal orders produced
{and the motions generating the orders)
corroborate that either no such order exists, or if there is an appointment order,
the appointment is for federal habeas lit!-
gation only, and not for litigation of PCRA
petitions, E.g., Commonwealth v. Johnson, 582 CAP; Commonwealth v, Mitchell,
617 CAP; Commonwealth v. Tharp, 687
CAP; Commonwealth v, Davido, 688 CAP;
Commonwealth v. Montalvo, 639 CAP;
Commonwealth v. Powell, 641 CAP. See
also Commonwealth v. Sepulveda, 618 Pa.
262, 65 A.3d 1108, 1151 (2012) (noting that
FCDO was appointed by federal court only
to prepare federal habeas petition)?
The federal PACER system confirms
that FCDO appointments in Pennsylvania
capital cases typically follow the plain congressional restriction and the aven plainer
holding in Harbison v. Bell, in that they
are for purposes of federal habeas litigation only; the orders, like Judge Munley’s,
do not authorize the FCDO to litigate
PORA petitions using federal grant funds.
Eg. Commonwealth v. Busanet, 628 CAP
8. In one case, Tharp, the district court declared that "[eJounsel is directed to forthwith
exhaust all of Petitioner’s claims in the appropriate state courts of Pennsylvania." Tharp v.
Beard et al, Civil Action No, 04-1284
(W.D.Pa.) (order dated April 14, 2005). The
appointment order, however, was still only
for purposes of filing a federal habeas petltion, and the court's later dismissal of the
habeas action without prejudice stated that
the dismissal rendered the prior order (including the FCDO appointment) “null and of
no further force and effect.” The order produced in Commonwealth v. Solano, 647 & 648
CAP, granted the FCDO's motion to stay federal habeas proceedings to permit state court
exhaustion, and directed counsel to exhaust
claims. But, this arder likewise did not authorize the FCDO to misuse federal funds, in
order to exhaust claims.
(federal appointment order entered
1/20/2004); Commonwealth v. Walker, 480
CAP (federal appointment order entered
3/8/2011—notably while Walker's PCRA
appeal, litigated by four FCDO lawyers,
was pending in state court; in appointing
FCDO, court notes FCDO’s rapresentation
that its lawyers “have represented Petitioner for many years”). The appointment order the FCDO' produced in another
case, Commonwealth v. Weiss, 655 CAP, is
not an appointment order at. all, but an
order staying federal habeas review pending exhaustion of state remedies.!°
The federal court appointment, orders in
Mitchell and Davide are accompanied by
an FCDO acknowledgment that it was appointed only for federal habeas, and not to
pursue a PCRA petition, The FCDO in
each case then nates that it entered its
PCRA appearance pursuant to its private
agenda: “[aJs part of a nonprofit organization providing defender services, the
FCDO may provide a broader array of
defender services than those authorized by
a federal appointment-as:the FCDO’s resources permit.” Accord Commonwealth
v, Terrance Williams, 678, 668, and 669
CAP." This general statement does not
9. See Commonwealth v..Walker, 613 Pa, 601,
36 A.3d 1, 18 n, 2 (2011) (Castille, C.J, concurring) (noting FCDO involvement),
10, The Weiss order: states that the “Petitioner" (not the FCDO, even assuming a prior
order appointed the FCDO) was to file in state
court to exhaust his claims. The order did
not appoint the FCDO or authorize it ta misuse federal funds to litigate the PCRA petition.
Weiss v. Beard et al., Civil Action No. 02-1566
(W.D, Pa.) (order dated 5/13/03).
11, The Terrance Williams case does not appear on Attorney Skipper’s list of cases, as the
most recent round of FCDO filings there postdate the submission of the Verified Statement.
The case is notable because the FCDO's cur
rent federal court appointment, by the Honorable Michael M, Baylson, was only for pur-
“ APPENDIX 022
880 Pa.
specifically claim that those “yesources”
derive strictly from the FCDO’s private
funding—although that is certairily the impression conveyed by the reference to the
FCDO’s nonprofit status, and its ability to
provide a “broader array” of services than
those actually authorized by Congress.
Notably, this “broader array” position is
in tension with Attorney Skipper’s stance
in this case—where the question of the
FCDO's authority is directly at issue, and
the Chief Defender entered his appearance
80 as to provide an “office-wide response.”
Attorney Skipper has stated that the
FCDO's extensive PCRA litigation activities here were “ancillary” to a federal
court order that, in fact, did not appoint or
authorize the FCDO to conduct any ancillary activities, much less to redirect federal grant funds. Although the FCDO's
overall position is elusive and inconsistent,
its core position, and its actual conduct,
suggests its belief that it is free to redirect
federal tax dollars to its private state court
agenda whenever it has, or anticipates, a
federal court appointment for purposes of
federal habeas review. That position,
which would apply to all 53 cases in this
class, contradicts what the FCDO has admitted are the plain limitations in the federal statutory scheme and Harbison v.
Bell. ‘
It may be that Attorney Skipper, like
former FCDO Attorney Wiseman, has
made an error; that he realizes that the
PCRA litigation in this case could not
properly be supported with federal funds;
that he further realizes that all 53 of the
identified frst petition capital PCRA matters involving federal court “appointments” can only be privately funded; and
that he meant to convey that, in fact, the
FCDO’s private activities and agenda in
poses of preparing a state clemency petition,
Williams v. Beard et al, Civil Action No,
2005-3486 (E.D.Pa.) {order entered
99 ATLANTIC REPORTER, 8d SERIES
every first petition capital PORA matter
have been funded exclusively with private
resources. But, that is not what he has
represented in his Verified Statement;
and presumably, he did not so represent
because he cannot truthfully state that it is
80. :
Obviously, even “aside from Attorney
Skipper's averments, it is highly unlikely ©
that the FCDO has subsidized its massive
private agenda in capital PCRA cases with
purely private funds. It has been reported that the FCDO operates under a federal grant of some $16-17 million per year.
It is difficult to believe that the FCDO has
an annual private funding stream anywhere near that size, or indeed a funding
stream sufficient to support the extensive
litigation in this case alone, By the
FCDO's own reckoning, it would need private resources sufficient to litigate the
other 62 first PCRA matters in which it
was involved by appearance and supposed
federal court “appointment,” the 28 matters where it simply entered an appearance, the 7 additional dises where appointments were made by .state court judges,
ita shadow assistance in the “fruits of its
labor” cases, and its activities on behalf of
foreign governments in support of their
citizens who commit murder in Pennsylvania. And, when the FCDO enters a case,
it deploys teams of investigators, parale- -
gals, lawyers and experts, and reams of
paper, pleadings, amendments, etc, Notably, on May 15, 2011,’ immediately after
the Court’s decision in this appeal, the
Philadelphia Inquirer reported that David
Rudovsky, Esquire, the President of the
Philadelphia Defender’ Association, which
oversees the FCDO, took the same position Attorney Skipper initially did in his
‘Withdrawal pleading: ie, that the FCDO
9/24/2012), Nevertheless, the FCDO proceeded to file a serial PCRA petition, which is
currently on appeal to this Court.
APPENDIX 023
COM. v. SPOTZ
Cite ax 99 A.gd 866 (Pa, 2014)
diverts federal grant money to support
most. of its work in capital PCRA litigation, claiming that federal law allows the
diversion in advance of federal habeas review, so as to exhaust claims. The same
article indicated that the FCDO's private
funding stream was a modest $130,000.
Asked for an explanation of authorization following Attorney Wiseman’s allegation, however, the FCDO has now acknowledged that it may lawfully use
federal grant funds to support state
capital litigation only when specifically
approved by a federal judge, and that
power exists in a federal judge only on
matters ancillary or subsequent to appointment to pursue federal habeas cor
pus petitions, The statutory authority
cited by both parties here, as well as
the decision in Harbison v. Bell, corroborates that these in fact are the control~
ling congressional restrictions on the use
of federal funds, There is, in short, a
disconnection between what the FCDO
properly can do with its federal funding,
as federal law provides plain as day and
the FCDO itself understands it, and
what the FCDO actually has done and
continues to do with that funding in
pursuit of ita private agenda, as the
FCDO tells it. In this case and all
cases where the FCDO’s capital PCRA
litigation activities were not approved by
a federal court in a federal habeas pro- ”
ceeding to which the PCRA litigation
was properly ancillary or subsequent—
and no first PCRA petition can so qualify—any diversion of federal money to
12. I recognize that a reported interview with
an FCDO director is hardly definitive evidence; I cite the reference because it squares
with one of the FCDO’s (admittedly changing)
positions here, and because, in subsequent
proceedings in Pennsylvania state cases, the
FCDO has refused to explain its actual funding and deployment of federal resources, and
has removed those inquiries to federal court.
Pa, 881
finance the FCDO's , private agenda
would appear to violate fedeyal law.
While these Motions have been pending,
the FCDO has been given multiple additional opportunities ta discharge ita duty of
candor to Pennsylvania courts concerning
the propriety of its extensive private capital case agenda, by which it has secretly
managed to assume a monopoly role in
capital PORA defense. As I explain below, the organization ultimately has refused to do so, The organization's stance
reflects its core political orientation: it
insinuates itself into the role of de facto
statewide defender, in capital cases, claiming to this Court that it’ is acting solely as
a privately-funded eritity which need not
answer to any Pennsylvania authority, and
then claims, when put to the proof, that it
is effectively a “federal: officer” and cannot
he asked for an accounting: The FCDO's
contemptuous responses also shed light
upon the instant. Motions, and in particular, the FCDO's shifting accounts of its
activity, authority, and- funding, See discussion at subsection (5), infra,
2. FCDO Response to Commonwealth's
Request for a Rule to Show Cause
The Court's order of October 3, 2011,
quoted earlier, sets forth the Commonwaalth’s position on ita request for a rule
to show cause why the FCDO should not
be held in gontempt, for its non-compliance
with the order of July 28. Attorney Skipper responds by: stating that the FCDO's
decision not to comply but instead to file
its “Withdrawal” pleading was reasonable
See discussion of Commonwealth v. Mitchell,
617 CAP, infra.
43. A second FCDO chart lists another 21
Pennsylvania capital cases where it is currently providing consultation services. These services likewise must be supported by purely
private funding,
ve APPENDIX 024
882 Pa
and made in good faith, and was not in
contempt of this Court. I will discuss
These pleadings, as necessary, infra.
3. Further Pleadings
The Commonwealth responded to the
FCDO’s Verified Statement with a Request for: Leave to file a Response, to
explain why the Verified Statement is nonresponsive, The Commonwealth also filed
a Response to the FCDO’s Answer to the
Motion for Sanctions. Counsel with the
law firm Pepper Hamilton LLP then entered an appearance as counsel for the
FCDO and Attorney Skipper, and on November 29, 2011, filed: (1) a Motion to
Strike the Commonwealth's Response to
the Answer to the Motion for Sanctions;
and (2) a Reply to the Commonwealth's
Request for Leave ta Respond to the Verified Statement. None of these pleadings
axe necessary to a proper decision of the
primary matters; accordingly, I will deny
the Commonwealth’s request for leave to
respond to the Verified Statement, and I
will not consider its response to the FCDO
Answer to the Motion for Sanctions. Nor
will I consider the FCDO’s two responsive
pleadings. Finally, I will not burden the
Court with a referral of these tangential
motions.
4, Tangential Matter at 187 EM 2011,
removed to federal court by FCDO
A further complication arose in November of 2011, when the District Attorney of
Philadelphia County filed a petition seeking exercise of the Court’s King’s Bench
jurisdiction to more broadly consider the
propriety of the FODO’s activities in Pennsylvania state courts, See In Re: Appear
ance of Federal FCDO In State Criminal
Proceedings, 157 EM 2011. The Petition
alleged that the FCDO’s appearances in
Pennsylvania capital proceedings were illegal; that the Court should enforce federal
law as well as ita exclusive power to supervise the practice of law and the conduct of
99 ATLANTIC REPORTER, 3d SERIES.
the courts in the Unified Judicial System;
and that the Court should bar the FCDO
from participation in’ state criminal proceedings, except where the FCDO has specifically been authorized to so litigate by a
federal court order, The pleading included an extensive discussion of federal law,
and offered examples af. FCDO conduct in
Pennsylvania cases that, the District Attorney claimed, corroborated the concerns
with the FCDO agenda that were addressed in my Concurring Opinion. The
FCDO requested and was granted an extension of time to respond, noting it had
retained outside counsel.
Rather than provide:'the response, on
December 8, 2011, the FCDO filed a single-paragraph “Notice of Filing of Notice
of Removal,” relating that the FCDO that
day had removed the King’s Bench matter
to the U.S. District Court for the Eastern
District of Pennsylvania. The attached
federal notice declared that the Commonwealth’s petition “asserts claims against
{the FCDO] based on-and arising under
federal law.” The federal notice did net
acknowledge the Commonwealth's supervisory state law issue involving the practice
of law. See us .
Although neither party contemporaneously informed the Court of the development, on December 14;:2011, the Commonwealth filed a notice of‘dismissal in federal
district court per Rule 41(a)(1)(A)(i) of the
Federal Rules of Civil Procedure, and the
removed federal matter-is listed as “terminated.” As a result, the Supreme Court
Prothonotary administratively closed the
King's Bench matter listed at 157 EM
2011.
5. Tangential. Matters: additional
cases involving. propriety of FCDO
appearances, removed to federal
court by the FCDO
The Philadelphia District Attorney more
yecently challenged the propriety of the
APPENDIX 025
: COM. v. SPOTZ
Pa, 883
Cite as 99 Aad 866 (Pa, 2014)
FCDO's appearance in a specific capital
PCRA appeal, Commonwealth v. Mitchell,
617 CAP. The District Attorney filed a
Motion to Remove Federal Counsel on
grounds that the FCDO’s activities were
not authorized by federal court order. As
in 157 BM 2011, the Commonwealth avgued that this Court had jurisdictian, had
the obligation to enforce federal legislative
restrictions on the FCDO, and had separate supervisory authority to determine
who may properly appear as counsel in
Pennsylvania proceedings.
The FCDO responded, in relevant part,
that nothing prevented it from doing more
than authorized by a federal court appointment, so long as federal funds were not
employed, According to the FCDO, federal law “does not prohibit an attorney
from engaging in activities.on behalf of a
client that fall outside {the governing federal statute] and-are not compensable with
federal funds.” The FCDO added that it
had “non-federal resources” to support its |
nontederal activities, noting that the Defender Association of Philadelphia had established the “Pennsylvania Capital Representation Project,” which “receives private
grant funds and contributions to support
FCDO activities the federal sustaining
grant cannot fund” The FCDO added
that the AO is aware of its activities in
state court “and the fact that they are
supported through non-federal resources.”
Answer, 124-30. ,
In light of these representations, on January 10, 2018, this Court remanded Mitchell to the PCRA court for a determination
_ of whether the FCDO could properly continue in the appeal. The per curiam order
provided, in relevant part, as follows:
[T]he matter is REMANDED to the
PGRA court to determine whether current counsel, the [FCDO] may represent
appellant in this state capital PCRA proceeding, or whether other appropriate
post-conviction counsel should be appointed. In this regard, the PCRA
court must first determine whether the
FCDO used any federal grant monies to
support its activities:in state court in
this case. If the FCDO cannot demonstrate that its actions here were all privately financed, and -convineingly attest
that this will remain the case going forward, it is to be removed. If the PCRA
court determines that the actions were
privately financed, it should then determine “after a colloquy on the record,
that the defendant has engaged counsel
who has entered, or will promptly enter,
an appearance for the collateral review
proceedings,” See. Pa.R.Crim.P.
904(H)(1)(c). We note that the order of
appointment produced by the FCDO, isaued by the U.S, District Court for the
Eastern District of Pennsylvania at No.
2:11-cv-02068-MAM,"‘and dated April
15, 2011, appointed the FCDO to represont appellant only for purposes of litigating his civil. federal habeas corpus
action, and the authority of the FCDO to
participate in this state eapital proceeding is not clear....See 18 U.S.C,
§ 3599(a)(2) (authorizing appointment of
counsel to indigent. state defendants actively pursuing federal habeas corpus
relief from death sentence).
Order, 1/10/18. Justice Todd filed a Dissenting Statement, which waa jained by
Justice Baer.
The remand should’ have been a simple
matter: officers of the Court, operating
under an ethical duty of candoy, eould
provide the PCRA judge with proof of
what they had alleged. to this Court. Tnstead, after a remand hearing had been
scheduled, on April- 11, 2018, the FCDO,
by its outside counsel, filed’ a Notice of
Filing of Notice of,,Removal with the
April 5, 2018, it had. removed the represen-
APPENDIX 026
884 Pa.
tation question to federal court pursuant to
28 U.S.C, §§ 1442 and 1446(d).
Thereafter, the FCDO removed multiple
other Pennsylvania capital cases to federal
court where similar inquiries into the lawfulness of its state court capital agenda
were being made—thus ensuring delays.in
every one of those matters. See Zn re
Proceedings Before the Court of Common
Pleas of Monroe County, Pa. to Determine
Propriety of State Court Representation
by Defender Ass'n of Phila, Filed in Com.
of Pa. v, Manuel Sepulveda, 2013 WL
44690085, at *1 n. 2 (M.D,Pa, Aug. 16, 2013)
(memorandum by Caputo, J.) (collecting
cases) (hereinafter “In Re FCDO (Sepulveda) I”),
The FCDO never notified this Court of
its removal action in Mitchell, The federal
PACER system reveals three pleadings
filed by the FCDO relating to Mitchell, all
assigned to the Honorable Mary
McLaughlin of the U.S. District Court for
the Eastern District of Pennsylvania, I
will deseribe the pleadings in Mitchell
(which ave representative of the FCDO’s
position in all the removed cases) only as
they are relevant to assessing the FCDO's
account to this Court of the basis, and the
funding, for its extensive private litigation
agenda in Pennsylvania capital cases.
First, under the docket number for the
dormant federal habeas petition held in
abeyance while the FCDO pursued Mitchell’s PCRA petition, the FCDO filed a
“Motion to Reactivate Case in Order to
Enter an Order Directing Petitioner's
Counsel to Exhaust Claims in State
Court.” In short, the FCDO sought retroactive federal authorization for extensive
state court actions it had already undertaken and—according to what it told this
Court—had supported strictly with its
“private” resources. The FCDO related
that, after filing the PCRA appeal now
pending, it began investigating new claims
99 ATLANTIC REPORTER, 3d SERIES
not pursued by PCRA counsel. (In fact,
the brief the FCDO eventually filed in this
Court raises 15 claims, many of which are
new, non-federal claims alleging that
Mitchells PCRA counsel was ineffective.)
The federal pleading stated that the
FCDO conducted this serial PCRA investigation in “reasonable anticipation” of one
day being appointed to serve as Mitchell's
federal habeas counsel, Meanwhile, the
FCDO prepared and filed a federal habeas
petition on March 25, 2011, which included
the new claims it had developed. The
FCDO asked to be appointed to represent
Mitchell on the federal: habeas petition it
had already prepared;. and then asked
that the same petition be held in abeyance.
Both requests were granted. The federal
court, however, never appointed the FCDO
to litigate the PCRA appeal and the new
claims the FCDO had developed.
The FODO then remarkably claimed
that both the Commonwealth’s Motion to
Remove Counsel and this Court's order
“are part of a broader, ongoing effort on
the part of some prosecutors’ offices ...
to deprive capital petitioners” of FCDO
representation. The FCDO noted instances where this Court remanded for determinations of whether the FCDO should be
permitted to remain in a capital case; instances where county prosecutors made
challenges to FCDO appearances; and instances where the Pennsylvania Attorney
General’s Office sought to disqualify it. In
each ease, the FCDO said, it had removed
or will remove those questions to federal
court. an
Turning to its legal argument, the
FCDO claimed that oir remand in Mitch
ell “directs the PCRA. court to take action
against the FCDO that is pre-empted by
federal law.” The FCDO alleged that the
. propriety of its appearance in Mitchell was
not “unclear” merely because it acted without authorization, The FCDO further ar-
APPENDIX 027
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.