Gibbs v. Shannon
| Decision Date | 25 October 2013 |
| Docket Number | CIVIL NO. 3:CV-08-0462 |
| Parties | BARRY GIBBS, Petitioner v. ROBERT SHANNON, Respondent |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Kosik)
Petitioner, Barry Gibbs ("Petitioner"), a Pennsylvania state inmate, initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, he challenges his 2005 convictions for the third-degree murder of George Mehl, criminal conspiracy to kill Mehl, criminal conspiracy to commit aggravated assault against Wayne Burke, and the aggravated assault of Burke.
On March 29, 1984, Petitioner was charged in connection with a shooting incident that occurred on March 27, 1984. Sharon Burke solicited Petitioner to killher husband, Wayne Burke, who worked as a security guard at a Pike County, Pennsylvania housing development. She promised Petitioner money, a leather jacket and either a boat or a motorcycle, if he carried out the murder. On the evening of March 27, 1984, Mr. Burke was at work with George Mehl, another security guard. Petitioner went to that office at approximately 10:30 p.m. with Sharon Burke and three others (Sharon's daughter Bonnie Hagan, Wayne Burke's daughter Betsy Burke, and Bonnie's friend Jennifer Dean). Petitioner approached the window of the security office armed with a .357 Magnum handgun and fired six shots at the men through a window pane and screen. None of the shots struck Mr. Burke, but Mr. Mehl was killed by a gunshot wound to the head.
On March 29, 1984, Petitioner was charged with criminal homicide, criminal attempt to commit criminal homicide, criminal conspiracy, and aggravated assault for shooting and killing George Mehl and attempting to kill Wayne Burke on March 27, 1984. During his jury trial, Petitioner presented the testimony of Dr. Anthony J. Turchetti in support of insanity, as well as diminished capacity defenses, while the Commonwealth rebutted those defenses with the testimony of state psychiatrist Dr. Robert Sadoff. Petitioner was convicted of the first degree murder of Mehl, criminal attempt to commit homicide with respect to Mehl, criminal conspiracy to commit homicide with respect to Burke, criminal conspiracy to commit homicide with respectto Mehl, criminal conspiracy to commit homicide with respect to Burke, and the aggravated assault of Burke. Petitioner was sentenced to death on the murder conviction. With respect to the other charges, he was sentenced to consecutive periods of incarceration of 5-10 years for criminal attempt to commit criminal homicide (Burke) and 5-10 years of incarceration for criminal conspiracy to commit criminal homicide (Burke). The Pennsylvania Supreme Court ultimately reversed the convictions based upon the erroneous admission at trial of an inculpatory statement made by Petitioner, and granted him a new trial. See Commonwealth v. Gibbs, 553 A.2d 409 (Pa. 1989), cert. denied Pennsylvania v. Gibbs, 493 U.S. 963 (1989).
On February 10, 1994, Petitioner's second jury trial began. Dr. Sadoff again testified about incriminating statements Petitioner had made to him during the course of his psychiatric examination of Petitioner. He was found guilty of the third-degree murder of Mehl, criminal conspiracy to commit homicide (Mehl), criminal conspiracy to commit homicide (Burke), and the aggravated assault of Burke. The charge of criminal attempt to commit homicide was not submitted to the jury during this trial. Petitioner was sentenced to consecutive periods of incarceration of 5-10 years for third-degree murder, 5-10 years for both counts of criminal conspiracy (to run concurrently with each other), and 10-20 years incarceration for aggravated assault. The total sentence in all amounted to 20-40 years.
On direct appeal, the Pennsylvania Superior Court affirmed in part, reversed inpart, and remanded the case to the trial court for resentencing on the aggravated assault charge. See Commonwealth v. Gibbs, 676 A.2d 281 (Pa. Super. 1995). A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on August 12, 1996. See Commonwealth v. Gibbs, 680 A.2d 1159 (Pa. 1996). Petitioner was resentenced on October 24, 1996, to 5-10 years incarceration on the aggravated assault conviction.
A pro se PCRA petition under the Pennsylvania Post Conviction Relief Act was filed by Petitioner on July 24, 1997.2 Counsel was appointed to represent Petitioner and an amended PCRA petition and a supplement thereto were filed on his behalf. The trial court denied the petitions on July 13, 1998, and this decision was affirmed by the Superior Court. See Commonwealth v. Gibbs, 738 A.2d 1050 (Pa. Super. 1999). A petition for allowance of appeal was denied. See Commonwealth v. Gibbs, 742 A.2d 168 (Pa. 1999).
Petitioner thereafter filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. (See Gibbs v. Frank, No. 3:CV-99-1627 (M.D. Pa. 2002)). The petition was denied on September 30, 2002. In the petition, twenty-seven (27) grounds were raised including ineffective assistance of counsel, trial court error, challenges to jury instructions, sentencing challenges and prosecutorial misconduct. The Third Circuit Court of Appeals granted Petitioner a new trial on theground that the testimony of the Commonwealth's psychiatrist, Dr. Sadoff, was introduced improperly in violation of Petitioner's Fifth Amendment right against self-incrimination. See Gibbs v. Frank, 387 F.3d 268 (3d Cir. 2004). Following remand, this court ordered on November 18, 2004 that Petitioner be retried within 120 days.3
The third jury trial commenced on June 23, 2005. Petitioner was again convicted of third degree murder, two counts of conspiracy, and aggravated assault. He was sentenced to twenty-five (25) to fifty (50) years imprisonment.
On direct appeal, the Pennsylvania Superior Court affirmed the conviction and sentence on February 14, 2007. See Commonwealth v. Gibbs, No. 2800 EDA 2005, 924 A.2d 691 (Pa. Super. 2007). A petition for allowance of appeal was denied on December 18, 2007, by the Pennsylvania Supreme Court. See Commonwealth v. Gibbs, No. 415 MAL 2007, 939 A.2d 889 (Pa. 2007).
The pending petition for writ of habeas corpus was filed on March 12, 2008. In the petition, the following five (5) grounds are raised:
Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petition has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity toreview federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
To satisfy the exhaustion requirement, a federal habeas petitioner must have presented the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process."5 O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see also Hollowav v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The exhaustion requirement is satisfied if a petitioner's claims are either presented to the state courts directly on appeal from the judgment of sentence, or through a collateral proceeding, such as a PCRA petition. Swanger v. Zimmerman, 750 F.2d 291, 195 (3d Cir. 1984). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. Id. However, a petitioner is not deemed to have exhausted the remedies available to him if he has a right under the state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350 (1989). The petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3dCir. 2000)(citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)).
Beyond questions of exhaustion, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152, (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996). The purpose of the procedural default rule is to prevent habeas petitioners from avoiding the exhaustion doctrine by defaulting their claims in state court. Coleman, 501 U.S. at 732.
A state's procedural rules are entitled to...
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