Petition for Writ of Certiorari — Washington v. Grace (No. 05-1415)

(\) Supreme Court U.S.

oh et 0514 15May 4 - 2006

OFFICE OF THE CLERK

Inu The

Supreme Court of the Anited States

¢

WILLIAM E. WASHINGTON,

Petitioner,

vs.

SUPERINTENDENT JAMES GRACE and OFFICE OF

THE DISTRICT ATTORNEY OF DELAWARE COUNTY,

Respondents.

&

vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+

PETITION FOR WRIT OF CERTIORARI

+

JOHN J. O'BRIEN, JR., ESQUIRE

(Counsel of Record)

257 E. Lancaster Avenue, Suite 201

Wynnewood, PA 19096

(610)896-6360 Fax: (610)896-8359

WILLIAM C. REIL, ESQUIRE

Attorneys for Petitioner William E. Washington

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

DID THE THIRD CIRCUIT COURT OF APPEALS

ERR-BY NOT GRANTING A CERTIFICATE OF AP-

PEALABILITY WITH REFERENCE TO THE HABEAS

CORPUS PETITION OF APPELLANT?

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

William E. Washington, an individual;

Superintendent James Grace, an individual;

Office Of The District Attorney Of Delaware County

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. ...ccssssssss i

PARTIES TO THE PROCEEDING o...-.cssssssessssssssssssse ii

TABLE OF CONTENTS ...ccsccsssssssssssssssessssssssssssessecsssecs iii

TABLE OF AUTHORITIES .......seccccssssssescssssssssevseessesse v

CITATIONS OF REPORTS OF OPINIONS ENTERED

PCN No 1

BASIS FOR SUPREME COURT JURISDICTION....... 1

CONSTITUTIONAL PROVISIONS INVOLVED IN THE

AME oe es oy 1

STATEMENT OF THE CASE...ccccccssssssessssssssssessscecsssees D

ARGUMENT FOR APPELLANT ...sscccsccs-ssccssssssssssseesen 5

A. Whether The Third Circuit Court Of Appeals

Erred By Not Granting A Certificate Of Ap-

pealability With Reference To The Denial Of A

Petition For Writ Of Habeas Corpus By The

nh RRC ee eS ROY ENTE eee SENAY OT OS 5

1, aE Sr Be nds ce sienna ciassicetin 5

2. Constitutional Error Was Committed By

Prohibiting Defendant From Introducing A

Tape Recording Of The Victim, Which Was

Exculpatory Evidence, In Violation Of De-

fendant’s Right Of Confrontation............... 7

3. The Search Warrant Executed Against

Appellant Was Invalid, Since It Was Not

Signed By The Issuing Authority And

There Was No Expiration Date .................. 10

CONC I ssi cicinciteince ee 11

iv

TABLE OF CONTENTS -— Continued

APPENDICES:

Court of Appeals Order Denying Petitioner’s

Request for a Certificate of Appealability............... App. 1

District Court Order Denying Petitioner’s Petition

for Writ of Habeas Corpus. ..............c:cccccesssssnecesessees App. 3

Report and Recommendation by United States

Magistrate Judge Carol Sandra Moore Wells......... App. 4

Petition for Writ of Habeas Corpus..................0.::008 App. 22

Court of Appeals Order Denying Petitioner’s

Petition for Rehearing, en banc ...................:000000+ App. 25

SUI UII gies ichisncsanaaanssecSinackiepiescéeensenasnnioneaes App. 27

TABLE OF AUTHORITIES

Page

CASES

Ashwander v. TVA, 297 U.S. 288 (1936) ...............ceeseceeeeeees 7

Barefoot v. Estelle, 463 U.S. 880 (1983) ..........cceeeeeseeeeeeeees 6

Buxton v. Collins, 925 F.2d 816 (5th Cir, cert.

MSMR, GIG TTT. SAG CAD) is becissssvndesscearcaséasssensserseccavere 6

California v. Green, 399 U.S. 149 (1970)... eee eecee ones 10

Commonwealth v. Chandler, 477 A.2d 851 (Pa. :

ROIRD iacics oiianicievsn de shes biel basin caeituakuntasnd icin schvod tie Maiaalales 11

Commonwealth v. McGowan, 535 Pa. 292, 635 A.2d

Be NEN sina ciscs hi issicheaaadineghink cians ce wiesaesaclanauaadiniinlcmeouets 8

Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79

CRM kchcss skiiaecriscmanicledanecuieeanelien avococemaamamnapicemakabeates 8

Commonwealth v. Thompson, 779 A.2d 1195 (Pa.

NE: SI inca cocsirnts eased gsaeas gncinnacdnnsskoabesssoncmmbasadedeo 8

Commonwealth v. Ward, 529 Pa. 506, 605 A.2d 796

EC RUUIIED scca.ciesnigsststhichck acs dec baka seaabicabh dicen hamaeaiindnehaebinedcuahesbnnbeaneben 9

Commonwealth v. Zugay, 745 A.2d 639 (Pa. Super.

BED saisig sasiiics ibaa its d, scceaeoncnidgce cen chahbasea ties ackbuhtoaaeaenchinacen >

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39

Sie a UR AF isis Inc ideensnickn avandsaccncsdaboassacavehied 2,10

Hackett v. Price, 381 F.3d 281 (3d Cir. 2004)... &

Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000)......... 6

Slack v. McDaniel, 529 U.S. 484 (2000).........0.0.. cece 6, 7

vi

TABLE OF AUTHORITIES - Continued

Page

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989,

ee cae SUR SEF cineskiscekdsstcabsscccnunncdidabcbccksowaianians 2,10

United States v. Abel, 469 U.S. 45 (1984)... eee 10

United States v. Williams, 158 F.3d 736 (3d Cir.

| RRR RSET eee RSE RNR MOC ep oT EEN EOE HE NGI WSReTS COIN 7

Williams v. Taylor, 529 U.S. 362 (2000).............. eee 5, 6

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.

OE gM IE RE, CE isin csinnisoeascaccaccinvasseccsvasvescts 2,11

UNITED STATES CONSTITUTION

Amendment IV, Unreasonable Search and Seizure

RII vic cetsinciileanissicuiicisuiehk eaiciaiastnichcasdatictobcecncnccenea ssamaabeaaiaaaloni 1

Amendment VI, Confrontation Clause .....................6. je

FEDERAL STATUTES

28 U.S.C. RIAD as sasvinccnssaiivrnnsetsenanhiisnsbeadseninsensccnsneavensinsibe 1

I a a 5

Pe SF ats MOI Ms chsh ransvisausconinnctoconinaecbionssdnenaniakwaasiinns 6

1

CITATION OF REPORTS OF

OPINIONS ENTERED IN THE CASE

William E. Washington v. Superintendent James

Grace, et al, 05-4378 (3rd Cir. February 3, 2006 and

December 7, 2005). App. 22 and App. 21.

,%

v

BASIS FOR SUPREME COURT JURISDICTION

The Court of Appeals for the Third Circuit entered its

final judgment on February 3, 2006 denying petitioner’s

request for rehearing en banc. On December 7, 2005, the

Third Circuit Court of Appeals denied petitioner’s request

for certificate of appealability. Petitioner William E.

Washington seeks review of these judgments on a writ of

certiorari.

This Court has jurisdiction under 28 U.S.C. §1254(1)

to review, on a writ of certiorari, the final order of a federal

court of appeals.

@

vy

CONSTITUTIONAL PROVISIONS

INVOLVED IN THE CASE

Constitution of the United States, Amendment IV,

Unreasonable Search and Seizure Clause, and Amend-

ment VI, Confrontation Clause.

2

Vv

2

STATEMENT OF THE CASE

This Petition is occasioned by the denial of Appellant’s

Request for a Certificate of Appealability in an Order

issued on February 3, 2006 by the Third Circuit Court of

Appeals denying a petition for rehearing en banc and

signed by the Honorable Maryanne Trump Barry, Circuit

Judge. A true and correct copy of this Order and Opinion is

attached and incorporated at Appendix A-22.

Undersigned counsel expresses a belief, based on a

reasoned and studied professional judgment, that the

decision in the instant case is contrary to decisions of the

United States Court of Appeals for the Third Circuit

and/or the Supreme Court of the United States, and that

the decision by the Court of Appeals is contrary to the

decision of this Court or the Supreme Court in the case of

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94

L.Ed.2d 40 (1987) and Davis v. Alaska, 415 U.S. 308, 94

S.Ct. 1105, 39 L.Ed.2d 347 (1974), dealing with the Con-

frontation Clause, as well as Wong Sun v. United States,

371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), dealing

with the “fruit of the poisonous tree,” arising out of an

illegal search.

Undersigned counsel further expresses a belief that

this appeal involves questions of exceptional importence

regarding a defendant’s right to confront witnesses on

cross-examination under the Sixth Amendment to the

United States Constitution, as well as the right of defen-

dant to challenge an unsigned and invalid search warrant

under the Fourth Amendment, which taints the subse-

quent prosecution.

Petitioner is William E. Washington, who is currently

incarcerated at the State Correctional Institution ir

3

Huntingdon, PA. Respondent James Grace is the Superin-

tendent for the State Correctional Institution at Hunting-

don, PA, with the address as indicated in the caption. The

District Attorney’s Office ef Delaware County was added

as a party by the District Court.

The Petitioner was tried before the Honorable Joseph

P. Cronin, Jr., of the Court of Common Pleas of Delaware

County, in three separate jury verdicts commencing on

5/1/02 (two consolidated incidents), 5/2/02 and 5/29/02. Mr.

Washington was charged -arising out of four separate

criminal incidents, which cccurred in Yeadon, PA between

5/30/01 and 8/4/01, and he was convicted of robbery,

criminal restraint, terroristic threat and related offenses.

On 6/26/02, Judge Cronin sentenced Mr. Washington to

the following: an aggregate term of confinement of not less

than nine (9) months, nor more than eighteen (18) months

on No. 4373-01 for Criminal Attempt and Unlawful Re-

straint; an aggregate term of confinement of not less than

nine (9) months, nor more than eighteen (18) months on

No. 4376-01 for Terroristic Threats; an aggregate term of

confinement of not less than fifty-four (54) months, nor

more than one hundred eight (108) months on No. 4145- 61

for Robbery and Robbery of a Motor Vehicle.

Petitioner appealed to the Superior Court of Pennsyl-

vania, which denied his consolidated appeals on 1/14/04

from the three-jury verdicts. Petitioner filed a Petition for

Allowance of Appeal to the Pennsylvania Supreme Court,

which was denied on 7/13/04. Petitioner filed a Petition for

a Writ of Habeas Corpus before the United States District

Cow: fyr the Eastern District of Pennsylvania. The

Honoravle Curtis Joyner in an Order of 8/23/05 denied the

Petition for Habeas Corpus and adopted the Report and

Recommendation of Magistrate Judge Sandra Moore

4

Wells, which is attached and incorporated at Appendix A-

7

In the Petition for Habeas Corpus, Mr. Washington

alleged that his constitutional rights have been violated

for the following reasons:

(a) he has been incarcerated without due process

and in violation of the Constitution of the United

States, since the trial Court did not allow defense

counsel to play a tape recording between Mr.

Washington, the complainant and his father,

which was exculpatory;

(b) he was incarcerated without due process and in

violation of the Constitution of the United States,

because the arrest and search warrants executed

against Mr. Washington were invalid, since they

were not signed by the issuing authority and

there was no expiration date;

(c) the trial Court allowed the amendment of crimi-

nal charges one day before the trial, and different

charges were alleged.

Mr. Washington appealed to the Court of Appeals for

the Third Circuit, requesting a Certificate of Appealability.

Such request was denied by the Court by Order of Decem-

ber 7, 2005. A Petition for Rehearing en banc was filed anc

denied by the Third Circuit Court of Appeals on February

3, 2006. Appellant then timely filed this Petition for Writ

of Certiorari.

i)

ARGUMENT FOR APPELLANT

A. WHETHER THE THIRD CIRCUIT COURT OF

APPEALS ERRED BY NOT GRANTING A CER-

TIFICATE OF APPEALABILITY WITH REFER-

ENCE TO THE DENIAL OF A PETITION FOR

WRIT OF HABEAS CORPUS BY THE DISTRICT

COURT.

1. Standard Of Review

Pursuant to AEDPA, a federal habeas court may

overturn state court’s resolution of the merits of a consti-

tutional issue only if the state court decision was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. §2254(d)(1). Under

the “contrary to” clause, a federal habeas court may grant

the writ if the state court arrives at a conclusion opposite

to that reached by the Supreme Court on a question of law

or if the state court decides a case differently than the

Supreme Court on a set of materially indistinguishable

facts. Hackett v. Price, 381 F.3d 281, 286 (3d Cir. 2004).

Under the “unreasonable application” clause, a federal

court may grant the writ if the state court identifies the

co: "ect governing legal principle from Supreme Court

decisions, but unreasonably applies that principle to the

facts of the prisoner’s case. Williams v. Taylor, 529 US.

362, 412-13 (2000). The appropriate inquiry, under the

“unreasonable application of” standard, is “whether the

state court’s application of clearly established federal law

was objectively unreasonable.” Jd. at 409. An unreasonable

application of federal law involves more than merely an

incorrect or erroneous application of federal law: “[Al]

federal ..abeas court may not grant relief unless that court

6

determines that a states court’s incorrect application of

clearly established federal law was also unreasonable.” Id.

(citing Williams, 529 U:S. at 411).

Several principles guide the determination of whether

a Certificate of Appealability should issue. First, the

petitioner need not demonstrate that he will (or even is

likely to) prevail on appeal for a Certificate of Appealabil-

ity to issue. As the Supreme Court has put it, “obviously

the petitioner need not show that he should prevail on the

merits. He has already failed in that endeavor.” Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983) (citation omitted).

Rather, the standard is whether the District Court’s

procedural ruling is debatable among jurists of reason,

and whether at least one constitutional claim is substan-

tial, meaning that resolution of the merits could be de-

bated among jurists of reason. Slack v. McDaniel, 529 U.S.

at 484-85; see also 28 U.S.C. §2253(c\(2); Barefoot v.

Estelle, 463 U.S. at 893 n.4. Second, any doubt as to the

satisfaction of the COA standard should be resolved in

favor of hearing the appeal. See Lambright v. Stewart, 220

F.3d 1022, 1025 (9th Cir. 2000); Buxton v. Collins, 925 F.2d

816, 819 (5th Cir., cert. denied, 498 U.S. 1128 (1991)).

Finally, when a District Court dismisses a petition on

procedural grounds without assessing the merits of the

constitutional claims, courts of appeals should resolve the

debatability of the procedural ruling before assessing the

substantiality of the constitutional claims. Slack uv.

McDaniel, 529 U.S. at 485. This is consistent with the

long-standing “avoidance doctrine,” whereby courts “wil!

not pass upon a constitutional question although properly

presented by the record, if there is also present some othe1

ground upon which the case may be disposed of,” Id

7

(quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring)). If a District Court’s procedural

ruling is deemed debatable, the appeals court may in its

discretion remand the case for a determination of whether

the constitutional claims are substantial. See Slack v.

McDaniel, 529 U.S. at 485 (remanding for lower court

determination of whether constitutional claims substan-

tial); United States v. Williams, 158 F.3d 736, 742 n.4 (3d

Cir. 1998) (expressing preference for initial District Court

review and noting remand may be appropriate when

District Court has not passed on issue).

2. Constitutional Error Was Committed By

Prohibiting Defendant From Introducing A

Tape Recording Of The Victim, Which Was

Exculpatory Evidence, In Violation Of De-

fendant’s Right Of Confrontation

Evan Tolson, the alleged victim, testified that on

5/30/01, he encountered Mr. Washington on the streets of

Yeadon, PA. When Tolson stopped his car for a stop sign,

the defendant got into the car and asked Tolson to drive

him to a nearby store. Tolson declined since he was on his

way to the Firehouse to watch a basketball game on

television. After driving approximately 5 blocks with the

defendant in his car, Tolson arrived at the Firehouse. The

defendant repeated his request that Tolson drive him to

the store. When Tolson turned off the ignition of the car,

the defendant snatched the keys from Tolson and refused

to return them to Tolson.

The defendant got into the driver’s seat of the car,

started the engine and began to drive away. As the defen-

dant began to drive away, he asked Tolson to get into the

8

car. Tolson refused and the defendant drove away with

Tolson’s mother’s car. The next day, Tolson saw his

mother’s car parked on the street in front of the defen-

dant’s girlfriend’s house. The police recovered the car and

the defendant was arrested on June 4, 2001 and charged

with Robbery and Unauthorized Use of an Automobile.

During the cross-examination of Tolson, defense

counsel asked him about making a tape recording for the

defendant and the defendant’s father, shortly after the

defendant was arrested on the charges mentioned above.

Tolson denied any recollection of such a conversation.

The next day the Commonwealth was allowed to recall

Tolson to the witness stand over the objection of the

defendant. The Commonwealth was then permitted to

question Tolson about the incident involving the tape-

recorded statement. Tolson remembered giving the defen-

dant a tape-recorded statement, which was allegedly

coerced by the defendant and/or the defendant's father.

During the defense case, defendant’s counsel offered to

introduce the tape recording made of the defendant’s

conversation with Tolson a short time after defendant was

arrested. The trial court refused to allow the defendant to

play the tape recording after reviewing it outside of the

hearing of the jury.

A defendant has a fundamental right to present

evidence in his defense, provided it is relevant and not

subject to exclusion under an established evidentiary rule.

Commonwealth v. McGowan, 535 Pa. 292, 294, 635 A.2d

113, 115 (1993); Commonwealth v. Thompson, 779 A.2d

1195 (Pa. Super. 2001); Commonwealth v. Scott, 480 Pa.

50, 389 .°..2d 79 (1978). Evidence which tends to show that

9

the crime for which an accused stands trial was committed

by someone else is both relevant and admissible. Com-

monwealth v. Ward, 529 Pa. 506, 605 A.2d 796 (1992).

Likewise, evidence, which tends to show that no crime was

committed by anyone, is relevant and admissible. In every

criminal trial, there must be proof of the corpus delicti,

i.e., the occurrence of a loss or injury and some person’s

criminal conduct as the source of that loss -or injury.

Commonwealth v. Zugay, 745 A.2d 639 (Pa. Super. 2000).

The defendant sought to introduce a tape recording of

a conversation between the victim, the defendant and the

defendant’s father which took place shortly after the

defendant was arrested. The defense asserted that the

tape recording would show that no crime had been com-

mitted. The trial judge reviewed the tape recording after

receiving assurance it was made with the knowledge and

consent of the victim. The trial court precluded the intro-

duction of the tape recording because the defendant’s

father testified about the conversation and the victim

acknowledged that a conversation between himself and

the defendant had been recorded.

The jury never heard the victim’s own words suggest-

ing that no crime had occurred when the defendant took

the victim’s car to go to the store. This would have been

powerful evidence impeaching the alleged victim’s credibil-

ity. The Sixth Amendment to the United States Constitu-

tion provides that “In all criminal prosecutions the

accused shall enjoy the right . . . to be confronted with the

witnesses against him.”

A primary goal of the right to confront witnesses is to

secure the defendant’s opportunity for cross-examination.

10

See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94

L.Ed.2d 40 (1987). The right to confront witnesses also

prohibits unreasonable limitation of the scope of cross-

examination. The leading case on this matter is Davis v.

Alaska, 415 U.S. 308, 94 &.Ct. 1105, 39 L.Ed.2d 347

(1974), in which the U.S. Supreme Court held that a state

prohibition on revealing a juvenile’s record denied the

defendant his right to confront witnesses. Under United

States Supreme Court precedent, as well as Pennsylvania

law, petitioner was denied the right to confront his accuser

on cross-examination.

Without listening to the tape recording at an eviden-

tiary hearing, the crucial nature of the tape recording

cannot be assessed from the jury’s perspective. To deprive

Mr. Washington of the ability to confront his accuser with

his own words violates his Constitutional Right of Con-

frontation. The literal right to confront the witness at the

time of trial forms the core of the values furthered by the

Confrontation Clause. California v. Green, 399 U.S. 149,

157 (1970); United States v. Abel, 469 U.S. 45, 50 (1984).

An evidentiary hearing in which the tape could be played

would underscore that the tape was necessary for effective

cross-examination of the witness.

3. The Search Warrant Executed Against Appel-

lant Was Invalid, Since It Was Not Signed By

The Issuing Authority And There Was No Ex-

piration Date

On August 12, 2001 at approximately 6:00 PM.,

officers of the Yeadon Police Department forcibly and

illegally entered the home of defendant, William Echelon

Washington and his parents, to serve a search warrant.

11

The signature of the issuing authority on the warrant is

illegible and markedly disparate from similar signatures

on other documents. A true and correct copy of the warrant

is attached and incorporated at Appendix A-24. There was

no evidence that the warrant was properly issued and

signed by the appropriate judicial officer. It is axiomatic

that an invalid warrant is a nullity and taints the entire

criminal process.

It appears that the search warrant, that was initially

issued against Mr. Washington by Delaware County

District Justice Tolliver, was never signed by him. Of

course, it is standard procedure that an issuing magistrate

will sign and seal all of those complaints, citations, sum-

mons, or warrants for which he or she is responsible for

initiating.

To be valid, a warrant must be properly dated and

signed by a judicial officer. Commonwealth v. Chandler,

477 A.2d 851 (Pa. 1984). By failing to have a validly signed

warrant, the police tainted the proceedings against defen-

dant. See Wong Sun v. United States, 371 U.S. 471, 83

S.Ct. 407, 9 L.Ed.2d 441 (1963). Where there is such a

taint, this is an exception to the rule that an illegal arrest

or detention does not void a subsequent conviction.

,

vv

CONCLUSION

Review of the Court of Appeals decision through a writ

of certiorari will yield a result that is required under the

United States Constitution on the issues of the right of

confrontation and the right to be free from illegal search

and seizure. This result conforms to the teachings of the

12

Supreme Court. For all the foregoing reasons, it is respect-

fully submitted that the Third Circuit Court of Appeals

erred by not granting a certificate of appealability with

reference to the Habeas Corpus Petition of appellant.

Respectfully submitted,

JOHN J. O'BRIEN, JR., ESQUIRE

(Counsel of Record)

WILLIAM C. REIL, ESQUIRE

Attorneys for Petitioner

William E. Washington

May 1, 2006

App. 1

CPS-43 November 10, 2005

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

C.A. No. 054378

WILLIAM E. WASHINGTON

VS.

JAMES GRACE, ET AL.

(ED. PA. CIV. NO. 04-CV-04812)

Present: BARRY, SMITH AND NYGAARD, CIRCUIT

JUDGES

Submitted appellant’s request for a certificate of

appealability under 28 U.S.C. § 2253(c)(1);

in the above-captioned case.

Respectfully,

Clerk

MMW/KEK/zm/cmd

ORDER

The foregoing request for a certificate of appealability is

denied. We disagree with the District Court that the state

court’s refusal to consider Washington’s illegal arrest and

search claim was a denial based upon independent and

adequate state grounds, effectively barring federal review.

See Ford v. Georgia, 498 U.S. 411, 423-24 (1979); Faherty

v. Gracias, 874 A.2d 1239, 1245 (Pa. Super. 2005); Com-

monwealth v. Dupre, 866 A.2d 1089, 1096-97 (Pa. Super.

2002); Commonwealth v. Lutes, 793 A.2d 949, 955 n.1 (Pa.

Super. 2002). We conclude, however, that the Appellant

has not made a substantial showing of the denial of a

App. 2

constitutional right with regard to this claim. See Gerstein

v. Pugh, 420 U.S. 103, 119 (1975) (illegal arrest or deten-

tion does not void a subsequent conviction). We also

conclude, for substantially the reasons given by the Dis-

trict Court in denying his petition, that he has not made

such a showing with regard to his remaining claims. See

28 U.S.C. § 2253(c)(2).

By the Court,

/s/ Maryanne Trump Barry

Circuit Judge

Dated: December 7, 2005

CME cc: William C. Reil, Esq.

Louis G. Stesis, Esq.

App. 3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM E. WASHINGTON, : CIVIL ACTION

vs.

SUPERINTENDENT JAMES _ :

GRACE, et al. : NO. 04-CV-4812

ORDER

(Filed Aug. 25, 2005)

AND NOW, this 23rd day of August, 2005, after

consideration of the Report and Recommendation of Carol

Sandra Moore Wells, United States Magistrate Judge and

the objections of Petitioner, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED

and ADOPTED.

2. The petition for writ of habeas corpus is DENIED,

without a hearing, as Petitioner has not shown that any

reasonable jurist could find it debatable that this petition

is procedurally barred or that Petitioner has shown a

denial of a constitutional right; and

3. There is no probable cause for appeal.

BY THE COURT:

/s/ J. Curtis Joyner

J. CURTIS JOYNER, J.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM WASHINGTON, : CIVIL ACTION

Petitioner * NO. 04-4812

v. :

SUPERINTENDENT JAMES GRACE, °

et al., :

Respondent

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS July 29, 2005

UNITED STATES MAGISTRATE JUDGE

Presently before this court is a petition for habeas

corpus relief filed pursuant to 28 U.S.C. § 2254. Petitioner,

‘William E. Washington (“Petitioner”), an inmate at the

State Correctional Institute at Huntingdon, Pennsylvania,

alleges that unconstitutional errors were committed by the

trial court. The Honorable J. Curtis Joyner referred this

matter to the undersigned for a Report and Recommenda-

tion pursuant to 28 U.S.C. § 636(b)(1)(B) for the reasons

stated below, it is recommended that Petitioner’s claims be

DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY:

Petitioner was charged with robbery and various

offenses which occurred in Yeadon, Delaware County on

* The background and procedural history were drawn from

Petitioner’s habeas petition, brief and attachments, the Government’s

response, with exhibits, and the state court record.

App. 5

May 31, 2001 and August 4, 2001. Commonwealth v.

Washington. Nos. 4373-01, 4376-01, and 4145-01 EDA

2002 at 1-2 (Dec. 26, 2002). According to the trial court:

At trial, the Commonwealth called as a witness,

Donald Richley. Mr. Richley testified that on Au-

gust 4, 2001, [Petitioner] went to the Tri-Star

Market, in Yeadon, Pennsylvania, to purchase a

pack of cigarettes. Mr. Richley testified that as

he exited the Tri-Star Market, [Petitioner] fol-

lowed him and as Mr. Richley was getting into

his automobile, [Petitioner] instructed him to

“get in the car.” Further, he testified that [Peti-

tioner] pushed him to get him into the automo-

bile. At that point, Mr. Richley “spun around”

and went back into the store. Once he was in the

store, he called the police.

At trial, the Commonwealth called as a wit-

ness, Michael Scott Jr. Mr. Scott testified that on

July 28, 2001, he was leaving the Tri-Star Mar-

ket, cutting across the parking lot towards Bul-

lock Avenue, when [Petitioner] approached him

said “hey you, come here.” At that point, Mr.

Scott began running out of fear. Then, [Peti-

tioner] shouted at him “If you don’t stop, I’m go-

ing to shoot you.”

Commonwealth v. Washington, Nos. 4373-01, 4376-01, and

4145-01 EDA 2002 at 1-2, 5-7 (Del. County Ct. Comm. PI.,

Dec. 26, 2002) (citations to the record omitted). Specific

facts supporting Petitioner’s arrest and conviction for

Robbery and Robbery of a Motor Vehicle follow. The victim,

Evan Tolson, familiar with Petitioner a neighborhood

acquaintance, testified that he encountered Petitioner on

the streets of Yeadon on May 30, 2001. N.T., 05/29/02 at

App. 6

175. Petitioner approached and entered Tolson’s stopped

car, asking him for a ride; Tolson denied the request, as he

was en route to the Yeadon Fire Department. Jd. at 175,

178-79. Petitioner remained in Tolson’s car until they

arrived at the firehouse. Jd. at 180. There, Petitioner

repeated his request for a ride, took the car keys from

Tolson when he refused, and drove away. Id. at 180-81.

That evening, Tolson reported that his car had been stolen

and notified police that he had seen his Blue Chevy

Malibu parked outside the home of Petitioner’s girlfriend.

Id. at 180-81, 198.

Petitioner was convicted of Criminal Attempt to

Commit Unlawful Restraint (No. 4373-01), Terroristic

Threats (No. 4376-01) and Robbery of a Motor Vehicle (No.

4145-01) at the close of two jury trials.’ Id. On June 26,

2002, the Honorable Joseph P. Cronin, Jr., in the Court of

Common Pleas of Delaware County, Pennsylvania, sen-

tenced Petitioner to an aggregate term of confinement of

* By order dated March 27, 2002, Case No. 4373-01 was consoli-

dated with Case No. 4376-01 for trial. See Commonwealth v. Washing-

ton, Nos. 4373-01, 4376-01, and 4145-01 EDA 2002 at 1 (Dec. 26, 2002).

These cases were then tried before jury on May 1, 2002 and May 2,

2002. Separate trials were ordered for Case Nos. 4376-01 and 4145-01.

Id.

On [No. 4373-01], [Petitioner] Washington was convicted of

Criminal Attempt and Unlawful Restraint and was sentenced to

serve an aggregate term of confinement of not less than nine (9)

months, nor more than eighteen (18) months. On [No. 4376-01],

Petitioner was convicted of Robbery and Robbery of a Motor Vehi-

cle and was sentenced to serve an aggregate term of confinement

of not less than fifty-four months nor more than one hundred

eight months.

Commonwealth v. Washington, Nos. 4373-01, 4376-01, and 4145-01 at

1-2 (Del. County Ct. Comm. Pl., Dec. 26, 2002) (citations to the record

omitted).

App. 7

72-144 months, of which 54-108 months resulted from the

conviction for Robbery and Robbery of a Motor Vehicle.

Commonwealth v. Washington, Nos. 4376-01, 4145-01,

4373-01 at 1-2 (Del. County Ct. Com. Pl., Dec. 26, 2002).°

On July 5, 2002, Petitioner filed Post-Sentence

Motions and, on July 18, 2002, he appealed his sentence

to the Superior Court. Since these two procedures can not

[sic] be employed simultaneously, the trial court deemed

Petitioner’s Notice of Appeal a withdrawal of his Post-

Sentence Motions and, consequently denied them. Jd. at

2. The Pennsylvania Superior Court affirmed the judg-

ment for reasons expressed in the trial court opinion.‘

* Also, Petitioner was sentenced to 9-18 months for Criminal

Attempt and Unlawful Restraint and 9-18 months for Terroristic

Threats. Id.

* On direct appeal, Petitioner asserted that:

I. The trial court committed reversible error when it allowed

the Commonwealth to file an information charging “Robbery

of a Motor Vehicle” on the day before the [Petitioner’s] trial;

II. The trial court committed reversible error when it allowed

the Commonwealth to recall Evan Tolson to the stand on

redirect examination to rehabilitate him prior to the presen-

tation of evidence against him by the [Petitioner];

III. The trial court committed reversible error when it denied

the [Petitioner] the opportunity to present impeachment

evidence of Evan Tolson in the form of a consensual tape re-

cording of a conversation between Evan Tolson, the [Peti-

tioner] and [Petiticner’s] father;

IV. The verdict of guilty of criminal attempt to commit unlawful

restraint of Donald Richley was contrary to law, because the

Commonwealth did not meet its burden of proof in estab-

lishing the elements of those crimes; and

V. The criminal complaints and arrest warrants in this case

were defective because they were issued by District Justice

Tolliver but allegedly signed by another district justice.

Commonwealth v. Washington,

App. 8

Commonwealth v. Washington, Nos. 2612, 2613 & 2614

EDA 2002 at 4 (Pa. Super. Ct., Jan. 14, 2004).

Next, on November 12, 2004, Petitioner filed the

instant petition for writ of habeas corpus asserting three

claims: ;

Ground One — Trial court committed error by

prohibiting Petitioner from introducing exculpa-

tory evidence in the form of a tape-recording of a

conversation between the complaining witness,

Petitioner and Petitioner’s father;

Ground Two — The trial court erred by allowing

the Commonwealth to add a criminal informa-

tion charging the Petitioner with robbery of a

motor vehicle on the day before the trial; and

Ground Three — Petitioner was incarcerated as a

result of an unlawful and unconstitutional arrest

and search.

Petition for Writ of Habeas Corpus (“Pet.”) at 9-10; Peti-

tioner’s Memorandum of Law in Support of the Petition

(“Pet. Br.”) at 2, 5.

II. DISCUSSION

A. Exhaustion Requirement

A petition for habeas corpus is a final effort to obtain

relief when other legal remedies are foreclosed. A district

court may consider and grant habeas corpus relief only if

Petitioner meets his burden of proving that he has either

exhausted all state remedies available to him with respect

to each discrete allegation, there is an absence of available

State corrective process, or circumstances exist that

render such process ineffective to protect the rights of the

App. 9

applicant. 28 U.S.C. § 2254(b).° To exhaust habeas claims,

a state prisoner must “fairly present” all federal claims to

the highest state court. See 28 U.S.C. § 2254(b); O’Sullivan

v. Boerckel, 526 U.S. 838, 842 (1999); see also Picard v.

Connor, 404 U.S. 270, 275 (1971) (holding that State courts

should have an opportunity to pass upon and correct

alleged errors). Petitioner has presented his claims to the

trial court and to the Pennsylvania Superior Court on

direct appeal, thereby satisfying the exhaustion require-

ment.

B. Procedural Bar - Ground Three — Unconstitu-

tional Search and Seizure Claim

Petitioner contends that he is incarcerated as the

result of an unlawful search and seizure, because the

arrest and search warrants, while issued by one judge,

were signed by another judicial officer, without mention of

an expiration date. Pet. at 9-10. The Government re-

sponded that, inasmuch as the alleged defect was neither

* The exhaustion requirements of 28 U.S.C. § 2254 provide:

(bX 1) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State Court shall

not be granted unless it appears that

(A) the applicant has exhausted the remedies available in

the courts of the State; or

(BXi) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process ineffec-

tive to protect the rights of the applicant .. .

(c) An applicant shall not be deemed to have exhausted the

remedies available in the courts of the State, within the meaning

of this section, if he has the right under the law of the State to

raise, by any available procedures, the question presented.

App. 10

timely raised before the conclusion of the preliminary

hearing nor prejudicial to Petitioner’s rights,’ habeas relief

is inappropriate. Commonwealth’s Answer to Application

for Habeas Corpus Relief (“Ans.”) at 13.

The Pennsylvania Superior Court refused to address

the merits of this claim, because Petitioner did not adhere

to local procedural rules in presenting it. Commonwealth

v. Washington, Nos. 2612, 2613 & 2614 EDA 2002 at 3-4

(Pa. Super. Ct., Jan. 14, 2004). Specifically, Petitioner’s

Statement of Questions Involved on direct appeal sur-

passed the one page maximum set by Pa.R.AP. 2116

(2002); his fifth question, addressing his arrest and search

warrants, appeared on the second page. Based on Penn-

sylvania Appellate Rule 2116(a), this statement “must

never exceed one page, and must always be on a separate

page, without any other matter appearing thereon. This

rule is to be considered in the highest degree mandatory,

admitting of no exception.” Commonwealth v. Washington,

Nos. 2612, 2613 & 2614 EDA at 3-4 (emphasis in original).

The Superior Court adhering to Pa. R. A.P. 2116(a), re-

fused to review Petitioner’s fifth issue, because it was on

the forbidden second page. Jd. at 4. The state court’s denial

of this claim, based on independent and adequate state

* Under Rule 109 of Pennsylvania Rules of Criminal Procedure,

“A defendant shall not be discharged nor shall a case be dismissed

because of a defect in the form or content of a complaint, citation,

commons, or warrant, or a defect in the procedures of these rule [sic],

unless the defendant raises the defect before the conclusion of the trial

in a summary case or before the conclusion of the preliminary hearing

in a court case, and the defect is prejudicial to the rights of the defen-

dant.” Pa.R.Crim.P. 109 (2005).

App. 11

grounds, is barred from federal habeas review. See Cole-

man v. Thompson, 501 U.S. 722, 729 (1991).

A federal habeas court will not review a question of

federal law decided by a state court if the decision of the

state court rests on a state law ground that is independent

of the federal question and adequate to support the deter-

mination. Coleman, 501 U.S. at 729 (1991); Villot v. Varner,

373 F.3d 327 (8d Cir. 2004); 28 U.S.C. §2254(b)(1)(A). A

state procedural rule provides an independent and ade-

quate basis for precluding federal habeas review of a state

prisoner’s claims only if: 1) the state procedural rule

speaks in unmistakable terms; 2) all state appellate courts

refused to review petitioner’s claims on the merits; 3) the

state court’s refusal of review is consistent with other

decisions; and 4) the state rule is consistently and regu-

larly applied. Szuchon v. Lehmon, 273 F.3d 299, 325-26 (3d

Cir. 2001) (quoting Doctor v. Walters, 96 F.3d 675 (3d Cir.

1996)). If the state court reached the merit of a claim as an

alternative holding, the claim is nevertheless defaulted.

See Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996)

(citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)).

Pennsylvania Appellate Rules are independent of any

federal question. Pennsylvania appellate courts consis-

tently and strictly enforce their Rules of Appellate Proce-

dure. See, e.g., Commonwealth v. McCafferty, 563 A.2d

1155, 1164 (Pa. 2000) (holding that an issue is waived

when not properly presented in Statement of Questions

Involved); Commonwealth v. Higgins, 809 A.2d 908, 912

(Pa. Super. Ct. 2002) (same). Pennsylvania Rules of Appel-

late Procedure, Rule 2116 is clear on its face. The state

intermediate court’s refusal to review this claim on the

merits, consistent with both the rule and relevant case

law, bars this court’s review, unless excusable.

App. 12

Petitioner was represented by counsel at the time of

default; counsel acts for his client and is assumed to be

familiar with applicable appellate rules. Furthermore,

Petitioner has neither alleged nor shown that execution of

the underlying search and arrest warrants by two distinct

judges, without a stated deadline for execution thereof,

deprived him of a fair trial, prejudiced him, or resulted in

the conviction of an innocent man. See Murray v. Carrier,

477 U.S. 478, 496 (to excuse a procedural default, Peti-

tioner must show that, had counsel acted appropriately, it

is more likely than not that no reasonable juror would

have convicted him or that the constitutional violation

resulted in conviction of someone who is actually inno-

cent.); see also Schlup v. Delo, 513 U.S. 298 (1995). More-

over, an illegal arrest or detention does not void a

subsequent conviction. Gerstein v. Pagh, 420 U.S. 103, 119

(1975). In this case, Petitioner’s guilt was established

beyond a reasonable doubt. Thus, Ground Three, appro-

priately decided on independent and adequate state

grounds, is precluded from federal habeas review. See

Szuchon v. Lemon, 273 F.3d 299.

C. Review of the Merits

1. AEDPA Standard of Review

In 1996, Congress passed the Antiterrorism and

Effective Death Penalty Act’ (‘AEDPA”), which “altered

the standard of review that a federal habeas court must

apply to a state prisoner’s claim that was adjudicated or

the merits in state court.” Stevens v. Delaware Corr. Ctr.

295 F.3d 361, 368 (3d Cir. 2002) (citing Williams v. Taylor

7 28 U.S.C. § 2244 (2005).

App. 13

529 U.S. 362, 402-13 (2000) (interpreting 28 U.S.C.

§ 2254(d)(1)). See also Dunn v. Colleran, 247 F.3d 450, 456-

57 (3d Cir. 2001) (explaining Williams). More specifically,

AEDPA “placed a new restriction on the power of federal

courts to grant writs of habeas corpus to state prisoners.”

Dunn, 247 F.3d at 456-57 (quoting Williams, 529 U.S. at

399).

Pursuant to AEDPA, a federal habeas court may

overturn state court’s resolution of the merits of a consti-

tutional issue only if the state court decision was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). Under

the “contrary to” clause, a federal habeas court may grant

the writ if the state court arrives at a conclusion opposite

to that reached by the Supreme Court on a question of law

or if the state court decides a case differently than the

Supreme Court on a set of materially indistinguishable

facts. Hackett v. Price, 381 F.3d 281, 286 (3d Cir. 2004).

Under the “unreasonable application” clause, a federal

court may grant the writ if the state court identifies the

correct governing legal principle from Supreme Court

decisions, but unreasonably applies that principle to the

facts of the prisoner’s case. Id. (quoting Williams, 529

U.S. at 412-13). The appropriate inquiry under the

“unreasonable application of” standard is “whether the

state court’s application of clearly established federal law

was objectively unreasonable.” Jd. at 409. An unreason-

able application of federal law involves more than merely

an incorrect or erroneous application of federal law: “[A]

federal habeas court may not grant relief unless that court

determines that a states court’s incorrect application of

App. 14

clearly established federal law was also unreasonable.” Id.

(citing Williams, 529 US. at 411).

The Supreme Court addressed the AEDPA’s factual

review provisions in Miller-El v. Cockrell, 5837 U.S. 322

(2003). There, the Supreme Court interpreted § 2254(d)(2)

to mean that “a decision adjudicated on the merits in a

state court and based on a factual determination will not

be overturned on factual grounds unless objectively

unreasonable in light of the evidence presented in the

state court proceeding.” Jd. at 340. Yet, the habeas court

can “disagree with a state court’s credibility determina-

tion.” Id.; Lambert v. Blackwell, 387 F.3d 210, 235 (3d. Cir.

2004). See also Wiggins v. Smith, 539 U.S. 519 (2003)

_(rejecting state court’s factual determination under

§ 2254(e)(1) and 2254(d)(2)). If the state court’s decision

based on a factual determination is unreasonable in light

of the evidence presented in the state court proceeding,

habeas relief is warranted under § 2254(d)(2). Lambert,

387 F.3d at 235.

2. Ground One - Exclusion of an Exculpatory

Tape-Recorded Conversation Claim

Petitioner claims that the trial court abused its

discretion by excluding an exculpatory piece of evidence -

a tape-recorded conversation between Petitioner, Peti-

tioner’s father, and the complaining witness, Evan Tolson

Pet. at 9; Pet. Br. at 2. The trial court ruled that the tape

contained self-serving remarks spoken by Petitioner’:

father and was, therefore, inadmissible. Notes of Testi

mony (“N.T.”), 05/30/02 at 4. Moreover, inasmuch as the

Commonwealth and Petitioner had an opportunity t

question Evan Tolson, in person, the need to play the tapr.

recording for the jury was obviated. Commonwealth v

App. 15

Washington, Nos. 4376-01, 4145-01, 4373-01 at 10 (Del.

County Ct. Com. Pl., Dec. 26, 2002).

A federal habeas court will not generally decide the

propriety of evidentiary rulings in a state criminal trial.

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Moreover,

state evidentiary errors are not considered to be of consti-

tutional proportion, are not cognizable in federal habeas

corpus proceedings, unless the error “deprives a defendant

of a fundamental fairness in his criminal trial.” Bisaccia v.

Atty. Gen. of the State of NJ, 623 F.2d 307, 323 (3d. Cir.),

cert. denied, 449 U.S. 1042 (1980).

Upon a review of the record in toto, this Court cannot

conclude that Petitioner was deprived of fundamental

fairness at trial. Although Petitioner claims that the

exclusion of this evidence prejudiced his defense, he fails

to prove that this tape-recording would have been exculpa-

tory. Petitioner sought to introduce the tape-recording for

the purposes of impeachment the day after Mr. Tolson

testified in court. N.T., 05/30/02 at 3-10. Nevertheless,

both the Commonwealth and Petitioner had the opportu-

nity to question Evan Tolson regarding the contents of the

tape-recording as well as the circumstances under which it

was made.® The trial court allowed the Commonwealth to

* On cross-examination, Evan Tolson testified that he did not recall

the recorded conversation:

Q. Mr. Tolson, do you remember having a conversation with Mr.

Washington, Sr., [Petitioner’s] father, and [Petitioner] outside

of the store on June 4?

A. Nope.

Q. You don’t remember that?

A. NoI don’t.

Q. You just said you did remember.

(Continued on following page)

App. 16

call Evan Tolson back to the stand, rather than to play the

tape-recording for the jury. N.T., 05/30/02 at 19-22. Upon

recall, Evan Tolson, remembered having the tape-

recording conversation, thus, effectively contradicting his

earlier testimony denying any recollection of it. He even

provided explicit details of the recording, before claiming

that his statement on the tape was coerced. N.T., 05/29/02

at 193-96; 05/30/02 at 40-41. Thus, Petitioner had a full

and fair opportunity to impeach this witness, in front of

the jury, as to the exclu Jed tape recording.

The Confrontation Clause does not secure the accused

an unfettered right to confront a witness in any manner or

with whatever evidence he may choose. See Delaware uv.

Fensterer, 474 U.S. 15, 20 (1985) (per curiam). Rather, it

secures the accused’s opportunity to confront adverse

witnesses through cross-examination, not the right to

effective or successful cross-examination. See id. If Peti-

tioner wanted to cross-examine the witness against him.

he had the opportunity over two days of Evan Tolson’s

testimony. The trial court allowed Petitioner to examine

Tolson regarding the details of the conversation, the time

and place of its occurrence and the manner in which it was

conducted. N.T:., 46-50. If Petitioner had been allowed tc

play the tape to show that the witness lied, the evidence

would merely have been cumulative. The jury hearc

Tolson’s conflicting accounts, but, ultimately, found hin

more credible than Petitioner’s alibi witnesses.

A. I said I didn’t remember. I know he said something to me and

said whatever, and I walked away. We haven’t been sittin:

there and talking like yeah I am going to the barber shop, I ar

going to get my hair cut from your store, why would I say that’

N.T., 05/29/02 at 194-95.

App. 17

It is noted that, even if a Sixth Amendment violation

had occurred, this court would, nonetheless, affirm, since

the state court’s decision to exclude the recorded conversa-

tion was harmless. The other evidence against Petitioner —

the victim’s phone call to police to report his stolen car, the

recovery of the victim’s car outside of Petitioner’s girl-

friend’s house, and the victim’s testimony — adequately

support his conviction. Under these circumstances, this

Court concludes that exclusion of the tape-recording had

no “substantial or injurious effect or influence in determin-

ing the jury’s verdict.” California v. Roy, 519 U.S. 2, 5

(1996) (quoting Kotteakos v. United States, 328 U.S. 750

(1946)). Therefore, the state court’s determination was not

contrary to nor an unreasonable application of federal law

and Ground One is denied. See 28 U.S. [sic] § 2254(d)(1).

3. Ground Two - Addition of a Criminal In-

formation the Day Before Trial Claim

Petitioner alleges that the trial court erroneously

permitted the Commonwealth to file, at the last minute, a

criminal information charging Petitioner with Robbery of

a Motor Vehicle. Pet. at 10; Pet. Br. at 5. The Common-

wealth submits that the trial court acted within its discre-

tion in allowing the amendment. Ans. at 14. Under

Pennsylvania Rules of Criminal Procedure:

The court may allow an information to be

amended where there is a defect in form, the

description of the offense(s), the description of

any person or any property, or the date

charged, provided the information as amended

does not charge an additional or different of-

fense. Upon amendment, the court may grant

App. 18

such postponement of trial or other relief as is

necessary in the interests of justice.

Pa.R.Crim.P. 564 (formerly Pa.R.Crim.P. 229).

The day before the trial involving Petitioner’s incident

with Evan Tolson, the Commonwealth filed a crimina

information charging him with Robbery of a Motor Vehi-

cle;® the original information charged Robbery.” The state

court permitted the amendment because:

[Petitioner] was fully apprised of the facts under-

lying the criminal charges filed against him and

the amendment did not in any way hinder his

* 18 Pa.C.S.A. 3702. Robbery of a Motor Vehicle

(a) Offense defined. A person commits a felony in the first degree if h

steals or takes a motor vehicle from another person in the presence o

that person or any other person in lawful possession of the moto

vehicle.

* 18 Pa.C.S.A. 3701. Robbery

(a) Offense defined.

(1) A person is guilty of robbery if, in the course of committing

theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him i

fear of immediate serious bodily injury;

(iii) commits or threaten immediately to commit any felon

of the first or second degree;

(iv) inflicts bodily injury upon another or threatens ar

other with or intentionally puts him in fear of immediat

bodily injury; or

(v) physically takes or removes property form [sic] the pe:

son of another by force however slight.

App. 19

ability to adequately prepare a defense, nor did it

result in any prejudice.”

Commonwealth v. Washington, Nos. 4376-01, 4145-01,

4373-01 at 9.

It is deep-rooted in the United States Supreme Court’s

jurisprudence that a defendant has a fundamental right to

be informed of the nature of the charge against him. See

generally, United States v. Hess, 124 U.S. 483, 487 (1888)

(“Undoubtedly the language of the statute may be used in

the general description of an offense, but it must be

accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific

offense, coming under the general description, with which

he is charged”). It is sufficient that the information sets

forth, without uncertainty, each element necessary to

constitute the offense. United States v. Carll, 105 U.S. 611,

612 (1882); see also Hanging v. United States, 418 U.S. 87,

117 (1974) (discussing sufficiency of an indictment.)”

In the case sub judice, the original information

against Petitioner charged Robbery and Unauthorized Use

of a Motor Vehicle. Commonwealth v. Washington, Nos.

2612, 2613, and 2614 at 4. Through this information, the

Commonwealth informed Petitioner of the general offense

with which he would be charged and the factual basis for

“ The Commonwealth amended the information the day before

trial, so this issue does not implicate concerns of double jeopardy. Crist

v. Bretz, 437 U.S. 28, 38 (1978) (holding that double jeopardy attaches

when the jury is empaneled and sworn).

*% The Supreme Court cases cited herein disians the sufficiency of

indictments, subject to higher due process requirements than the

criminal information. To the extent that Petitioner’s information meets

this higher threshold, the difference is irrelevant.

App. 20

the charges. Thereby, Petitioner was notified that the

Commonwealth was charging him with theft as a result o!

the events that transpired with Evan Tolson. Regardless o:

whether the Commonwealth pursued charges of robber}

and of unauthorized use of a motor vehicle or robbery anc

robbery of a motor vehicle, Petitioner still faced the task o:

establishing either that he did not take the car or that he

took the car with permission. The Commonwealth’s origi

nal information sufficiently appraised Petitioner of the

elements necessary to constitute the offense, regardless o

the pre-trial amendment. Therefore, the state court’

decision to allow the amendment was neither contrary ti

nor involved an unreasonable application of clearly estab

lished federal law. 28 U.S.C. § 2254(d\(1). -

Additionally, Ground Two should be denied, becaus:

Petitioner cannot establish that any prejudice arose fron

the addition of the criminal information the day before hi:

trial. At trial, Petitioner presented two alibi witnesses: hi:

mother, Ms. Hamm and his father, William Washington

Sr. N.T., 05/30/02. Both witnesses testified that Petitione

was at his mother’ hair salon from before 6:00 and 8:0!

p.m. when Ms. Hamm, Mr. Washington Sr., and Petitione

left together. N.T:., 05/30/02 at 69-70, 79-80. Petitioner’

defense strategy at trial was not to disprove an element o

the crime or dispute the presence of the requisite men

rea. Rather, Petitioner sought to convince the jury that h

was elsewhere and, hence, could not have stolen the ca

The elements of the crime charged were of little conse

quence given the nature of Petitioner’s defense. The jury

rejection of Petitioner’s alibi defense was not the result

the amended information.

Because Petitioner cannot show that the amendmer

to the information prejudiced his defense, he has failed t

App. 21

establish that the trial court’s decision to allow the

amendment the day before deprived him “of a fundamen-

tal fairness in his criminal trial.” Bisaccia, 623 F.2d at

323. Federal habeas relief is, thus, unwarranted on

Ground Two.

Ill. CONCLUSION

Petitioner’s search and seizure claim is procedurally

defaulted; his evidentiary and late bill of information

claims fail to demonstrate a Constitutional violation.

Therefore, this habeas corpus Petition should be denied in

its entirety. Accordingly, I make the following:

RECOMMENDATION

AND NOW, this 29th day of July, 2005, for the reasons

contained in the preceding report, it is hereby RECOM-

MENDED that Petitioner’s three claims, inasmuch as they

are devoid of merit or procedurally defaulted, should be

DENIED with prejudice and without an evidentiary

hearing. Petitioner has not shown that any reasonable

jurist could find it debatable that this petition is proce-

durally barred or that he is entitled to relief. Therefore,

there is no probable cause to issue a certificate of appeal-

ability.

/s/ Carol S. M. Wells

CAROL SANDRA MOORE WELLS

United States Magistrate Judge

App. 22

LAW OFFICES OF WILLIAM C. REIL

BY: William C. Reil, Esquire

Identification No. 26833

210 Robinson Building

42 South 15th Street

Philadelphia, PA 19102

(215) 564-1635 ATTORNEY FOR

PETITIONER

WILLIAM E. WASHINGTON : UNITED STATES

PP# 8414 : DISTRICT COURT FOR

1100 Pike Street ' ; THE EASTERN DISTRICT

Huntingdon, PA 16654 : OF PENNSYLVANIA

vs. :

SUPERINTENDENT : NO:

JAMES GRACE :

1120 Pike Street a

Huntingdon, PA 16654 - HABEAS CORPUS

PETITION FOR WRIT OF HABEAS CORPUS

William E. Washington, through his undersigne:

- counsel, requests the Court to issue a Writ of Habea

Corpus, with respect to his incarceration, and in suppor

thereof it is averred as follows:

1. Petitioner is William E. Washington, PP#841-

who is currently incarcerated at the State Cor

rectional Institution in Huntingdon, PA.

2. Respondent James Grace is the Superintender

for the State Correctional Institution at Hur

tingdon, PA, with the address as indicated in th

caption.

3. The Petitioner was tried before the Honorabl

Joseph P. Cronin, Jr., of the Court of Commo

Pleas of Delaware County, in three separate jur

App. 23

verdicts commencing on 5/1/02 (two consolidated

incidents), 5/2/02 and 5/29/02.

Mr. Washington was charged arising out of four

separate criminal incidents, which occurred in

Yeadon, PA between 5/30/01 and 8/4/01, and he

was convicted of robbery, criminal restraint, ter-

roristic threat and related offenses.

On 6/26/02, Judge Cronin sentenced Mr. Wash-

ington to the following: an aggregate term of con-

finement of not less than nine (9) months, nor

more than eighteen (18) months on No. 4373-01

for Criminal Attempt and Unlawful Restraint; an

aggregate term of confinement of not less than

nine (9) months, nor more than eighteen (18)

months on No. 4376-01 for Terroristic Threats;

an aggregate term of confinement of not less

than fifty-four (54) months, nor more than one

hundred eight (108) months on No. 4145-01 for

Robbery and Robbery of a Motor Vehicle.

Petitioner appealed to the Superior Court of

Pennsylvania, which denied his consolidated ap-

peals on 1/14/04 from the three jury verdicts.

Petitioner filed a Petition for Allowance of Appeal

to the Pennsylvania Supreme Court, which was

denied on 7/13/04.

William E. Washington was incarcerated in vio-

lation of law, and subjected to cruel and unusual

punishment, since after his arrest he was held

incommunicado for a period of 13 days and in

solitary confinement for a period of 23 days.

The Petitioner’s Constitutional rights have been

violated for the following reasons:

(a) he has been incarcerated without due process

and in violation of the Constitution of the

(b)

(c)

App. 24

United States, since the trial Court did no

allow defense counsel to play a tape recordin;

between Mr. Washington, the complainan

and his father, which was exculpatory;

he was incarcerated without due proces

and in violation of the Constitution of th

United States, because the arrest an

search warrants executed against Mr. Wask

ington were invalid, since they were nc

signed by the issuing authority and ther

was no expiration date;

the trial Court allowed the amendment «

criminal charges one day before the tria

and different charges were alleged.

WHEREFORE, the Court is requested to grant a

immediate hearing on the request of Mr. Washington for

Writ of Habeas Corpus terminating his incarceration, or i

the alternative, granting him a new trial.

Respectfully Submitted,

/s/ Will C. Reil

WILLIAM C. REIL, ESQUIRE

Attorney for Petitioner

10/13/04

App. 25

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-4378

WILLIAM E. WASHINGTON,

Appellant

A

JAMES GRACE, SUPERINTENDENT;

THE DISTRICT ATTORNEY OF THE COUNTY

OF DELAWARE COUNTY; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

D.C, Civil No. 04-cv-04812

District Judge: The Honorable J. Curtis Joyner

Present: SCIRICA, Chief Judge, SLOVITER, ROTH,

McKEE, BARRY, AMBRO, FUENTES, SMITH,

VAN ANTWERPEN, and NYGAARD,* Circuit Judges

SUR PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC

The petition for rehearing en banc filed by Appellant

having been submitted to the judges who participated in

* Limited to panel rehearing only.

App. 26

the decision of this Court, and to all the other availabl

circuit judges in active service, and a majority of th

circuit judges of the circuit in regular active service no

having voted for rehearing by the court en banc, th

petition for rehearing en banc is DENIED.

BY THE COURT:

/s/ Maryanne Trump Barry

Circuit Judge

Dated: February 3, 2006

CMC/cc: William C. Real, Esq.

Louis G. Stesis, Esq.

App. 27

Commonwealth of Pennsylvania APPLICATION FOR

SEARCH WARRANT

AND AUTHORIZATION

[LOGO]

COUNTY OF Delaware

Docket Number Police Incident

(Issuing Authority): Number:

CR-112-01 20010806M0050 —— beeneiee

Det Sgt David Yeadon Police

M. Splain Department 610-623-1500 08/12/2001

AFFIANT NAME AGENCY PHONE NUMBER DATE OF

APPLICATION

IDENTIFY ITEMS TO BE SEARCHED FOR AND SEIZED (Be as specific

as possible):

Any and all firearms, a pack of Newport cigarettes,

electronic pager, a red baseball cap, red jersey with the

#27 on the front, blue jeans, black wrist watch, gray sweat

shirt, gray sweat pants, a black and red #3 Philadelphia

76ers jersey and a SEPTA Transpass.

SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSON TO BE

SEARCHED (Street and No., Apt. No., Vehicle, Sale Deposit

Box, etc.):

1059 Serrill Avenue Yeadon, PA 19050, Two story twin

home, brick front.

NAME OF OWNER, OCCUPANT OR POSSESSOR OF SAID PREMISES

TO BE SEARCHED (If proper name is unknown, give alias

and/or description):

William F. Washington & William Echelon Washington

VIOLATION OF (Describe product or DATE(S) OF VIOLATION:

specify statute): 7/28,8/4,8/7/2001

901(3702), 901(2902), 901(2901),

2701, 2705, 2706, 907, 908 & 6106

App. 28

() Warrant Application Approved by District Attorney -

DA File No. ___

(if DA approval required per Pa.R.Crim.P. 2002A witl:

assigned File No. per Pa.R.Crim.P. 107)

C) Additional Pages Attached (Other than Affidavit 0;

Probable Cause)

&] Probable Cause Affidavit(s) MUST be attached (unless:

sealed below) Total number of pages: 3

TOTAL NUMBER OF PAGES IS SUM OF ALL

APPLICATION PROBABLE CAUSE AND CONTINUATION PAGES

EVEN IF ANY OF THE PAGES ARE SEALED

The below named Affiant, being duly sworn (or affirmed

before the issuing Authority according to law, deposes an

says that there is probable cause to believe that certai:

property is evidence of or the fruit of a crime or is contra

band or is unlawfully possessed or is otherwise subject t:

seizure and is located at the particular premises or in th

possession of the particular person as described above.

/s/ (Illegible] | Yeadon Police Department 4651

Signature of Agency or Address Badge Number

Affiant if private Affiant

Sworn to and subscribed before me this 12th day of Au;

0149 __. Mag. Dist. No. 32-2-40

/s/ (Ilegible] 21 Bartram Ave. Glenolden, Pa. (SEAL)

Signature of Office Address

Issuing Authority

SEARCH WARRANT WHEREAS, facts have been sworn to o

TO LAW ENFORCE affirmed before me by written affide

MENT OFFICER: vit(s) attached hereto from which I hav

found probable cause, I do authorize yo

to search the premises or person de

scribed, and to seize, secure, inventor

and make return according to the Penr

sylvania Rules of Criminal Procedure.

App. 29

™ This Warrant shall be served as soon as practicable

and shall be served only between the hours of 6AM to

10PM but in no event later than:*

| This Warrant shall be served as soon as practicable

and may be served any time during the day or night

but in no event later than:**

M. o'clock 19

* The issuing authority should specify a date not later

than two (2) days after issuance. Pa.R.Crim.P. 2005(d).

** If the issuing authority finds reasonable cause for

issuing a nighttime warrant on the basis of additional

reasonable cause set forth in the accompanying affida-

vit(s) and wishes to issue a nighttime warrant, then

this block shall be checked. Pa.R.Crim.P. 2005(g).

Issued under my hand this 12th day of Aug 0149 ___ at

10:00 A M. o’clock.

/s/ (Iegible} 32-2-40 2014 (SEAL)

Signature of Mag. Dist. or Date Commission

Issuing Authority Judicial Dist. No. Expires:

Title of Issuing Authority:

M District Justice LJ Common Pleas Judge D) ___

Oj) For good cause stated in the affidavits(s) the Search War-

rant Affidavit(s) are sealed for ___ days by my certification

and signature. (Pa.R.Crim.P. 2011)

(Date) (SEAL)

Signature of Issuing Authority (Judge of the Court of

Common Pleas or Appellate Court Justice or Judge).

TO BE COMPLETED BY THE ISSUING AUTHORITY