Gibbs v. Frank

• Decision Date: 29 August 2007
• Docket Number: No. 06-2725.,06-2725.
• Citation: 500 F.3d 202
• Parties: Barry GIBBS, Appellant v. Frederick K. FRANK; District Attorney of Pike County; Attorney General of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

500 F.3d 202

Barry GIBBS, Appellant v. Frederick K. FRANK; District Attorney of Pike County; Attorney General of Pennsylvania.

No. 06-2725.

United States Court of Appeals, Third Circuit.

Argued June 28, 2007.

Filed: August 29, 2007.

Mark A. Berman (argued), Hartman, Doherty, Rosa & Berman, Hackensack, NJ, for Appellant.

Thomas W. Corbett, Jr., Attorney General, Richard A. Sheetz, Jr., Executive Deputy Attorney General, Amy Zapp, Chief Deputy Attorney General, Christopher D. Carusone, Senior Deputy Attorney General (argued), Office of Attorney General, Capital Litigation Unit, Harrisburg, PA, for Appellee.

Before SMITH, GREENBERG, Circuit Judges and POLLAK, District Judge.^*

OPINION OF THE COURT

SMITH, Circuit Judge.

Barry Gibbs appeals from the District Court's April 27, 2006 judgment denying his application for release. The primary issue presented in this appeal is whether the District Court complied with this Court's earlier mandate "to grant Gibbs' petition for a writ of habeas corpus and require the state to either release Gibbs or retry him within a specified time period." Gibbs v. Frank, 387 F.3d 268, 277 (3d Cir.2004) (Gibbs I). The District Court set this time period at 120 days, but Gibbs' retrial did not take place within that time frame. The District Court excused this delay because it concluded that the delay was due in large part to Gibbs' own actions. The secondary issue presented in this appeal is whether the District Court properly interpreted its own order establishing the time period of 120 days to include an extension under state procedural rules for the filing of several pre-trial motions. We agree that the District Court complied with our prior mandate and properly exercised its discretion in excusing the brief delay in the Pennsylvania state court system. We will therefore affirm.

I.

Three times a jury has convicted Gibbs of the same criminal homicide.² The Pennsylvania Supreme Court vacated Gibbs' first conviction after concluding that certain statements he made to the police were induced in violation of his Fifth Amendment rights. At Gibbs' first trial, a government psychiatrist who had conducted a court-ordered examination of Gibbs testified about statements made by Gibbs to the psychiatrist; the psychiatrist's testimony was presented to rebut Gibbs' diminished capacity defense. At Gibbs' second trial, the government psychiatrist again testified about Gibbs' statements. But at the second trial Gibbs did not raise a diminished capacity defense. Accordingly, on habeas corpus, this Court set aside Gibbs' second conviction, ruling that Gibbs' statements to the psychiatrist in a court-ordered examination were compelled, and hence the presentation of the psychiatrist's testimony as part of the government's affirmative case—i.e., in a non-rebuttal setting—violated Gibbs' Fifth Amendment rights. In remanding the case, this Court directed the District Court to enter an order conditionally granting habeas relief unless Gibbs was retried "within a specified time period." Gibbs I, 387 F.3d at 277.³

The District Court received the certified order in lieu of the formal mandate from this Court on November 17, 2004. That Court issued an order on November 18, 2004 directing the Commonwealth to either release Gibbs or retry him "within 120 days in accordance with the Third Circuit Court's directive." The District Court noted that 120 days would run on March 18, 2005. Earlier in November, Gibbs had written to his former state counsel from the first trial, Ronald M. Bugaj, informing him that the Third Circuit had granted him a new trial, that the state was petitioning for a rehearing and then certiorari, and that although he had a lawyer for his appeal, a new lawyer would have to be appointed for his retrial. Gibbs indicated that Bugaj should notify him if Bugaj was interested in representing him. On November 12, before the District Court issued its order, Bugaj responded to the letter, expressing an interest in the case. In late November, Gibbs wrote Attorney Bugaj and suggested that Bugaj contact Mark A. Berman, who represented him before the Third Circuit in Gibbs I, on how to proceed.

In late December, Berman wrote to Judge Joseph F. Kameen of the Court of Common Pleas of Pike County, stating that counsel should be appointed for Gibbs "immediately," and that Bugaj was willing to take the appointment. Judge Kameen was unaware of the District Court's order to retry Gibbs because it had been electronically served only on the parties. This contact by Bugaj was, therefore, the first indication to the state court that Gibbs would need new counsel to be appointed for a retrial. In January 2005, Judge Kameen wrote to the Chief Public Defender, directing that a public defender undertake the representation of Gibbs at his trial, which was set for March 7, 2005. Assistant Public Defender Robert F. Bernathy was designated. Shortly thereafter, Gibbs wrote to Bugaj advising of the appointment of Bernathy and stating that he wrote to the Public Defender objecting to the appointment. In mid-February, the Commonwealth filed a motion objecting to the appointment of Public Defender Bernathy because his father had been part of the original team of Pennsylvania State Police troopers investigating the homicide more than two decades earlier.

On February 24, 2005, Gibbs filed a pro se motion for appointment of counsel in the Pike County Court of Common Pleas, outlining the history of the case and claiming that he had a conflict with the public defender because the public defender had supposedly ineffectively represented him at earlier trials. Four days later, the public defender filed a motion to withdraw as Gibbs' counsel.

On March 4, 2005, Judge Kameen granted the motion to withdraw, and appointed Bugaj and an associate to represent Gibbs. On March 7, 2005, the day the trial was scheduled to begin, Bugaj moved to continue the trial until May 2, 2005 so that he could file pretrial motions. During the hearing on that motion the prosecutor stated that "the Commonwealth is ready to proceed today," but conceded that it had no objection to the continuance. The defense was given until April 1, 2005 to file its pretrial motions. On April 1, the defense filed an omnibus motion, asserting several issues. The defense also made an oral motion for Judge Harold Thomson to recuse himself because he had presided over the first two trials. After the defense filed a written recusal motion, Judge Thomson recused himself on April 28. Judge Kameen ruled on the omnibus motion in an opinion on May 20, 2005. He noted that the continuances previously granted had been at the request of the defense, and that 10 pre-trial motions had also been filed. Because many of the issues raised by the defense had previously been determined by the trial court, Judge Kameen comprehensively addressed only four issues: a motion to suppress specific evidence; two motions to dismiss charges; and a motion for release on nominal bail because Gibbs was not going to be tried within the 120 days (which was March 18, 2005) set by the District Court.

In early May 2005, the District Court docketed a letter by Bugaj's associate that stated that Gibbs wished to file an application for release based upon the Commonwealth's violation of the previous order that Gibbs be tried within 120 days. The attorney requested that counsel be appointed to represent Gibbs in these federal court proceedings. On May 9, 2005, the District Court appointed Berman to represent Gibbs in any further proceedings. One day later, Berman prepared an "Application for Release" that asserted that the Commonwealth had disregarded the order of the District Court and "deliberately acted in a manner that made it impossible for such a trial to take place." For reasons not clear from the record before us, the Application was not docketed until March 6, 2006. By order dated April 27, 2006, the District Court denied Gibbs' application for release. This appeal followed.⁴

II.

The District Court had continuing jurisdiction under 28 U.S.C. §§ 1331 and 2254 over Gibbs' application for release from confinement. See Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir.2004); Phifer v. Warden, 53 F.3d 859, 865 (7th Cir.1995) (declaring that District Court had continuing jurisdiction to address alleged noncompliance with conditional writ of habeas corpus). Because Gibbs' notice of appeal is from a final order denying his application to make the conditional writ absolute and to release him, we exercise jurisdiction pursuant to 28 U.S.C. § 1291. The Commonwealth contends that we lack jurisdiction because a certificate of appealability ("COA") has not been granted. Our analysis in Mickens-Thomas demonstrates, however, that we have jurisdiction.

In Mickens-Thomas, 355 F.3d at 303, we revisited the issue of whether an ex post facto violation had occurred on remand as a result of the Pennsylvania Board of Probation and Parole's conduct with regard to Mickens-Thomas' renewed parole application. We noted that we had found a violation in the first appeal and remanded the matter for the Board to rectify the violation. See Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003). We observed that our mandate in the first appeal, as set forth in several paragraphs of the opinion, "could not be clearer." Mickens-Thomas, 355 F.3d at 302. Yet the Board's conduct once the matter was remanded was again deficient.

After relating the factual history of the case, we considered whether we had jurisdiction. We noted that, even though no COA had been granted by the District Court, Mickens-Thomas' notice of appeal constituted a request for a COA under Federal Rule of Appellate Procedure 22(b)(1). We further stated that, "[o]f utmost importance, this Court has continuing jurisdiction over this appeal to determine whether the Board has complied with the District Court's remand order and our remand mandate." Id. at 303. As support we...