Fahy v. Horn, CIVIL ACTION No. 99-5086 (E.D. Pa. 8/26/2003), CIVIL ACTION No. 99-5086.
| Decision Date | 26 August 2003 |
| Docket Number | CIVIL ACTION No. 99-5086. |
| Parties | HENRY FAHY, v. MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; CONNER BLAINE, JR., Superintendent of the State Correctional Institution at Greene; and JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rockview. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
The procedural history of this capital conviction is extensive and complex. Petitioner has filed numerous appeals and petitions for post-conviction relief2 in the state system, four of which resulted in published opinions. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986) (); Commonwealth v. Fahy, 537 Pa. 533, 645 A.2d 199 (1994) (); Commonwealth v. Fahy, 549 Pa. 159, 700 A.2d 1256 (1997) (); Commonwealth v. Fahy, 1999 Pa. LEXIS 3004, 737 A.2d 214 (1999) ().3 In addition, this petition for a writ of habeas corpus was addressed previously in federal court: first, in an unpublished order by Chief Judge Giles; and next, in a published opinion by the Court of Appeals affirming that order. Fahy v. Horn, 240 F.3d 239, 246 (3d Cir. 2001) ().
On January 24, 1983, Henry Fahy was tried before a jury with the Honorable Albert F. Sabo, Court of Common Pleas of Philadelphia County, presiding. The prosecution presented evidence that on January 9, 1981, Fahy entered the home of twelve year-old Nicoletta ("Nicky") Caserta, a neighbor's daughter, had forced sexual intercourse with her and dragged her to the basement. Nicky's corpse was discovered later that day by her stepfather, Paul Piccone. Police investigators testified the child's body had a T-shirt and an electrical cord wrapped around the neck, multiple tears to the vagina and rectum, and eighteen stab wounds to the chest. The jury, returning guilty verdicts on all counts, convicted Fahy of first-degree murder, rape, burglary and possession of instrument of crime.
The jury then conducted a separate sentencing hearing. In determining that Fahy should receive a sentence of death rather than life imprisonment, the jury found the following three aggravating circumstances: 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). Two mitigating circumstances were found: 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).
Sentencing was deferred pending the filing and disposition of post-trial motions which were argued before the court en banc, and denied on November 2, 1983. Fahy was sentenced to death for the homicide conviction, ten to twenty years for the burglary conviction, two and one-half to five years for the weapons conviction, and ten to twenty years for the rape conviction.
On appeal, the sentence was affirmed. See Fahy-1. The Pennsylvania Supreme Court held: there was sufficient evidence to support the conviction; the evidence supported the finding that his confession had been voluntary and Fahy had knowingly and intelligently waived his rights; prosecutorial misconduct did not result from Fahy's unsolicited testimony regarding incarceration for former crimes; the phrase "significant history" in the death penalty statute was not unconstitutionally vague or overbroad; the jury's finding of substantial mental impairment did not preclude the death penalty; and, death was not a disproportionate punishment for the crimes of conviction. Id.
Fahy filed a petition under Pennsylvania's Post Conviction Hearing Act, 42 Pa.C.S. § 9541 () ("first PCRA petition"), but he did not pursue the petition, and it was dismissed without prejudice in 1987.
In 1992, the Governor of Pennsylvania issued Fahy's death warrant. Fahy again sought relief ("second PCRA petition"); he obtained a stay of execution and remand from the Pennsylvania Supreme Court to the Philadelphia Court of Common Pleas to consider whether trial counsel had been ineffective. On remand, Judge Sabo affirmed the death sentence, and Fahy appealed, see Fahy-2. On appeal, the Pennsylvania Supreme Court held that trial counsel's failure to request a definition of the term "torture" for the jury did not constitute ineffective assistance. The United States Supreme Court denied certiorari in January, 1995, and a second death warrant was signed in May, 1995. On July 7, 1995, the Pennsylvania Supreme Court granted a second stay to permit Fahy thirty days to file a third PCRA petition. In that timely filed petition, Fahy argued that he suffered from a mental illness and trial counsel should have presented expert testimony to prove his illness was a mitigating circumstance. He also claimed a competency hearing should have been held before the penalty phase of his trial.4 After a hearing, the PCRA court concluded, in part, that the jury had in fact found relevant mitigating circumstances regarding both mental disturbance and substantial impairment even in the absence of an expert opinion. Judge Sabo denied the petition; Fahy appealed again to the Pennsylvania Supreme Court.
While that appeal was pending, Fahy moved to waive his rights to all appellate proceedings and collateral relief. Fahy's counsel then filed a motion asking the PCRA court to determine whether or not he was competent to waive rights. The Pennsylvania Supreme Court remanded to the PCRA court to determine whether Fahy fully understood the consequences of a waiver of all appellate and collateral relief. On August 9, 1996, Fahy appeared before the PCRA court and confirmed his desire to waive all appeals and collateral relief. The PCRA court found him competent to do so.
On appeal to the Pennsylvania Supreme Court, Fahy's counsel alleged that Fahy no longer wished to waive his rights.5 On September 17, 1997, the Pennsylvania Supreme Court, unanimously affirming Judge Sabo, held that Fahy had knowingly renounced all collateral and appellate proceedings in the August, 1996 colloquy. See Fahy-3. An application for reargument filed by Fahy's counsel was denied.
On November 12, 1997, Fahy's counsel filed a fourth PCRA petition. The PCRA court dismissed this petition because it was time-barred and failed to set forth a prima facie case that a miscarriage of justice had occurred. The Pennsylvania Supreme Court, affirming the petition was untimely under the Post Conviction Relief Act, noted the Court lacked jurisdiction to review it. See Fahy-4. The decision was based on the November 17, 1995, PCRA amendment requiring all PCRA petitions "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ." 42 Pa.C.S. § 9545(b)(1).
Another warrant setting Fahy's execution for October 19, 1999, was signed, but six days prior to the scheduled date, Fahy filed a motion for a stay of execution and an amended habeas petition in federal court. Chief Judge Giles, acting as emergency judge, granted a 120 day stay, and determined that the amended petition should not be treated as a successive petition and despite the one-year statute of limitation under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), the petition was subject to both statutory and equitable tolling.6 On appeal by the Commonwealth, the court rejected statutory tolling but affirmed the application of equitable tolling. See Fahy v. Horn, 240 F.3d 239, 246 (3d Cir. 2001). The United States Supreme Court denied certiorari, and the habeas petition is before this court.
Before considering the merits of Fahy's petition, it is necessary to address threshold issues of jurisdiction.
Fahy wrote to the state trial court in November, 1991, before the Governor had issued a death warrant; he asked the judge not to accept any last-minute petitions on his behalf unless filed by Fahy himself. Fahy stated that he understood the issues in his case and that those issues should be raised only "if I so choose." Shortly thereafter, following the Governor's signing of the first execution warrant, Fahy filed his second PCRA petition, and his execution was stayed.
In May, 1995, the Governor signed a second execution warrant. On December 5, 1995, during the pendency of an appeal from the denial of his third PCRA petition, Fahy filed a handwritten, pro se petition requesting the PCRA court to allow him to waive all collateral proceedings and withdraw any appeals in order for his death sentence to be carried out "at once." See December 5, 1995, Motion Respectfully Requesting the Right to Waive All Collateral Proceedings; and to Withdraw Any Appeals, That Execution May Be Scheduled and Thereafter Administer At Once.
On March 22, 1996, Fahy's attorneys, arguing public interest requires a psychiatric evaluation whenever a defendant decides to waive his collateral and appellate rights in a capital case, filed a motion requesting that the PCRA court determine Fahy's competency. Following the...
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