Gibbs v. Shannon

• Decision Date: 02 July 2015
• Docket Number: No. 13-4402,13-4402
• Parties: BARRY GIBBS, Appellant v. ROBERT SHANNON; PA STATE ATTORNEY GENERAL
• Court: U.S. Court of Appeals — Third Circuit

BARRY GIBBS, Appellant v. ROBERT SHANNON; PA STATE ATTORNEY GENERAL

No. 13-4402

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: April 8, 2015

July 2, 2015

NOT PRECEDENTIAL

Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. Civ. No. 3-08-cv-00462)

District Judge: Honorable Edwin M. Kosik

Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges.

Mark A. Berman, Esq. [ARGUED]

Hartmann, Doherty, Rosa, Berman & Bulbulia

65 Route 4 East

River Edge, NJ 07661

Counsel for Appellant

James P. Barker, Esq. [ARGUED]

William R. Stoycos, Sr., Esq.

Office of Attorney General of Pennsylvania

Appeals & Legal Services

Strawberry Square

16th Floor

Harrisburg, PA 17120

Counsel for Appellee

OPINION^*

VANASKIE, Circuit Judge.

This appeal in a habeas corpus proceeding brought by Appellant Barry Gibbs under 28 U.S.C. § 2254 is before us on a certificate of appealability that we issued on the following question: "whether the District Court erred in denying Gibbs's claim that the Commonwealth presented insufficient evidence to sustain a jury verdict finding him guilty of two separate conspiracies." Order, Apr. 29, 2014, Gibbs v. Shannon, et al., No. 13-4402 (3d Cir. 2014). For the reasons that follow, we will affirm the District Court's denial of Gibbs's habeas corpus petition.

I.

We briefly summarize the relevant background, reserving our discussion of additional facts as they become pertinent to our analysis below. On March 27, 1984, Sharon Burke, aided by several co-conspirators, solicited Gibbs to murder her husband, Wayne Burke. After Gibbs agreed to be the shooter, Sharon Burke provided him with a gun, explained the layout of the security office where her husband worked, and drove him to the scene. At her house and during the trip to the security office, Sharon Burke explained that another security officer, George Mehl, would also be on duty that night,and if necessary, Gibbs should be prepared to shoot or kill Mehl, too, if he interfered with Gibbs's effort to kill Wayne Burke. Gibbs assented to take out Mehl, if necessary. Once at the security office, Gibbs approached a side window and fired six shots at the two guards. Mehl was hit in the head and died. Wayne Burke, however, was unharmed.

Shortly thereafter, Gibbs was charged in a criminal information with five separate counts stemming from the shooting: one count of attempted criminal homicide as to Wayne Burke, one count of criminal homicide for the death of Mehl,¹ two counts of criminal conspiracy to commit homicide (one for each intended victim), and one count of aggravated assault as to Wayne Burke.

There then ensued protracted proceedings that included three separate trials, numerous state court appeals, two federal habeas proceedings, and two prior appeals to our Court. We described the lengthy procedural history of this case in Gibbs v. Frank, and a brief review is helpful in framing our analysis now:

Three times a jury has convicted Gibbs of the same criminal homicide. 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 thatGibbs' 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.

500 F.3d 202, 203 (3d Cir. 2007).

After vacating his second conviction, we ordered that he be retried or released. Id. During the course of this trial, two of his co-conspirators, Bonnie Hagen² and Betsy Burke, testified against him. On July 5, 2005, the jury convicted Gibbs of third degree murder and conspiracy to commit third degree murder for killing Mehl, and aggravated assault and conspiracy to commit aggravated assault for attempting to shoot Wayne Burke.³ On September 2, 2005, Gibbs was sentenced to a prison term of 10 to 20 years on the third degree murder conviction, and consecutive 5 to 10 year prison terms on the two conspiracy convictions and the aggravated assault conviction, for an aggregate prison sentence of 25 to 50 years.

On direct appeal to the Superior Court of Pennsylvania, Gibbs argued that the evidence was insufficient to sustain both conspiracy convictions. On February 14, 2007, the Superior Court affirmed the conviction and sentence in an unpublished opinion. In addressing Gibbs's conspiracy convictions, the Superior Court explained:

In the present case, the Commonwealth's evidence was sufficient to establish the existence of two different conspiracies, one to murder Mr. Burke and the other to harm Mr. Mehl if it became necessary to shoot Mr. Burke. The objective of the first conspiracy was Mr. Burke's murder. This conspiracy started in February 1984 and continued until the evening of the actual shooting, March 27, 1984. Over the two months preceding the shooting, when only Mr. Burke's murder was being planned, discussions occurred among Sharon Burke, Bonnie Hagan-Sullivan, Hagan-Sullivan's then boyfriend, Gary Huth, and her friends, Connie Stein and Jennie Dean. The active participants in this conspiracy were Sharon Burke, Hagan-Sullivan, and Dean. Conversations with Appellant concerning the planning and execution of Mr. Burke's murder occurred on the telephone, at Sharon Burke's home, and at a business establishment. There was an overt act in furtherance of this conspiracy when Appellant conducted target practice at the Burke residence the day before the shooting.

The second conspiracy had a completely different motive and objective, to harm Mr. Mehl. That conspiracy was not formed until March 27, 1984, long after the agreement to kill Mr. Burke was in place and only when it became apparent that Mr. Mehl was going to be present with Mr. Burke at work. The discussions over what to do about Mr. Mehl occurred only between Sharon Burke and Appellant and were conducted at the Burke home and in the car on the way to Hemlock Farms.

Thus, the conspiracies involved: 1) different victims, Mr. Burke and Mr. Mehl; 2) different objectives, to kill Mr. Burke and to harm Mr. Mehl; 3) different co-conspirators; 4) different time frames; and 5) different locations for the agreements. Thus, the evidence, viewed in the light most favorable to the Commonwealth was sufficient to sustain Appellant's conviction of two counts of conspiracy.⁴

(App. at 154-55). On December 18, 2007, Gibbs's petition for allowance of appeal to the Supreme Court of Pennsylvania was denied. Commonwealth v. Gibbs, 939 A.2d 889 (Pa. 2007) (table).

On March 12, 2008, Gibbs filed a petition for habeas relief under 28 U.S.C. § 2254(b)(1), claiming, among other things, that the two conspiracy convictions were unsupported by the record and that the Superior Court's decision to the contrary was an unreasonable application of federal law. On October 25, 2013, the District Court issued a Memorandum and Order denying Gibbs's habeas petition. Gibbs v. Shannon, Civil No. 3:CV-08-0462, 2013 WL 5781107 (M.D. Pa. Oct. 25, 2013). In rejecting Gibbs's challenge to the multiple conspiracy convictions, the District Court held that the Superior Court's decision

was objectively reasonable as illustrated by the evidence existing in the record and cited to by the state court that supported the existence of two separate conspiracies—including different objectives, different parties, different locations and different times. For these reasons, the court finds that the state court determination was not contrary to, or an unreasonable application of, clearly established Federal law, and also was not based on an unreasonable determination of the facts in light of the evidence presented. Consequently, there is no basis to grant federal habeas relief to Petitioner on this claim.

Id. at *18. Gibbs then filed a petition seeking a certificate of appealability with this Court. On April 29, 2014, we granted a certificate of appealability on the challenge to the conspiracy convictions.⁵

II.

The District Court had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254(a). We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). Where, as here, a state court has decided the merits of a petitioner's habeas claim, habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is appropriate only if the state court's adjudication of the claim "was (1) 'contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Grant v. Lockett, 709 F.3d 224, 231 (3d Cir. 2013) (quoting 28 U.S.C. § 2254(d)).

III.

Gibbs presents two central arguments on appeal: (1) that the Superior Court made unreasonable findings of fact in light of the evidence presented at trial concerning his involvement in the conspiracy to murder Wayne Burke; and (2) that the record evidence is insufficient to sustain a separate conspiracy conviction to kill or harm Mehl. We consider each contention in turn.

A. The Superior Court's Factual Determinations

We address Gibbs's factual challenge first, as it will frame our review of the Superior Court's sufficiency-of-the-evidence determination. In considering this argument, we accord great deference to the Superior Court's findings of fact. "[A] state-court factual determination is not unreasonable merely because...