Fisher v. Rozum
| Decision Date | 03 August 2011 |
| Docket Number | No. 10-2764,10-2764 |
| Parties | LAWRENCE FISHER, Appellant v. GERALD L. ROZUM; DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court
for the Western District of Pennsylvania
BEFORE: BARRY, AMBRO and COWEN , Circuit Judges
Lisa B. Freeland, Esq. (Argued)
Office of the Public Defender
Counsel for Appellant
Ronald M. Wabby, Jr., Esq. (Argued)
Office of the District Attorney
Counsel for Appellees
Lawrence Fisher, who is currently serving a life sentence for a Pennsylvania first-degree murder conviction, appeals from the order of the United States District Court for the Western District of Pennsylvania dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability as to whether Fisher established cause excusing his procedural default in failing to exhaust his Brady claim in state court. We determine that there was cause. Therefore, we will vacate the District Court's order insofar as it dismissed Fisher's Brady claim on the grounds that he failed to establish cause. In turn, this matter will be remanded for the District Court to determine whether Fisher also satisfied the applicable prejudice requirement.
On January 29, 1995, Dwayne Hudgins was shot and killed. Beginning on February 27, 1996, Fisher went on trial for this homicide in the Allegheny County Court of Common Pleas. The Commonwealth presented, among other things, the eyewitness testimony of the victim's cousin, Richard Marlon Epps, who identified Fisher as theshooter. On March 4, 1996, the jury returned a guilty verdict against Fisher on first-degree murder and related charges. In May 1996, he was sentenced, inter alia, to a mandatory term of life imprisonment for the murder conviction. The Pennsylvania Superior Court affirmed Fisher's conviction, and the Pennsylvania Supreme Court denied his petition for allowance of appeal on August 27, 1998. He then filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA") on August 2, 1999. However, the trial court denied relief, the Pennsylvania Superior Court affirmed, and, on January 30, 2008, the Pennsylvania Supreme Court again denied allowance of appeal.
Fisher filed a pro se § 2254 petition with the District Court on October 11, 2006. On October 17, 2006, the Federal Public Defender was appointed to represent Fisher. On May 24, 2007, Fisher filed an amended petition, claiming that the Commonwealth suppressed impeachment evidence in violation of Fisher's due process rights under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Kyles v. Whitley, 514 U.S. 419 (1995).
Specifically, Fisher has asserted that the Commonwealth failed to disclose critical Brady evidence concerning Epps. On May 1, 1995, his trial counsel (Patrick J. Thomassey, Esq.) submitted a request for pre-trial discovery and inspection, specifically demanding "[m]aterial evidence favorable to the accused" as well as "[i]nformation re: eyewitness to crime." (A52.) According to Fisher, the Commonwealth "failed to provide any information tending to show an agreement with Epps." (Appellant's Brief at 12 (citing A52, A60-A83).) In response to Fisher's subsequent discovery request filed inconnection with his federal habeas proceeding, the Commonwealth provided him with a copy of the materials that it purportedly furnished to Thomassey. The Commonwealth does not assert that the produced materials included any information concerning an agreement or understanding with Epps. However, in its answer to Fisher's amended habeas petition, it did refuse to "conced[e] that the fact that the witness had pending charges was not disclosed to the defense prior to [May 2007]." (Commonwealth's Answer at 24 n.18.) More generally, the Commonwealth denies that any agreement or understanding was reached with Epps, at least prior to Fisher's trial or in exchange for Epps's testimony against Fisher.
It appears that, on February 12, 1996, Epps entered an open guilty plea to several felony charges that had been pending for more than a year in the Allegheny County Court of Common Pleas. He purportedly faced a maximum penalty of 42 years of incarceration and was originally scheduled to be sentenced on April 8, 1996. However, he did not appear for sentencing as scheduled, was arrested pursuant to a warrant issued by the sentencing court, and ultimately received a below-guideline sentence on July 30, 1996. At this sentencing hearing, the prosecutor (Assistant District Attorney Lawrence Sachs, Esq.) explained to the sentencing court that, since the guilty plea was entered, "the defense counsel and myself have come to an accord with respect to a sentence that would be acceptable to the Court." (A77.) The prosecutor then went on to observe that Epps "was a key witness in a homicide trial." (A78.) Epps's own attorney (Perry Perrino, Esq.) added that he "spoke with Nick Radoycis [who was the prosecutor at Fisher's trial]and . . . he said, if necessary he would come in and testify on behalf of Mr. Epps, and he would say that if it had not been for Mr. Epps' testimony, which was key to the homicide case, they would not have achieved a conviction." (A78-A79.)
On December 4, 2008, the Magistrate Judge recommended that the District Court deny Fisher's claims for relief as well as his outstanding requests for discovery, an evidentiary hearing, and a certificate of appealability. The Magistrate Judge specifically determined that Fisher's Brady claim was procedurally defaulted and that Fisher failed to establish cause excusing this default. She stated that: (1) the information concerning Epps's sentencing was likely available during Fisher's direct appeal and certainly was available during his PCRA proceeding; (2) even if the underlying facts were not discovered until May 2007, a procedural default evidently would still occur because "Pennsylvania law provides that newly-discovered evidence claims may be presented through a second or subsequent PCRA petition if such claims are filed within sixty (60) days of the time the evidence is discovered" (A4 n.1 (citing 42 Pa. Cons. Stat. § 9545(b)(2))); (3) unlike in the typical case, the cause inquiry here diverges from the underlying merits of the Brady claim because the procedural default occurred after the existence of the undisclosed Brady evidence was known to Fisher; and (4) in the end, "the fact of initial suppression by the Commonwealth of an alleged deal with witness Epps is not sufficient to establish cause for failure to raise a Brady claim after the fact of Epps receiving consideration at sentencing for his testimony against Fisher became known" (A5-A6 (citing Albrecht v. Horn, 485 F.3d 103, 130 (3d Cir. 2007))).
Fisher objected to the Magistrate Judge's report and recommendation, but, on March 16, 2009, the District Court adopted it as its own, dismissed the habeas petition, and denied a certificate of appealability. Fisher then moved to amend under Federal Rule of Civil Procedure 59(e). On February 4, 2010, the District Court remanded the matter to the Magistrate Judge for a proper determination as to whether Fisher made a showing of actual innocence. On the other hand, it agreed with the Magistrate Judge that he failed to establish cause with respect to his Brady claim.
According to Fisher, he established cause because he was unaware of the Commonwealth's dealings with Epps until May 2007 and that the Magistrate Judge thereby erred in finding as a matter of fact that he knew about the undisclosed Brady materials when he defaulted his Brady claim on direct appeal or during his PCRA proceeding. The District Court rejected this theory because, even if the materials constituted newly discovered evidence, Petitioner still could have filed a second PCRA petition under 42 Pa. Cons. Stat. § 9545(b)(2) within 60 days of his discovery. After noting that Fisher never addressed the availability of this procedure in his Rule 59(e) motion, the District Court added that, "[a]lthough the Magistrate Judge provided alternative grounds for the absence of cause by citing 42 Pa.C.S.A. § 9545(b)(2), the Court does not find fault with her conclusion that the Brady material 'was likely available during Fisher's direct appeal, and certainly was available during Fisher's state PCRA proceeding.'" (A25 (quoting A4).)
On February 5, 2010, the Magistrate Judge again recommended that the habeaspetition be dismissed. Fisher filed objections to the Magistrate Judge's supplemental report and recommendation, specifically claiming that he could not return to the state courts following his May 2007 discovery because of Pennsylvania's "public record" doctrine. On May 11, 2010, the District Court adopted the supplemental report and recommendation, dismissed the petition, and denied a certificate of appealability. Finding them to be beyond the scope of the remand, the District Court specifically refused to consider Fisher's repeated objections to its Brady ruling.
Fisher filed a timely notice of appeal. On October 29, 2010, we granted a certificate of appealability as to whether Fisher established cause excusing his procedural default in failing to exhaust his Brady claim.
Fisher has never attempted to raise his Brady claim in the state courts.1 However, the exhaustion requirement is inapplicable "where the state courts would not consider the unexhausted claims because they are procedurally barred." Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004) (citing Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)). Given his assertion that he first discovered the facts underlying his claim in May 2007 as well as the existence of a 60-day time limit for raising PCRA claims based on newly...
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