273 F.3d 299 (3rd Cir. 2001), 00-9000, Szuchon v Lehman

Docket Nº:00-9000 and 00-9001
Citation:273 F.3d 299
Party Name:JOSEPH SZUCHON, APPELLEE/CROSS-APPELLANT v. JOSEPH LEHMAN, COMMISSIONER; ANDREW DOMOVICH, WARDEN, STATE CORRECTION INSTITUTION AT PITTSBURGH; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, APPELLANTS/CROSS-APPELLEES
Case Date:November 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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273 F.3d 299 (3rd Cir. 2001)

JOSEPH SZUCHON, APPELLEE/CROSS-APPELLANT

v.

JOSEPH LEHMAN, COMMISSIONER; ANDREW DOMOVICH, WARDEN, STATE CORRECTION INSTITUTION AT PITTSBURGH; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, APPELLANTS/CROSS-APPELLEES

Nos. 00-9000 and 00-9001

United States Court of Appeals, Third Circuit

November 20, 2001

Argued May 24, 2001

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 94-cv-00195E) District Judge: Honorable William L. Standish

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Amy Zapp, Esq. [argued] Office of Attorney General of Pennsylvania Department of Justice Strawberry Square, 15th Floor Harrisburg, PA 17120, for Appellants/Cross Appellees.

Caroline M. Roberto, Esq. [argued] 1600 Law & Finance Building, 5th Floor Pittsburgh, PA 15219, and Lynn A. Ellenberger, Esq. 1330 West Huron Street, Suite 2 Chicago, IL 60622, for Appellee/Cross-Appellant.

Before: Rendell, Greenberg and Cowen, Circuit Judges.

OPINION OF THE COURT

Rendell, Circuit Judge.

We are asked to review the District Court's order granting in part and denying in part Joseph Szuchon's petition for a writ of habeas corpus pursuant to 28 U.S.C. S 2254. A Pennsylvania jury convicted Szuchon of first-degree murder of his former girlfriend, Judy Snyder, during a nighttime rampage which we describe in detail below. The jury then sentenced him to death. Szuchon asserted numerous claims of error in his habeas petition in connection with both the trial and sentencing.

The District Court denied relief on all trial phase claims, and Szuchon cross-appeals from that judgment. For the reasons set forth below, we will grant Szuchon a certificate of appealability for his claims regarding the admission of certain psychiatric evidence in violation of Estelle v. Smith, 451 U.S. 454 (1981), but we will affirm the District Court's denial of relief. A certificate of appealability will be denied on the remaining trial phase claims.

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As to the sentencing phase, the District Court held that the jury instructions regarding the mitigating circumstances violated the holding of Mills v. Maryland, 486 U.S. 367 (1988), and it granted the writ on the condition that the state court conduct a new sentencing proceeding or impose a term of life imprisonment. The Commonwealth appeals, arguing, inter alia, that the Mills claim is procedurally defaulted because Szuchon failed to exhaust his Mills claim in state court, and state remedies are now foreclosed. Although we conclude that the Commonwealth may have waived this defense by failing to raise it in its answer to the habeas petition, we will address the question of whether the claim is procedurally defaulted. We conclude that the Mills claim is defaulted and barred from review on the merits given Szuchon's inability to show cause or a fundamental miscarriage of justice. Consequently, Szuchon cannot pursue habeas relief based on Mills. Szuchon, however, also cross-appeals from the denial of his remaining sentencing claims, one of which was that the state court improperly permitted the exclusion at voir dire of six prospective jurors who merely voiced opposition to the death penalty. We hold that the exclusion of the prospective jurors violated Szuchon's Sixth and Fourteenth Amendments rights under Witherspoon v. Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412 (1985), and thus a new sentencing is required. Accordingly, we will affirm, on other grounds, the District Court's decision to grant the writ in connection with Szuchon's sentencing.

I. BACKGROUND

We borrow the factual recitation from one of the Pennsylvania Supreme Court's opinions in this matter:

The events culminating in an evening of terror on April 14, 1981 for three young people in Erie County began with the breakdown of [Szuchon]'s relationship with Judy Lynn Snyder and his inability to deal with that breakdown. [Szuchon] and Ms. Snyder had been involved in a stormy relationship over a period of several years, including periods of time in which they lived together in California and in Philadelphia. Toward the end of 1980, Ms. Snyder left [Szuchon] in Philadelphia and returned to her parents' home in Erie.

Refusing to accept that the relationship was over, [Szuchon] began to harass Ms. Snyder with telephone calls at her parents' home. [Szuchon]'s love for Judy Snyder progressively transformed to hatred and he began to tell various people how he was going to kill her with a Winchester rifle or cut her from ear to ear -- if he could not have her, no one would. Eventually, [Szuchon] returned to Erie to pursue Ms. Snyder.

In Erie, [Szuchon] continued to harass Judy Snyder at her parents' home, with Erie police being dispatched to the home on two occasions to remove [Szuchon] from the premises. [Szuchon] also continued to tell others that he intended to kill Ms. Snyder as well as her "boyfriend." Finally, on April 14, 1981, [Szuchon] purchased a Winchester rifle from Gorenflo's Gunsmith in Erie, purchased bullets from the Erie Sport Store, loaded the rifle and drove to the Bottom Line, a restaurant/tavern where Judy Snyder was working.

[Szuchon] parked in the lot of the Bottom Line and read a newspaper while he waited for Ms. Snyder to get off work. When her shift was finished, she and two friends, Aldo DeSanto and Mary Sadowski, left the Bottom Line to go to

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Judy's car, whereupon the three were confronted by [Szuchon], holding the Winchester and stating "If you all don't get into the car, I'll blow your fucking heads off."... All four then got in Ms. Snyder's car with Judy driving, Mary in the front passenger seat, and Aldo in the back seat with [Szuchon].

[Szuchon] then directed Ms. Snyder to drive to an isolated area, the state game lands. As they drove, [Szuchon] kept the gun pointed at them and, at one point, told the three to "make your act of contrition or say your confessions if you want to go to heaven because at the end of this night I'm surely going to hell."... Mary Sadowski, certain she was going to die at [Szuchon]'s hands, jumped from the moving car (at 50 m.p.h.) and escaped.... Somehow she avoided serious injury, ran to a house and called the police.

[Szuchon] ordered Ms. Snyder to continue to drive to the game lands. Upon arrival there (the drive took approximately 15-20 minutes), he ordered her and Mr. DeSanto to walk into a corn field. The latter took several steps into the field, but Ms. Snyder refused. When she persisted in refusing to go on, [Szuchon] aimed the gun at Ms. Snyder, she turned, and [Szuchon] shot her in the back. Mr. DeSanto jumped to the ground, rolled, then got up and ran. While running, he heard two more shots. He finally reached a farmhouse and the owners called the police.

Shortly thereafter, Pennsylvania State Troopers arrived at the scene and discovered Ms. Snyder's abandoned car, and then located her body. She had been killed by two bullets that had pierced her back from different angles. [Szuchon] was nowhere to be found, and a police manhunt was initiated.

Later that evening, Frederick Pusch was driving his vehicle on an isolated road south of Erie when he encountered [Szuchon] who informed Mr. Pusch that his car had broken down and that he needed to use a phone. Mr. Pusch drove [Szuchon] to Pusch's cottage at Canadohta Lake. While at the cottage, [Szuchon] informed Mr. Pusch that he had just killed his girlfriend and that another girl and a guy had gotten away. The next morning (April 15th), [Szuchon] placed a message with the Erie Police Department requesting that an officer with whom he was acquainted, Detective Richard Runstedler, come to Canadohta Lake so that he could turn himself in. Detective Runstedler and another officer drove to Canadohta Lake and took [Szuchon] into their custody at approximately 12:15 p.m. on April 15, 1981.

.. [Szuchon] was taken to the state police barracks where he was given his Miranda warnings, which he waived. [Szuchon] then confessed to kidnaping the three victims at gunpoint, intending to take them to the country to kill them. [Szuchon] stated that he intended to kill them because Judy would not return to him as his girlfriend, and because he perceived Aldo as "cutting in on him" and felt that Mary was meddling and interfering with his relationship with Judy. [Szuchon]'s version of the events was essentially consistent with the testimony of the two kidnap victims. [Szuchon] told Trooper Povlick that he told Ms. Snyder "how much he loved her, and at this point she laughed and turned her back and he shot her."... [Szuchon] also informed Trooper Povlick that he had, the day of the homicide/kidnaping, ingested a "couple lines" of cocaine and "five to six quaalude tablets."... No evidence of drugs or paraphernalia were found on [Szuchon].

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Commonwealth v. Szuchon, 484 A.2d 1365, 1368-69 (Pa. 1984).

In October 1981, a jury in the Court of Common Pleas for Erie County convicted Szuchon of first-degree murder, three counts of kidnaping, two counts of terroristic threats, and two counts of reckless endangerment. The jury acquitted Szuchon on a charge of attempted murder of Aldo DeSanto. A sentencing proceeding was conducted before the same jury shortly after the verdict. Neither the Commonwealth nor Szuchon introduced new evidence at sentencing. The Commonwealth argued the existence of two statutory aggravating circumstances: Szuchon committed the killing while in perpetration of a felony (kidnaping), and he knowingly created a grave...

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