Burno v. Wetzel, CIVIL ACTION NO. 15-06307

Decision Date22 November 2019
Docket NumberCIVIL ACTION NO. 15-06307
PartiesJUNIUS BURNO, Petitioner, v. JOHN E. WETZEL, et al., Respondents.
CourtU.S. District Court — Eastern District of Pennsylvania

PAPPERT, J.

MEMORANDUM

On March 6, 2007, Junius Burno was convicted of two counts of first-degree murder and sentenced to death. The Supreme Court of Pennsylvania affirmed Burno's conviction and sentence on February 22, 2017. Commonwealth v. Burno, 154 A.3d 764 (Pa. 2017). He timely filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and later moved to supplement, or in the alternative, amend the Petition. For the reasons set forth below, the Court denies both the Motion to Supplement and the Petition.

I
A

The Supreme Court of Pennsylvania explained in detail the case's factual and procedural history. See Burno, 154 A.3d 764. On April 13, 2003, two men entered an apartment in Allentown, Pennsylvania, where they shot and killed Carlos Juarbe and Oscar Rosado. Id. at 771. When police officers arrived at the scene, a witness told them that she saw two men flee the area in a "red or maroon compact car." Id. at 775. The investigation that followed led to the arrest of co-defendant Terrence Bethea, who implicated Burno in the shootings. Id. at 771. The police then learned that Burno owned a car matching the one described by the witness. Id. at 775. Burno was arrested on September 12, 2003. Id. at 771.

Burno retained Glennis Clark as his counsel, and on September 24, 2003, Clark arranged for a meeting with Lehigh County Assistant District Attorney Maria Dantos and Allentown Police Department Detectives Wayne Simock and John Miller at the District Attorney's Office. Id. At that meeting, ADA Dantos and Detective Simock explained to Burno the rules applicable to his anticipated cooperation: in exchange for Burno telling the truth and agreeing to testify against co-defendant Bethea, ADA Dantos would not seek the death penalty against Burno. Id. If the negotiations fell through, however, statements made by Burno would be used against him at trial. Id. The parties agreed to these terms, and Burno then spoke about the murders for two hours during an unrecorded conversation. Id.

After the meeting, Detectives Simock and Miller took Burno to the police station to record his statement. Id. at 772. Once there, Detective Simock read Burno his Miranda warnings, after which Burno repeated the statements he had made earlier in the day—this time tape recorded by the police. Id. Burno claimed that he drove Bethea to Juarbe's apartment to trade guns for drugs, but Burno maintained that Bethea was the only person to ever enter the apartment where Juarbe and Rosado were killed. Id.

The detectives and prosecutor did not believe Burno's statement, so ADA Dantos and Clark agreed to administer a polygraph examination to Burno. Id. On September26, 2003, Officer Keith Morris met with Burno, read him his Miranda rights and administered the polygraph. Id. Clark was not present for the test. Id. Immediately after the exam, Officer Morris told Burno that he had failed the polygraph, and Burno reacted by stating that no one could save him now. Id. In response, Officer Morris told Burno that telling the truth is how a person in Burno's position could help himself. Id.

Burno then asked to speak with his attorney, but Clark was unavailable. Id. ADA Dantos went to the interview room—where Burno was upset and crying—to tell him that authorities were trying to contact Clark. Id. Burno apologized to ADA Dantos for lying, and in response, she told Burno that because he was not truthful, the parties no longer had a deal to forego the death penalty; however, if Burno remained truthful from that point on, ADA Dantos said she would reconsider plea discussions. Id.

After this conversation, ADA Dantos reached Clark on the phone and he agreed to come to the police station. Id. In the meantime, Clark authorized the detectives to question Burno outside of his presence, reasoning that Burno could not, given his lies to that point, damage himself any further. Id. Burno then met with Detectives Simock and Joseph Effting, who read him his Miranda warnings. Id. Burno subsequently admitted that he was inside the apartment at the time of the murders, got into a struggle with Rosado and shot Rosado with a 9 mm handgun. Id.

Clark arrived at the police station after Burno's confession and knocked on the interview room door. Id. at 772-73. He sat down, spoke with Burno and the interview continued. Id. at 773. The second half of the interview consisted of the detectives reviewing much of what Burno had already stated, and he again admitted to participating in the murders. Id. At the end of the interview, Detective Simockreminded Burno that in order for the prosecution to consider dropping the death penalty, Burno's statements must be truthful and he was still required to testify against Bethea at a preliminary hearing. Id. On the day before Bethea's hearing, however, Burno refused to testify against Bethea. Id. As a result, ADA Dantos informed Burno she would seek the death penalty. Id.

Prior to trial, Burno filed several motions to suppress statements made to the police. Id. Burno claimed, among other things, that (1) his arrest warrant lacked probable cause and any subsequent statements were fruit of the poisonous tree; (2) his statements during the polygraph test were coerced by Officer Morris; (3) his statements were inadmissible because they took place during plea negotiations; and (4) his September 26, 2003 statements were involuntary because Clark was not present for the first part of the interview and the second part remained tainted by his attorney's initial absence. Id. After holding an evidentiary hearing, the trial court denied all but one of Burno's motions to suppress, excluding only the first part of the September 26 confession that took place outside the presence of counsel. Id.

Burno then filed a motion seeking assignment of a different prosecutor based on his plan to call ADA Dantos as a material witness regarding the voluntariness of his confessions. Id. The trial court granted the motion in part by relegating ADA Dantos to second chair. Id. The Commonwealth moved for reconsideration, which the trial court denied. Id. The Commonwealth then successfully appealed the issue to the Superior Court, and ADA Dantos was reinstated as lead prosecutor. Id. at 774.

The pendency of the appeal delayed the trial for approximately one year. Id. Because of the delay, Burno sought the dismissal of all charges on the ground that hewas denied the right to a speedy trial pursuant to Pennsylvania Rule of Criminal Procedure 600, which generally requires a trial to commence within 365 days from the filing of a criminal complaint. Id. The trial court denied the motion after holding an evidentiary hearing, and Burno's jury trial took place. Id.

At trial, the jury heard evidence relating to Burno's guilt from multiple independent sources. In addition to the inculpatory statements that Burno gave to the police on September 24 and 26, 2003, the jury heard testimony from David Rawlins, a jailhouse informant who testified pursuant to a plea deal. Id. at 776. According to Rawlins, Burno told him that he entered the apartment after Rosado shot Bethea, and that upon entering, Burno shot Rosado, who was on his knees pleading for his life. Id. The jury also heard recordings of Burno's phone calls from the Lehigh County Jail, in which he admitted to his ex-wife Kimberly and acquaintance James Alford that he was involved in the shootings. Id. During the phone calls, Burno said that he shot one of the victims multiple times, had a 9 mm handgun, and "deaded some people." Id. at 787. He also placed himself at the murder scene and talked about the guns he disposed of after the shootings. Id. at 788. Moreover, Burno attempted to get Kimberly to contact Bethea so that the two men could get their stories straight. Id.

The jury also heard testimony from forensic pathologists, a ballistics expert, and Burno himself. Id. at 776. The forensic pathologist testified that Rosado died of a gunshot wound to the head, and based on the bullet trajectory, opined that the gunman was above Rosado at the time of the shooting. Id. After hearing all the evidence, the jury convicted Burno of two counts of first-degree murder and recommended a death sentence, id. at 777, which the trial court imposed. Id. at 788.

After the conviction and sentence, Burno's trial and penalty phase attorneys moved to withdraw as counsel. The court granted the motion and appointed a new attorney to represent Burno on appeal. Id. at 777-78. His new counsel filed post-trial motions raising, among other things, trial counsel's ineffectiveness. Id. at 778. Even though Pennsylvania law typically requires ineffectiveness claims to be raised on collateral review, the trial court nevertheless considered Burno's argument, found that trial counsel was ineffective, and granted him a new trial. Id. The Commonwealth appealed the decision directly to the Supreme Court of Pennsylvania and Burno filed a protective cross-appeal in response. Id.

The Supreme Court, after finding the trial evidence sufficient to sustain the verdict, considered the ineffective assistance of counsel claims. Id. The court noted that at the time the trial court considered the IAC claims, it did not have the benefit of Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Burno, 154 A.3d at 778. In Holmes, the Supreme Court of Pennsylvania held that trial courts "should entertain claims of ineffective assistance of counsel on direct review only if there is good cause shown, and 'the unitary review so indulged is preceded by the defendant's knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence.'" Burno, 154 A.3d at 778-79 (quoting Holmes, 79 A.3d at 564). Consistent with Holmes, the Supreme Court dismissed Burno's ineffective assistance of counse...

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