Fountain v. Kyler, 03-4777.

• Decision Date: 25 August 2005
• Docket Number: No. 03-4777.,03-4777.
• Citation: 420 F.3d 267
• Parties: Charles Vincent FOUNTAIN, Appellant v. Kenneth D. KYLER; Attorney General for the Commonwealth of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

420 F.3d 267

Charles Vincent FOUNTAIN, Appellant v. Kenneth D. KYLER; Attorney General for the Commonwealth of Pennsylvania.

No. 03-4777.

United States Court of Appeals, Third Circuit.

Argued July 11, 2005.

August 25, 2005.

R. Damien Schorr, (Argued), Pittsburgh, PA, for Appellant.

James P. Barker, (Argued), Office of District Attorney, Dauphin County Courthouse, Harrisburg, PA, for Appellee.

Before SLOVITER and MCKEE,

Circuit Judges, and FULLAM,^* District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this case, we are asked to extend the jurisprudence regarding ineffective assistance of counsel to counsel's failure to predict the Pennsylvania Supreme Court's later ruling regarding the non-retroactivity of an amended death penalty statute. We decline to extend the law that far.

Charles Vincent Fountain, who is currently serving a life sentence for a 1976 homicide, appeals from the denial by the United States District Court for the Middle District of Pennsylvania of his application for a writ of habeas corpus. After the District Court's denial, we issued a certificate of appealability ("COA") on the sole issue of whether his "remand counsel was ineffective for advising him not to appeal. . . ." App. at 5. The resolution of this question turns on whether Fountain's remand counsel provided ineffective assistance for advising him not to take an appeal following his remand proceedings due to her belief — that later proved to be erroneous — that the Pennsylvania courts would give retroactive effect to a death penalty statute enacted after Fountain's alleged crime.¹

I.

In order to resolve this matter, we must set forth in some detail the procedural posture of Fountain's case, as well as the various developments in Pennsylvania capital punishment law that occurred in the late 1970's.

In late September 1976, a jury sitting in the Court of Common Pleas for Dauphin County found Fountain guilty on one count of murder in the first degree and on two counts of robbery for the 1976 robbery and murder of Joseph Geller. See generally Commonwealth v. Fountain, 485 Pa. 383, 402 A.2d 1014 (1979). At sentencing, the jury recommended a punishment of death for the murder conviction. In returning its recommended sentence, the jury utilized the then-applicable death-penalty provisions of Pennsylvania's Sentencing Code. Id. at 1015.

After this bifurcated trial, Fountain's trial counsel requested leave to withdraw. The court granted this request and thereupon appointed Marilyn Zilli, who was then serving as Assistant Public Defender for Dauphin County, to represent Fountain. 402 A.2d at 1015. Zilli represented Fountain in the post-verdict proceedings before the Court of Common Pleas, on Fountain's direct appeal to the Supreme Court of Pennsylvania, and on the subsequent remand to the Court of Common Pleas.

The trial court followed the jury's recommendation and imposed the death penalty on Fountain for the murder conviction; it further imposed two sentences of ten to twenty years for the robbery convictions. 402 A.2d at 1015. Fountain thereafter filed a direct appeal to the Pennsylvania Supreme Court in which he argued, inter alia, that Pennsylvania's death penalty scheme was unconstitutional and that his trial counsel had provided ineffective assistance at both stages of the bifurcated trial. Id. at 1015-16.

Meanwhile, in November 1977, while Fountain's case was pending on direct appeal the Supreme Court of Pennsylvania held in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), that the provisions of the Pennsylvania Sentencing Code pertaining to the imposition of the death penalty were unconstitutional. Specifically, the Moody Court found that the Sentencing Code did not allow a jury to consider sufficiently the particular circumstances of the crime or the character and record of the individual offender. 382 A.2d at 444-49. Of course, the provisions held unconstitutional in Moody were the very provisions that the jury and judge had utilized in determining and imposing Fountain's punishment. On September 13, 1978, in direct response to the Moody decision, the Pennsylvania General Assembly passed a new death penalty sentencing statute to remedy the previous law's constitutional shortcomings.

On July 5, 1979, the Supreme Court of Pennsylvania, relying on its holding in Moody, ruled on Fountain's direct appeal and vacated his death sentence. Fountain, 402 A.2d at 1015 ("Moody . . . requires the vacation of the death penalty imposed in this case and a remand for resentencing."). With respect, however, to Fountain's claims of ineffective assistance of trial counsel, the Court determined that there was "an insufficient record" to resolve those issues and thus remanded the case "to the trial court to conduct an evidentiary hearing on all preserved claims of ineffective assistance of trial counsel." Fountain, 402 A.2d at 1015-16.

Pursuant to this directive, the Court of Common Pleas conducted an evidentiary hearing regarding Fountain's ineffectiveness claims. On December 20, 1979, the court issued an opinion holding that Fountain's trial counsel had provided constitutionally-effective representation. The following day the court sentenced Fountain to a term of life imprisonment for the murder conviction and a consecutive sentence of ten to twenty years for the robbery convictions.

Following the trial court's rejection of Fountain's claims of ineffective assistance of trial counsel, Attorney Zilli wrote her client a letter in January 1980, the attorney-client communication upon which Fountain grounds his case. In this letter, Zilli advised Fountain not to appeal from the court's decisions on remand because, in her professional opinion, the risks involved were too great. In pertinent part, the letter, dated January 7, 1980, read as follows:

As I indicated to you when you were here for resentencing, we must now make a decision whether to appeal [the Court of Common Pleas'] finding that counsel rendered effective assistance in your case.

I have done more research in the area and must tell you I do not feel an appeal should be taken. My reasons are as follows. First, I do not believe that we would get a favorable decision from the Supreme Court. The Court will most likely not overturn [the Court of Common Pleas'] decision. . . . Secondly, even if the Supreme Court were to [reverse] . . . the result would not really be favorable. Such a decision would mean that you would be granted a new trial. I must be honest and say that if you are tried again, I have absolutely no doubt that you will be found guilty again. At that point, we would have real problems. As I've explained to you, the law now appears to provide that you could be subject to the death penalty again. I'll admit the law is not clear but the "if" is not really on your side. I believe it's simply too risky.

Please consider all this and call me with your decision.

Supp.App. at 1.

On January 16, 1980, Fountain wrote Zilli a response letter in which he wrote that there was "no need in giving [the Commonwealth] another shot at me as far as the death sentence goes. . . ." Supp.App. at 3. He thus told Zilli that she could "drop the [a]ppeal, only under the [u]nderstanding[] that we know that I would be [s]ubject to the [d]eath [s]entence, should I be granted a new trial. . . ." Id. As later found by the Superior Court of Pennsylvania, Fountain abided by counsel's advice and thus "ask[ed] Zilli not to pursue appellate proceedings so that he would not be subject to the death penalty again." App. at 46.

Shortly after Zilli and Fountain exchanged these communications, and after the time for Fountain to file an appeal had passed, the Supreme Court of Pennsylvania decided Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981) ("Story II"), which held that the revised death penalty statute could not be applied retroactively, a holding contrary to Zilli's implicit prediction. In that case, a jury had convicted Stanton Story for a 1974 murder; Story received a death sentence for this crime. Story II, 440 A.2d at 489. On direct appeal, the Supreme Court of Pennsylvania held that the murder conviction had been improperly obtained, and thus granted him a new trial. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1981) ("Story I"). In the interim between the 1974 murder and the decision in Story I, the Pennsylvania Supreme Court had decided Moody and, in turn, the General Assembly had promulgated the 1978 revamped death penalty provisions.

At Story's retrial, a jury again found him guilty of murder and the Commonwealth, relying on the post-Moody 1978 death penalty provisions, sought and obtained another death sentence. Story II, 440 A.2d at 489. On appeal, however, the Supreme Court of Pennsylvania held that the 1978 provisions did not have retroactive force and thus were only applicable to murders committed on or after the statute's date of enactment, September 13, 1978. Id. at 490. Because the death penalty provisions in effect at the time of Story's crime had been found unconstitutional, see Moody, 382 A.2d at 444, the Court vacated Story's sentence of death and imposed a sentence of life imprisonment. 440 A.2d at 492.²

In December 1996, some fifteen years after he was resentenced, Fountain filed a petition for collateral relief pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9541 et seq., in the Court of Common Pleas for Dauphin County. This petition raised many claims, including Fountain's claim that, by advising him not to pursue a direct appeal following the remand proceedings, Zilli had failed to provide effective assistance in dereliction of his rights under the Sixth Amendment to the United States Constitution. On June 5, 1998, the court denied Fountain's petition in all respects.

In an opinion and order dated August 24, 1999, the Superior Court of Pennsylvania affirmed the denial of Fountain's PCRA petition...