516 F.3d 169 (3rd Cir. 2008), 03-9008, Fahy v. Horn

Docket Nº:03-9008, 03-9009.
Citation:516 F.3d 169
Party Name:Henry FAHY v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; Conner Blaine, Jr., Superintendent of the State Correctional Institution at Greene; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Appellants Henry Fahy, Appellant v. Martin Horn, Commissioner, Pennsylvania Department of Corre
Case Date:January 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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516 F.3d 169 (3rd Cir. 2008)

Henry FAHY

v.

Martin HORN, Commissioner, Pennsylvania Department of Corrections; Conner Blaine, Jr., Superintendent of the State Correctional Institution at Greene; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Appellants

Henry Fahy, Appellant

v.

Martin Horn, Commissioner, Pennsylvania Department of Corrections; Conner Blaine, Jr., Superintendent of the State Correctional Institution at Greene; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.

Nos. 03-9008, 03-9009.

United States Court of Appeals, Third Circuit.

January 24, 2008

Argued Oct. 16, 2007.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa, No. 99-cv-05086) District Judge: Honorable Norma L. Shapiro

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Marilyn F. Murray (Argued), Thomas W. Dolgenos, Office of District Attorney, Three South Penn Square, Philadelphia, PA, for Martin Horn, et al.

Matthew C. Lawry, Billy H. Nolas (Argued), Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, for Henry Fahy.

Before: AMBRO, SMITH, and COWEN, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Twenty-seven years after the murder of twelve-year-old Nicoletta Caserta, the case of Henry Fahy returns to this Court, and possibly not for the last time. The Commonwealth of Pennsylvania ("Commonwealth") appeals from the order of the District Court granting Fahy's Petition for Writ of Habeas Corpus, which vacated his death sentence. Fahy cross-appeals from the District Court's denial of his guilt phase claims. Today, we vacate the judgment of the District Court to the extent that the writ was granted on the basis of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), 1 and we remand

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the matter to the District Court to consider sentencing-phase issues which that court did not address at the time it granted habeas relief. We affirm the District Court's determination that the guilt phase claims do not warrant habeas relief.

I.

The factual background and procedural history that follow are lengthy and complex.

The body of Nicky Caserta was found by her stepfather on the late afternoon of January 9, 1981. The twelve-year-old was found sprawled across the floor of her basement with a t-shirt and an electrical cord wrapped tightly around her neck, multiple tears to the vagina and rectum, and eighteen stab wounds to the chest area. A medical examiner confirmed these findings and ruled her death a homicide.

On January 29, 1981, police interviewed Fahy's girlfriend, Rosemarie Kelleher, who lived across the street from Nicky Caserta and was also her aunt. Fahy lived with Kelleher. The interview of Kelleher concerned an alleged sexual assault by Fahy upon her six-year old son. She called Fahy and requested that he come down to the station for questioning. He arrived shortly thereafter. Police then questioned Fahy and advised him that they had two warrants for his arrest on charges of rape. He was subsequently placed under arrest. After his arrest, Fahy was questioned regarding the rape and murder of Nicky Caserta. He ultimately gave the police a detailed confession and led them to the sewer where he had disposed of the knife used to kill her. Fahy subsequently denied making statements to the police, but his motion to suppress those statements was denied.

On January 24, 1983, Fahy was tried by a jury for the rape and murder of Nicky Caserta, with the Honorable Albert F. Sabo, Court of Common Pleas of Philadelphia County, presiding. During the guilt phase of the proceeding, the jury heard evidence that led to guilty verdicts on all counts--first-degree murder, rape, burglary, and possession of an instrument of crime.

The proceedings then entered the penalty phase. The prosecution, in seeking the death penalty, presented evidence intended to support three aggravating circumstances under Pennsylvania's death penalty statute: 1) "The defendant committed a killing during the perpetration of a felony," 42 Pa.C.S. § 9711(d)(6); 2) "The defendant has a significant history of felony convictions involving the use or threat of violence to the person," 42 Pa.C.S. § 9711(d)(9); and 3) "The offense was committed by means of torture," 42 Pa.C.S. § 9711(d)(8). The jury determined that all three aggravating circumstances were present. The defense presented evidence of four mitigating circumstances and the jury found that two were present: 1) "The defendant was under the influence of extreme mental or emotional disturbance," 42 Pa.C.S. § 9711(e)(2); and 2) "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired," 42 Pa.C.S. § 9711(e)(3). The jury determined that Fahy should receive a sentence of death, and on November 2, 1982, Judge Sabo formally imposed the death sentence for the

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murder conviction. 2 On direct appeal, the Pennsylvania Supreme Court upheld the convictions and sentences. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986) ("Fahy 1").

On March 18, 1987, Fahy filed a pro se petition under the Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S. § 9541 (superseded and replaced by the Post Conviction Relief Act ("PCRA") in 1988) concerning his murder conviction as well as his conviction in an unrelated rape case ("PCRA #1"). As a result, the petition was procedurally defective. It was transferred to Judge Sabo, who dismissed it without prejudice to Fahy's right to refile separate petitions. Fahy took no action for four years.

The Governor issued a warrant of execution for Fahy on November 21, 1991. Judge Sabo denied Fahy's application for a stay. On appeal, the Pennsylvania Supreme Court granted a stay of execution and remanded to Judge Sabo pursuant to the PCRA for a hearing to determine whether trial counsel had been ineffective for failing to object to a jury instruction regarding the aggravating circumstance of the killing of another committed by means of torture, which did not provide a definition of the term "torture."3 Judge Sabo denied the PCRA petition ("PCRA #2") and upheld the sentence of death. Fahy appealed. The Pennsylvania Supreme Court affirmed the denial of Fahy's petition on July 1, 1994.

On June 5, 1995, the Governor issued a second death warrant. On July 7, 1995, the Pennsylvania Supreme Court granted a stay of execution to allow Fahy to file another PCRA petition ("PCRA #3").4 This third PCRA petition was filed on August 4, 1995, with a supplemental petition filed on September 12, 1995. Judge Sabo held an evidentiary hearing on the claims raised in PCRA #3 and thereafter denied the petition. Fahy appealed to the Pennsylvania Supreme Court.

While this appeal was pending, Fahy filed a handwritten pro se motion on December 5, 1995, asking the PCRA court to allow him to withdraw his appeal and to waive all collateral proceedings so that his death sentence could be carried out.5Because the Pennsylvania Supreme Court then had jurisdiction over PCRA #3, Judge Sabo forwarded the letter to that Court. On July 17, 1996, the Supreme Court remanded the appeal "for a colloquy to determine whether petitioner fully understands the consequences of his request to withdraw his appeal and to waive all collateral proceedings." Pursuant to the

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remand, on August 2, 1996, Judge Sabo purported to conduct a hearing consistent with the direction from the Supreme Court. At that time, Fahy told Judge Sabo that he desired an additional week to consider his request to waive all collateral proceedings. Judge Sabo granted Fahy the extra time, and during that week Fahy signed a sworn affidavit, prepared by his counsel, stating that he no longer wished to waive his appellate rights, that he wanted to proceed with his appeal, and that he desired continued representation by counsel. However, when Fahy appeared before Judge Sabo on August 9, he stated that he had again changed his mind, i.e., that he did not want to be represented by his attorneys and that he did not want to pursue any further appeals. After asking Fahy several questions, Judge Sabo declared, "All right, Mr. Fahy, I will inform the Supreme Court of Pennsylvania that you were knowingly waiving all your appellate rights and all your PCRA rights."

Twelve days later, Fahy's attorneys advised the Pennsylvania Supreme Court that Fahy was again pursuing his appeal of the denial of PCRA #3 because the alleged waiver was involuntary. On September 17, 1997, the Pennsylvania Supreme Court unanimously affirmed Judge Sabo's determination that Fahy had validly waived his right to all appellate and collateral proceedings. The Court never reached the merits of his appeal from the denial of PCRA #3. Commonwealth v. Fahy, 549 Pa. 159, 700 A.2d 1256 (1997) ("Fahy 3").

Thereafter, on November 12, 1997, Fahy filed a fourth PCRA petition ("PCRA #4"). Judge Sabo dismissed the petition on two grounds: 1) failing to set forth a prima facie case that a miscarriage of justice had occurred; and 2) timeliness. The Pennsylvania Supreme Court affirmed Judge Sabo's order dismissing PCRA #4. Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999) ("Fahy 4").6

Fahy then filed a motion for a stay of execution, together with an amended habeas petition in the District Court. On October 14, 1999, the District Court stayed the execution for a period of 120 days and determined that the amended petition should be...

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