Addenda — Castille v. Peoples

Supreme Court, U.S. 7

PILED

) SEP 22 1998

No. 87-1602 JOSEPH F. SPANIOL, JR.

CLERK

—=—

In The

Supreme Court of the United States

October Term, 1988

Ly

Vv

RONALD D. CASTILLE, District Attorney of Philadel-

phia County; THOMAS FULCOMER, Superintendent,

Huntingdon State Correctional Institute; and LEROY

ZIMMERMAN, Attorney General of Pennsylvania,

Petitioners,

Vv

MICHAEL PEOPLES,

Respondent.

ray

Vv

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

>...

Vv

REPLY BRIEF FOR PETITIONER

sy

Vv

GAELE McLavuGHLIn BarTHOLp*®

Deputy District Attorney

ELizaBETH J. CHAMBERS

Assistant District Attorney

Chief, Federal Litigation

LaurRIE Macip

Assistant District Attorney

WiuuraM G. CHapwick, JR.

First Assistant

District Attorney

Ronaup D. CastiIL_e

District Attorney

*Counsel of Record

Office of the District Attorney

1421 Arch Street

Philadelphia, PA 19102

Telephone: (215) 686-5700

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

Page

Table of Authorities il

Supplemental Argument

Because of respondent’s non-compliance with ap-

plicable state procedures, his habeas claims were

not presented to the highest state court in a pos-

ture permitting their review on the merits... 1

Conclusion

i:

TABLE OF AUTHORITIES

Page

FreperaL Cases

Anderson v. Harless, 459 U.S. 4 (1982) 12

Brown v. Allen, 344 U.S. 443 (1953) 9

Chaussard v. Fuleomer, 816 F.2d 925 (3d Cir.),

cert. denied, 108 8. Ct. 139 (1987) 2

Duckworth v. Serrano, 454 U.S. 1 (1981)

Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir.

1986) 11

Gornick v. Greer, 819 F.2d 160 (7th Cir. 1987) 0000.)

Moore v. Fulcomer, 609 F. Supp. 171 (E.D. Pa. 1985) 2

Murray v. Carrier, 477 U.S. 478 (1986) .. 4

O’Halloran v. Ryan, 835 F.2d 506 (3d Cir. 1987) 00. 2

Picard v. Connor, 404 U.S. 270 (1971) 5, 11

Pillette v. Foltz, 824 F.2d 494 (6th Cir. 1987) 0. 11

Pitchess v. Davis, 421 U.S. 482 (1975) 7

Ross v. Fuleomer, 610 F. Supp. 560 (E.D. Pa. 1985) 2

Strickland v. Washington, 466 U.S. 668 (1984) 10, 12

Williams v. Armontrout, 679 F. Supp. 916 (W.D.

Mo. 1988) ..... 12

State Cases

Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d

255 (1973) 3

Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272

(1974) 9

Commonwealth v. Cook, 230 Pa. Super. 283, 326

A.2d 461 (1974) . 8,9

ill

TABLE OF AUTHORITIES—Continued

Page

Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d

Ea oo “a

Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d

188 (1966) 9

Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d

LAE 9

Commonwealth v. Smith, 321 Pa. cent 170, 467

A.2d 1307 (1983) . a 8

Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d

569 (1981) or Rea 6 7

Commonwealth v. Turner, 469 Pa. 319, 365 A.2d

Neen ccsssesneonmenensensnvstetnee 7

State Statutes AND RutEs

Pa. Stat. Ann. tit. 17, § 211.202 (Purdon 1978) WW... 7

42 Pa. Cons. Stat. Ann. §§ 721-726 (Purdon 1981)... 7

42 Pa. Cons. Stat. Ann. § 5918 (Purdon 1982)... 3

CE 7

No. 87-1602

In The

Supreme Court of the United States

October Term, 1988

ray

a

RONALD D. CASTILLE, District Attorney of Philadel-

phia County; THOMAS FULCOMER, Superintendent,

Huntingdon State Correctional Institute; and LEROY

ZIMMERMAN, Attorney General of Pennsylvania,

Petitioners,

Vv

MICHAEL PEOPLES,

Respondent.

fy

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ray

Vv

REPLY BRIEF FOR PETITIONER

ray

Vv

SUPPLEMENTAL ARGUMENT

BECAUSE OF RESPONDENT’S NON-COM-

PLIANCE WITH APPLICABLE STATE PRO-

CEDURES, HIS HABEAS CLAIMS WERE NOT

PRESENTED TO THE HIGHEST STATE

COURT IN A POSTURE PERMITTING THEIR

REVIEW ON THE MERITS.

Certiorari was granted in this case to consider wheth-

er the Third Cirecuit’s mere presentation rule, which was

applied instantly, accords with congressional intent em-

bodied in the habeas corpus exhaustion doctrine. Aban-

doning the reasoning of the Third Cireuit panel which

L

decided this case, the precedent on which it relied, and

his own prior arguments, respondent now agrees that the

Third Cireuit rule conflicts with this Court’s precedents

and declines to defend it. Instead, he improperly attempts

to turn the significant issue here presented into a mere

state law question.'

Rather than defending the Third Cireuit rationale,

from which he benefitted, respondent contends before this

Court that the grant of a hearing on the merits of his

petition was proper, notwithstanding the panel’s incorrect

reasoning, because, as a matter of state law, he had com-

plied with all state procedures necessary to permit review

‘Respondent also incorrectly suggests that the mere presen-

tation rule is not really a matter of Third Circuit law but results

from a broad interpretation by petitioner. A reading of Chaus-

sard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, 108 S. Ct.

139 (1987), belies this contention, as does the Third Circuit

opinion in this case which squarely raises the mere presentation

rule for this Court’s consideration.

Respondent relies on O’Halloran v. Ryan, 835 F.2d 506 (3d

Cir. 1987), to support his premise. It, however, was decided

before this case, and cogently points out that there exists a clear

conflict within the Third Circuit regarding the exhaustion doc-

trine. Ross v. Fulcomer, 610 F. Supp. 560 (E.D. Pa. 1985) and

Moore v. Fulcomer, 609 F. Supp. 171 (E.D. Pa. 1985), cited in

petitioner’s principle brief, demonstrate that the mere presenta-

tion rule is regularly applied within the Third Circuit. As a re-

sult, the panel here, although plainly cognizant of respondent's

state court defaults, mechanically ruled that the exhaustion doc-

trine was satisfied simply because it found that respondent's

habeas claims had been presented in some fashion to the state

supreme court.

on the merits of his habeas claims by the state’s highest

court. Respondent’s contention is erroneous.?

Respondent did not comply with the state requirement

that all claims upon which discretionary review is sought

be included in a petition for allowance of appeal; not one

of his habeas claims was included in his counselled peti-

tion for allowance of appeal (allocatur). Because of their

omission from that document, the habeas claims were not

reviewable on the merits, and federal exhaustion require-

ments were not met.

Apparently respondent believes that his pro se peti-

tion, requesting the appointment of counsel, was suffici-

ent to present his habeas claims to the highest state court

for review on the merits. The state court’s treatment of

the document, however, demonstrates that, as a matter

of state practice, it was not. The pro se document merely

2Respondent also incorrectly persists in blending his Bighum

claim with his claim that he was cross-examined in violation

of a state statute. He erroneously refers to these distinct claims

as merely characterizations of the same issue.

The claim of a violation under Commonwealth v. Bighum,

452 Pa. 554, 307 A.2d 255 (1973), challenges whether an ac-

cused’s prior crimen falsi convictions may be used to impeach

him at trial. This issue is quite distinct from error based on

state statute, 42 Pa. Cons. Stat. Ann. §5918 (Purdon 1982),

which governs when the prosecutor is permitted to introduce

such impeachment matter, if, under Bighum, the prior convic-

tions are admissible. A trial court’s ruling permitting the use

of crimen falsi impeachment might be quite correct under

Bighum, but reversible error could still occur if the prosecutor

introduced the impeachment evidence contrary to § 5918. In-

deed, in state court, respondent fully recognized that these

were distinct claims when he alleged the Bighum claim as one

of court error (J.A. 12), but alleged the statutory claim in terms

of prior counsel’s ineffectiveness for failing to raise it below

J.A. 51-52, 65).

+

constituted a successful petition for the appointment of

counsel. The state supreme court, upon its grant of re-

spondent’s request for counsel, permitted him to raise all

of his issues in the counselled allocatur petition which he

was allowed to file. He chose then to raise but two issues,

neither of which were contained in his subsequent habeas

petition.’

Alternatively, respondent argues that, although the

state practice was not followed, for purposes of the comity-

based federal exhaustion rule the pro se document should

be deemed sufficient. Specifically, he contends that since

no state statute, rule or decisional authority required the

state high court to treat his petition as a request for coun-

sel, rather than as a request for discretionary review, the

Pennsylvania Supreme Court’s treatment of his pro se

petition should be afforded no deference by the federal

3The Commonwealth, pursuant to the state supreme court's

usual practice with respect to requests for counsel by pro se

allocatur applicants, declined to address the merits of the pro se

document, pending either disposition of the request for coun-

sel or a court request for a response on the merits (J.A. 60).

The state high court granted the request for counsel and per-

mitted the filing of a counselled allocatur petition (J.A. 61).

When submitted, that petition presented the two issues which

counsel evidently considered to have the most promise. Re-

spondent did not disagree with counsel’s limitation of the is-

sues or urge review of other claims asserted in the prior pro se

pleading. Even had respondent so acted, a decision by the

state high court not to review that pro se filing would have

been proper. The determination of which claims to raise on

appeal is within the province of appellate counsel’s strategic

decisions, and, absent a demonstration of appellate counsel's

ineffectiveness, his decision controls. See, e.g., Murray v. Car-

rier, 477 U.S. 478 (1986). Under state practice, then, the state

high court had but two issues, neither encompassing any of

respondent's habeas claims, upon which to consider the grant

of discretionary review.

5

habeas court. Respondent contends, and the Third Circuit

found, that, for purposes of federal law, the state court

should be presumed to have reviewed the merits of the

pro se document, even though under state practice that

court concededly did not do so. This finding was unwar-

ranted.

The state court’s action was premised on basic con-

siderations of the attorney-client relationship, as reflected

in the decisions of this Court. The fact that such consid-

erations are not codified in any of the ways listed by re-

spondent has no bearing on the legitimacy of the state

court’s action or on the propriety of that action as a basis

for deference by the federal habeas court. Instantly, the

state supreme court’s “opportunity” for review was lim-

ited to those claims presented in the counselled petition,

and the Third Circuit’s contrary conclusion must be re-

versed. Any other result abrogates the judicial prohibition

against sua sponte consideration of issues not offered by

the parties, see e.g., Picard v. Connor, 404 U.S. 270, 277

(1971), and ill-serves the interests of comity.

Further, even if the pro se petition were to be con-

sidered in determining compliance with the exhaustion

requirement, respondent’s exhaustion argument still fails.

Respondent contends that each of his habeas claims was

raised, either in the pro se or the counselled petition, as

a properly layered claim of the ineffectiveness of counsel.

He wrongly concludes, however, that, by raising layered

claims of ineffectiveness, he thereby satisfied federal ex-

haustion requirements as to his habeas claims.’

‘The pro se document was somewhat ambiguously drawn

and was capable of different interpretations. Reading the docu-

(Continued on following page)

First, as noted in petitioner’s principle brief, not all

of respondent’s habeas claims were properly layered in

state court. Specifically, the due process and equal pro-

tection violations, based on a denial of respondent’s state

law right to a bench trial, were not preserved by alleging

Superior Court counsel’s failure to raise and preserve

the claims. Such an allegation was essential since the

claims were omitted in respondent’s Superior Court ap-

peal (see Brief for Petitioner at 13). Similarly, respon-

dent’s habeas challenge to trial counsel’s ineffectiveness

for failing to litigate the second stop of respondent by

police and the related seizure of evidence, was not as-

serted at the first available opportunity, as required by

state law, i.e., when new counsel assumed representation

at the Superior Court level. The counselled allocatur peti-

tion did allege Superior Court counsel’s ineffectiveness,

but only ineffectiveness for not challenging the correc’

ness of the trial court’s physical evidence suppression rui-

ing. That claim did not preserve a challenge to trial coun-

(Continued fror: previous page)

ment in a light it deemed to be most favorable to respondent,

the Third Circuit panel concluded that respondent's habeas

claims were substantively alleged therein. Based on that find-

ing, the panel deemed the exhaustion rule satisfied, notwith-

standing the procedural defaults that it found had occurred in

the lower courts (J.A. 96-97).

Conceding that the exhaustion principle relied upon by the

panel is erroneous, respondent now reinterprets the pro se

document. He does not allege that it substantively raised his

habeas claims, but rather alleges that claims not otherwise prop-

erly preserved as a matter of state court practice and procedure

could be substantively considered because they were raised

by layered ineffectiveness claims. As discussed more fully infra,

—* reinterpretation is unavailing and provides no basis

or relief.

7

sel’s performance with respect to the suppression hearing

(see Brief for Petitioner at 14-15).

Even if the ineffectiveness claims had been properly

layered, however, their review on the merits by the Penn-

sylvania Supreme Court was precluded for several rea-

sons. In contending otherwise, respondent relies primarily

on Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847

(1976), a case in which the Pennsylvania Supreme Court

heard an appeal as of right in a felonious homicide cese.°

The posture of respondent’s case was significantly differ-

ent. He attempted to place claims—as to which there were

no substantiating records and as to which there had been

no prior rulings on the merits—before the state supreme

court by way of a petition for allowance of appeal. Such

petitions are granted only when they present issues of gen-

eral importance that transcend their legal correctness with

respect to the particular case on appeal. See Pa. R. App.

P. 1114. As denials of such petitions are not rulings on

the merits of the claims contained therein, see Common-

wealth v. Tarver, 493 Pa: 320, 331, 426 A.2d 569, 575

(1981), rejection of respondent’s allocatur petition, raising

previously undecided claims, which lacked underlying sub-

stantiating records, was legally insignificant for exhaus-

tion purposes. See Pitchess v. Davis, 421 U.S. 482 (1975).

A ruling on the merits of those claims, however, remains

available to respondent by proceeding in the state collat-

eral review forum. Thus, respondent’s failure to follow

this state procedure to obtain review on the merits of his

‘That court no longer has such expansive direct appellate

jurisdiction, and is now primarily an allocatur court. Compare

42 Pa. Cons. Stat. Ann. §§ 721-726 (Purdon 1981), with former

Pa. Stat. Ann. tit. 17, § 211.202 (Purdon 1978).

8

claims is fatal to his claim that he exhausted state

remedies.

Equally erroneous is respondent’s suggestion that the

state supreme court’s decision not to remand the layered

ineffectiveness claims to the trial court for development

of a factual record means that the issue was resolved -

somehow for exhaustion purposes. The effect of the state

smpreme court’s dismissal was to open the state post-

conviction remedy to respondent for development of a

factual record. State law contemplates use of the collatera!

remedy for precisely this purpose. See Commonwealth v.

Dancer, 460 Pa. 95, 100, 331 A.2d 435, 488 (1975) (“claims

of the ineffectiveness of counsel may only be raised in

PCHA [Post Conviction Hearing Act] proceedings .. .

where the petitioner is represented on direct appeal by

new counsel, but the grounds upon which the claim of

ineffective assistance are based do not appear in the trial

record”); Commonwealth v. Smith, 321 Pa. Super. 170,

207, 467 A.2d 1307, 1326 (1983) (rehearing granted as to

defendants other than Smith) (although the belated rais-

ing by counsel of his own ineffectiveness waived the issue

for purposes of direct appeal, “we observe that Appellant

Smith is not foreclosed from having this claim heard on

collateral attack”) ; Commonwealth v. Cook, 230 Pa. Super.

283, 284, 326 A.2d 461 (1974) (“In the absence of clear and

irrefutable on-the-record proof that counsel was ineffee-

tive, we cannot decide an ineffective assistance of counsel

claim on direct appeal. Rather, in such circumstances, we

will wait until an evidentiary hearing has been held upon

9

an appropriate request for relief under the Post Convic-

tion Hearing Act.’).®

Use of the state collateral review court, rather than

the state trial court, for documentation of a litigant’s in-

effectiveness claim(s), is irrelevant for federal habeas

exhaustion purposes. A determination as to which route

must be followed, since it involves a matter of state prac-

tice and procedure, is an appropriate state court decision.

In either case, the litigant has the opportunity to obtain

the necessary factual findings and the subsequent lower

court judgment would be subject to appellate review.

Comity, therefore, requires that federal habeas review here

be deferred pending the outcome of state collateral review

litigation. See Duckworth v. Serrano, 454 U.S. 1 (1981)

(eireumvention of the exhaustion of remedies doctrine is

not permitted unless there is no opportunity for redress

in the state court).’

6Respondent bottoms his claim in part on Commonwealth

v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), although the doc-

trine of basic and fundamental error on which it relied was

expressly rejected by the Pennsylvania Supreme Court in Com-

monwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), and Com-

monwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975). More-

over, he incorrectly asserts that Commonwealth v. Cook has

been overruled and cites no authority as support. To the con-

trary, its disposition is fully contemplated by state law.

7The circumstances of this case are entirely distinct from

those considered in Brown v. Allen, 344 U.S. 443 (1953). There,

this Court decided that it is unnecessary to resort to a state’s

collateral remedy where issues have been decided on direct

appeal. Here, because the ineffectiveness claim is raised for the

first time in a request for discretionary review, the state fact-

finding court has been bypassed. Resort to the state collateral

aalb for the omitted factual determinations does not involve

the kind of duplicative state review at issue in Brown. Thus, it

is not governed by that decision.

10

Nor is the denial of relief compelled on state law

grounds alone. Even if the layering of the ineffectiveness

claims to the state high court was sufficient under Penn-

sylvania law for those claims to be reviewed on the merits,

and even if respondent had properly layered all of his in-

effectiveness claims, he still has not satisfied exhaustion

requirements for his habeas claims. Under respondent’s

reasoning, he has exhausted five particular sixth amend-

ment claims of the ineffectiveness of counsel. These are

not, however, the claims which were raised in his federal

habeas petition.

In that petition, respondent presented three substan-

tive issues: (1) an alleged violation of a state statute pro-

hibiting cross-examination of a defendant about his prior

criminal convictions (J.A. 73); (2) deprivation of respon-

dent’s putative right to a non-jury trial (J.A. 74); (3) the

admission of suggestive and tainted identification evidence

(J.A. 74). Respondent alleged that these constituted viola-

tions of his due process and/or equal protection rights. He

made no reference to any ineffectiveness of counsel claims

or sixth amendment violations which are more difficult to

establish. See Strickland v. Washington, 466 U.S. 668

(1984.) His two remaining habeas claims referred only to

the ineffectiveness of trial counsel in failing to seek sup-

pression of certain evidence and failing to object to unre-

lated crimes evidence (J.A. 74-75). These claims were not

properly layered; they did not properly raise any sixth

amendment violations as they failed to contain any allega-

tion of appellate counsel’s ineffectiveness for not then

presenting these claims in state court.

Sixth amendment counsel ineffectiveness and four-

teenth amendment due process and/or equal protection

11

violation are plainly distinct. They employ and involve

different amendments, rights, legal principles and case

law. Allegation of the same facts in state and federal

courts will not satisfy exhaustion requirements where, as

here, the theories presented in each forum are distinct.

See, e.g., Picard v. Connor, 404 U.S. 270 (1971) (although

based on the same facts, claimed violation of fifth amend-

ment grand jury requirement neither presented nor ex-

hausted claim of violation of fifth amendment equal pro-

tection clause). Nor will the allegation of the same legal

theory, but based on different facts, suffice for exhaus-

tion purposes. See also Pillette v. Foltz, 824 F.2d 494

(6th Cir. 1987) (no exhaustion when different reasons for

ineffectiveness presented in state and federal courts) ;

Gornick v. Greer, 819 F.2d 160 (7th Cir. 1987) (same);

Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir. 1986)

(same). Respondent treats his allegations of ineffective-

ness in state court as mere verbiage used to skirt around

the law on waiver and exhaustion, which may simply be

discarded upon reaching federal court. He fails to ree-

ognize that, even under his own reasoning, the layered

claims of ineffectiveness are the only claims preserved.

To assert as respondent does that a claim of inef-

fectiveness of counsel grounded in the sixth amendment

is the same as a claim concerning the underlying basis of

the ineffectiveness claim and grounded in the fourth, fifth,

or any other amendment, is to strip the notion of “sub-

stantial equivalence” of any meaning.’ A state court faced

SEqually erroneous is respondent's attempt to convert his

sixth amendment claims asserted in state court into the sub-

(Continued on following page)

12

with an ineffectiveness claim is given the opportunity to

grant or deny relief based only on principles of counsel

ineffectiveness, not on other constitutional principles sur-

rounding the underlying claim. The presentation of a

particular complaint in state court merely as a basis for

the ineffectiveness of counsel cannot “provide the state

courts with a ‘fair opportunity’ to apply controlling legal

principles to the facts bearing upon his” particular com-

plaint. See Anderson v. Harless, 459 U.S. 4, 6 (1982). Ac-

cordingly, it cannot be the basis for finding exhausted the

claims upon which respondent sought habeas corpus relief.

See Williams v. Armontrout, 679 F. Supp. 916, 926 (W.D.

Miss. 1988) (claim of ineffectiveness for failure to object

to the admission of other crimes evidence does not fairly

present the claim that the other crimes evidence was in-

acamissible).

(Continued from previous page)

stantial equivalents of the due process claims he asserted in

federal court by noting that in raising his sixth amendment

claims he argued that he was denied a “fair trial.’ Contrary to

respondent's contention, claims regarding the denial of a fair

trial are not synonymous with due process claims and are just

as consistent with a sixth amendment claim as with a due pro-

cess claim. In this Court’s seminal case on the sixth amendment

right to effective counsel, Strickland v. Washington, 466 U.S.

668 (1984), the Court defined prejudice from an ineffective at-

torney as arising from “errors so serious as to deprive defendant

of a fair trial, a trial whose result is not reliable.” Id. at 687

(emphasis added). Allegations regarding the denial of a fair

trial are as likely to be made in claims of trial error grounded

in the fourth amendment or sixth amendment as they are in

claims grounded in the due process clause of the fifth amend-

ment. Any claim that a serious error was made at trial neces-

sarily includes a claim that the trial was somehow not fair.

13

CONCLUSION

For the foregoing reasons, as well as the reasons set

forth in petitioner’s principle brief, it is respectfully re-

quested that the order of the United States Court of Ap-

peals for the Third Circuit be reversed and that the case

be remanded for further proceedings consistent with this .

Court’s opinion.

Respectfully submitted,

GarLeE McLavucuuin BartHoup*

Deputy District Attorney

EvizaBETH J. CHAMBERS

Assistant District Attorney

Chief, Federal] Litigation

Lavuriz Macip

Assistant District Attorney

WituiaM G. CHapwick, JR.

First Assistant

District Attorney

Rownaup D. CastrLue

District Attorney

*Counsel of Record

Office of the District Attorney

1421 Arch Street

Philadelphia, PA 19102

Telephone: (215) 686-5700