Greene v. Palakovich

• Citation: 482 F.Supp.2d 624
• Decision Date: 02 April 2007
• Docket Number: No. 04-5200.,04-5200.
• Parties: Eric GREENE, Petitioner, v. John PALAKOVICH, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

482 F.Supp.2d 624

Eric GREENE, Petitioner, v. John PALAKOVICH, et al., Respondents.

No. 04-5200.

United States District Court, E.D. Pennsylvania.

April 2, 2007.

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Eric Greene, Huntingdon, PA, pro se.

Susan Elizabeth Affronti, Thomas W. Dolgenos, Philadelphia District Attys Office, Philadelphia, PA, for Respondents.

MEMORANDUM

GREEN, Senior District Judge.

Presently pending is the Report and Recommendation (the "Report") of United States Magistrate Judge David R. Strawbridge and Respondents' Objections thereto. For the reasons set forth below, Respondents' Objections are overruled and the Report and Recommendation is approved and adopted.

BACKGROUND

In 1996, Petitioner Eric Greene ("Greene") was convicted and sentenced to life in prison for second-degree murder, three counts of robbery, and conspiracy. Greene's convictions arose out of the 1993 killing of a store clerk during a food market robbery. At trial, the prosecution produced evidence that Greene, who was tried under the name Jermaine Trice, entered Lilly's Market with his co-defendants, Atil Finney and Julius Jenkins, while co-defendants Gregory Womac and Naree Abdullah waited in Womac's car. During the course of the robbery, Jenkins shot and killed store clerk Francisco Azcona with a .45 caliber revolver, and Petitioner stole the store's cash register. Three days after the homicide, four members of the same group robbed a check-cashing agency two blocks away from Lilly's Market. Shortly thereafter, police arrested the four men and recovered a .45 caliber revolver near the arrest location. Ballistics test revealed that the gun police recovered was the weapon used to kill Francisco Azcona.

Petitioner was charged with second-degree murder, robbery, and conspiracy, and tried before a jury together with four codefendants. Defendants Finney and Womack confessed to the crimes, and excerpts of these confessions were admitted at trial. The confessions were redacted to exclude the names and personal details of the non-confessing co-defendants. Words and phrases such as "someone," "blank," "someone else," "two guys," "we," and "they" replaced the names of the non-confessing defendants. The trial court instructed the jury that each confession was only to be used against the particular defendant who made it.

Following his conviction on March 16, 1996, Petitioner filed several post-trial motions. The trial court denied these motions on March 10, 1997, and the trial judge subsequently sentenced Petitioner to life in prison. Petitioner then filed an appeal with the Pennsylvania Superior Court, which upheld his conviction in an opinion dated December 16, 1997. The Pennsylvania Supreme Court granted a petition for allocator on August 14, 1998; however, this decision was reversed on April 29, 1999 when the same court determined that allocator had been improvidently granted. Greene did not file a petition for certiorari to the United States Supreme Court. On August 3, 1999, Greene filed a petition for state collateral review under Pennsylvania's Post Conviction Relief Act ("PCRA"). The trial court, acting as the PCRA court dismissed the petition in 2000, and this dismissal was affirmed by the Superior Court in 2003. The Pennsylvania Supreme Court denied allocator in 2004.

REPORT AND RECOMMENDATION AND RESPONDENTS' OBJECTIONS

Greene filed the instant pro se petition for habeas corpus relief in which he enumerates five claims; however, the Report and Recommendation issued by Magistrate Judge David R. Strawbridge ("the Report") identifies and denies twelve distinct claims advanced by Greene.¹ The Report recommends denying the petition for habeas corpus, but granting a certificate of appealability on one claim only — Petitioner's assertion that the trial court's failure to sever his trial from that of his codefendants unfairly infringed upon his Sixth Amendment right to confrontation by subjecting him to evidence coming from certain non-testifying co-defendants' improperly redacted confessions.

While no objections to the Report were filed by Petitioner, Respondents object on three grounds: 1) they argue that reasonable jurists cannot disagree as to the law applicable to the Petitioner's confrontation clause claim; 2) they argue that any improper redaction of the admitted confessions was harmless error; and 3) they argue that Petitioner has not procedurally exhausted his confrontation clause claim. For the reasons stated below, each of Respondents' objections will be overruled.

1. Disagreement Over Applicable Law

A certificate of appealability may be issued upon the denial of a habeas corpus petition in situations where reasonable jurists could disagree as to the merits of the Petitioner's claim. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because reasonable jurists could disagree as to whether the U.S. Supreme Court's decision in Gray v. Maryland, 523 U.S. 185, 197, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), applies to the analysis of Petitioner's confrontation clause claim, a certificate of appealability will be issued for this specific claim only.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal habeas court reviews a state court decision only to determine whether it was "contrary to" or an "unreasonable application" of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A divided Supreme Court addressed the meaning of "clearly established Federal law" in Williams v. Taylor, where it concluded that clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." See 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J.) (joined by four Justices); but see Williams, 529 U.S. at 380, 120 S.Ct. 1495 (Stevens, J., concurring) (joined by three Justices) (stating that the appropriate standard to apply to a habeas petition is the law applicable "at the time the state decision became final"). Subsequent Supreme Court decisions have followed Justice O'Connor's standard for identifying the point in time for determining the applicable law. See Yarborough v. Alvarado, 541 U.S. 652, 660, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Conversely, some Third Circuit Court of Appeals cases have applied different formulations of this timing rule. See Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir.2004) (stating that the AEDPA requires the court to determine "what the clearly established Supreme Court decisional law was at the time petitioner's conviction became final") (italics added); Lewis v. Johnson, 359 F.3d 646, 652-53 (3rd Cir.2004) (citing Williams, 529 U.S. at 390, 120 S.Ct. 1495 (Stevens, J., concurring)); but see Priester v. Vaughn, 382 F.3d 394, 400 (3d Cir.2004) (refusing to consider a Supreme Court decision announced after the state court ruled on Petitioner's direct appeal); Johnson v. Carroll, 369 F.3d 253, 257 (3d Cir. 2004) (identifying "the time the state court renders its decision" as the applicable point on the time line).

Determination of the appropriate applicable Supreme Court precedent is key to assessing the merits of Petitioner's claim. In between the time the Pennsylvania Superior Court ruled on Petitioner's case and the time his conviction became final,² the Supreme Court decided Gray, which held that a redacted confession of a non-testifying co-defendant which "replaces a defendant's name with an obvious indication of deletion, such as a blank space, the word `deleted,' or a similar symbol" violates the "defendant's rights under the Sixth Amendment confrontation clause"³ 523 U.S. at 192, 118 S.Ct. 1151. If Gray applies to Petitioner's claim, then it may bolster the merit of his claim because blank spaces and similar symbols of deletion were used in the redactions of his codefendants' confessions. The Report concludes that the time of the relevant state court decision is the appropriate standard; therefore, it did not factor Gray into its analysis and denied the Petitioner's claim. Respondents object to the Report's recommendation that a certificate of appealability be issued. Because reasonable jurists could disagree as to the appropriate point in time upon which to identify the "clearly established law," Respondents' objection is overruled. Petitioner's confrontation clause claim is denied but a certificate of appealability will be issued.

2. Harmless Error

Respondents further argue that even if Gray is the appropriate standard to apply in this case, the error committed is harmless because it would not result in a different outcome. An error is not harmless when it "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 636, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

Respondents assert that even if the confessions admitted at Greene's trial were improperly redacted, such error was harmless due to the overwhelming evidence presented against him. To support this conclusion, they cite several cases in which the Supreme Court and the Third Circuit have found that admission of an improperly redacted confession constituted harmless error. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Ruff, 717 F.2d 855 (3d Cir.1983), cert. denied, 464 U.S. 1051, 104 S.Ct. 733, 79 L.Ed.2d 192 (1984). However, it should be noted that in these cases, the defendant asserting the confrontation clause violation had himself also confessed to the...