Abu-Jamal v. Horn, CIVIL ACTION NO. 99-5089 (E.D. Pa. 12/18/2001)

Decision Date18 December 2001
Docket NumberCIVIL ACTION NO. 99-5089.
PartiesMumia Abu-Jamal, Petitioner, v. Martin Horn, Commissioner, Pennsylvania Department of Corrections, Et Al., Respondents.
CourtU.S. District Court — Eastern District of Pennsylvania
Memorandum and Order

WILLIAM H. YOHN, JR., District Judge.

Mumia Abu-Jamal ("petitioner") seeks a writ of habeas corpus. He was arrested on December 9, 1981 and subsequently charged with the murder of Philadelphia Police Officer Daniel Faulkner. Following a much-publicized jury trial, petitioner was convicted and sentenced to death in early July, 1982. Having unsuccessfully sought relief on direct appeal to the Supreme Court of Pennsylvania, petitioner pursued relief in Pennsylvania post-conviction proceedings. Additional hearings were conducted and additional evidence presented to the Court of Common Pleas of Philadelphia County ("PCRA court"). That court denied petitioner relief. Following an appeal to the Supreme Court of Pennsylvania, and two additional evidentiary hearings before the PCRA court ordered by the state supreme court, the Supreme Court of Pennsylvania affirmed the denial of petitioner's PCRA petition. The United States Supreme Court denied review, and petitioner filed this action seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254.

Jamal1 advances twenty-nine distinct claims, several of which contain numerous, unnumbered subparts. He separately has moved for an evidentiary hearing and/or discovery on some claims and for this court to wholly set aside as unreasonable the factual determinations of the state courts. The District Attorney for Philadelphia County has opposed the petition generally, as well as each motion.

The first twenty of petitioner's twenty-nine claims address alleged constitutional defects in the guilt phase of his trial. I have afforded each of these assertions careful review, yet upon considered analysis of petitioner's contentions I conclude that none of them are persuasive.

Accordingly, Jamal's petition will be denied as to these claims, and a new trial will not be granted. The next eight claims advanced by petitioner concern alleged constitutional violations effected during the penalty phase of his trial. Upon considering the body of relevant precedent in general, and the holdings of the United States Supreme Court in Mills v. Maryland, 486 U.S. 367 (1988) and Boyde v. California, 494 U.S. 370 (1990) and of the United States Court of Appeals for the Third Circuit in Banks v. Horn, 2001 WL 1349369 (3d Cir. Oct. 31, 2001) and Frey v. Fulcomer, 132 F.3d 916 (3d Cir. 1997) in particular, I am compelled to conclude that petitioner's twenty-fifth claim is meritorious. As explained more fully, infra, when the jury instructions and verdict sheet employed in Jamal's case are considered, it becomes apparent that there is a "reasonable likelihood that the jury has applied the . . . instruction [and form] in a way that prevents the consideration of constitutionally relevant evidence," Boyde, 494 U.S. at 380, regarding the existence of mitigating circumstances (i.e., those weighing against the imposition of the death penalty). Accordingly, the petition will be granted as to this claim. The balance of petitioner's eight claims relating to the sentencing phase of his trial consequently are rendered moot, and are not reached by the court. Petitioner's twenty-ninth claim concerns alleged constitutional violations stemming from his state court post-conviction proceedings. I conclude that this claim is unmeritorious.2


On December 9, 1981, on Locust Street between 12th and 13th Streets in center city, Philadelphia, Officer Faulkner pulled over a vehicle driven by William Cook, petitioner's brother. See PCRA Op. ¶ 12. Faulkner called in, by radio, for backup. Cook exited his vehicle and scuffled with Faulkner. See id. ¶ 13. Seeing the altercation, petitioner ran to the scene from a parking lot across the street. See id. ¶ 14. As petitioner approached Faulkner, Jamal shot Faulkner in the back. See id. While falling, Faulkner fired at petitioner and struck him in the chest. See id. ¶ 15. Petitioner then stood over the fallen Faulkner and fired four more shots, the first of which entered Faulkner's brain between his eyes. See id. ¶ 16. Wounded, petitioner then walked several steps away from the dying officer and dropped down, sitting on the curb. See id. ¶ 17. William Cook remained on the scene standing near the wall of the adjacent building. See id. ¶ 17.

Within one minute of Faulkner's radio call, Officers Robert Shoemaker and James Forbes approached the scene, where a cab driver advised them that an officer had been shot. See id. ¶ 18. Additional officers arrived shortly thereafter. See id. Faulkner was taken to Jefferson Hospital immediately, and later was pronounced dead. See id. ¶ 19. As Shoemaker approached petitioner, petitioner reached for an unidentified object on the sidewalk. See id. ¶ 20. Despite Shoemaker's repeated orders to "freeze," petitioner continued to move toward the object. See id. Drawing closer, Shoemaker identified the object as firearm, and kicked petitioner in the chest to get him away from the gun, and then kicked the gun out of petitioner's reach. See id. As officers carried petitioner to a waiting police van, petitioner resisted arrest by striking and kicking the officers attempting to handcuff him. See id. ¶ 25. As petitioner was being apprehended, Officer Forbes frisked William Cook, who exclaimed "I ain't got nothing to do with this." Id. ¶ 21.

The Commonwealth presented four eye-witnesses at trial. Cynthia White testified that she witnessed petitioner run out of a parking lot on the other side of Locust Street as Officer Faulkner attempted to subdue and handcuff Cook. See id. ¶ 14. Robert Chobert testified that he heard a shot, looked up, saw the victim fall, and then saw petitioner shoot Faulkner in the face. See id. at n. 19 (citing 6/19/82 Tr. at 209-210). Michael Scanlon testified that he witnessed an assailant, whom he could not identify, attack and shoot Faulkner from behind, saw the officer fall, and then saw the assailant stand over the officer and shoot him in the face. See 6/25/82 Tr. at 8.6-8.8. Albert Magliton testified that he heard shots and then saw Faulkner on the ground, and petitioner on the curb. See id. (citing 6/25/82 Tr. at 8-76-8.78). Once Jamal had been subdued, Chobert was escorted to the police van at the scene where he was being held and immediately identified petitioner as the individual who shot Faulkner. See id. ¶ 26. Magliton also identified petitioner as the perpetrator, both at the scene and during the trial. See PCRA Op. at 86-87.

Forbes seized two handguns from within five feet of where petitioner was sitting on the curb following the shooting. See id. ¶ 22. One was a standard police-issue Smith and Wesson .38 caliber Police Special revolver with a six-inch barrel which was registered and issued to Faulkner. See id. ¶¶ 22-23. Faulkner's firearm contained six Remington .38 special cartridges, one of which had been fired. See id. ¶ 23. Ballistic testing later confirmed that the bullet that struck petitioner was fired from Officer Faulkner's revolver. See id. ¶ 15. The second firearm seized was a five-shot Charter Arms .38 caliber revolver with a two-inch barrel, purchased by petitioner on June 27, 1979 and registered to him. See id. ¶¶ 22 & 24. Petitioner's firearm contained five "Plus-P" high-velocity spent bullet shell casings. See id. ¶ 24. Officer Anthony L. Paul, supervisor of the Firearms Identification Unit in the Laboratory Division of the Philadelphia Police Department, testified at trial that the bullet recovered from Faulkner suffered a great deal of mutilation and could not be matched with a specific firearm. See 6/23/82 Tr. at 6.102. Paul also testified that the bullet specimen had eight lands and grooves with a right hand direction of twist which was consistent with a Charter Arms revolver and that, conservatively, there were a million Charter Arms weapons in existence at the time. See id. at 6.168.

Petitioner was taken to Jefferson Hospital for treatment. See id. ¶ 27. Because he refused to walk, he was carried into the emergency room by officers. See id. The officers placed petitioner on the floor of the lobby at the entrance to the emergency room, and while waiting for treatment, petitioner was heard to twice say that "I shot the motherfucker, and I hope the motherfucker dies." See id. ¶ 28. The statement was heard by Priscilla Durham, a security guard on duty at Jefferson Hospital. See id. The statement also was heard by Officer Gary Bell, who responded that "if he dies, you die." See id. Petitioner was then taken into the emergency room for treatment. See id.

On December 15, 1981, Anthony Jackson, Esquire, was appointed as counsel for petitioner. See id. ¶ 4. On January 20, 1982, petitioner was arraigned before the Honorable Paul Ribner, who also handled pretrial matters. See id. ¶¶ 3 & 5.

For the ensuing five months, Jackson prepared for trial thoroughly and intensively. See id. ¶ 61. Nonetheless, on or about May 13, 1982, petitioner sought leave to represent himself. See id. ¶ 63. Judge Ribner permitted petitioner to proceed pro se and appointed Jackson as back-up counsel. See id. ¶¶ 6-7. A trial by jury commenced on June 7, 1982. See id. ¶ 6. Petitioner was uncooperative, hostile, and insisted regularly that John Africa, who was not an attorney, be appointed as counsel. See, e.g., id. ¶¶ 7-8, 10, 65, 68. His conduct caused him to be removed from pro se status for the remainder of the trial. See id. ¶¶ 10, 68. Although petitioner often was physically removed from the courtroom, see id. ¶ 10, the jury was instructed against drawing negative inferences from his removal and Jackson kept petitioner fully informed of the proceedings. See id. ¶¶ 10-11.

During the trial, the Commonwealth presented a number of witnesses, each of whom was...

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