Greene v. Superintendent Smithfield SCI

• Decision Date: 09 February 2018
• Docket Number: No. 16-3636,16-3636
• Citation: 882 F.3d 443
• Parties: Eric GREENE, a/k/a Jarmaine Q. Trice v. SUPERINTENDENT SMITHFIELD SCI; The District Attorney of the County of Philadelphia; The Attorney General of the Commonwealth of Pennsylvania Eric Greene, Appellant
• Court: U.S. Court of Appeals — Third Circuit

882 F.3d 443

Eric GREENE, a/k/a Jarmaine Q. Trice
v.
SUPERINTENDENT SMITHFIELD SCI; The District Attorney of the County of Philadelphia; The Attorney General of the Commonwealth of Pennsylvania Eric Greene, Appellant

No. 16-3636

United States Court of Appeals, Third Circuit.

Argued September 11, 2017
Filed February 9, 2018

Michael Wiseman, Post Office Box 120, Swarthmore, PA 19081, Counsel for Appellant [ARGUED]

Catherine B. Kiefer, Susan E. Affronti, Ronald Eisenberg, Kathleen E. Martin, Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Appellees [ARGUED]

Before: VANASKIE, RENDELL, and FISHER Circuit Judges

OPINION

VANASKIE, Circuit Judge

882 F.3d 445

Eric Greene appeals from the denial of his motion to vacate the final judgment entered against him in his habeas corpus challenge to the validity of his 1996 state court conviction on charges of second degree murder, robbery, and conspiracy to commit robbery. At the core of this appeal is whether the failure to properly present to the state courts a claim that Greene's direct appeal counsel was ineffective can be excused on the ground that his postconviction counsel was ineffective in not pursuing the claim. After this appeal was filed, the Supreme Court answered this question in the negative, holding that "a federal court [may not] hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim." Davila v. Davis , ––– U.S. ––––, 137 S.Ct. 2058, 2065, 198 L.Ed.2d 603 (2017). In light of Davila , we will affirm the District Court's denial of Greene's motion to vacate.

I.

This is the second time Greene's habeas proceeding has been before us. See Greene v. Palakovich , 606 F.3d 85 (3d Cir. 2010), aff'd , 565 U.S. 34, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011). The underlying facts and procedural history are set out in great detail in our earlier opinion, id. at 87–93, and will not be restated here. Instead, we will recite only those facts pertinent to the question of whether Greene is entitled to vacate the judgment against him in order to pursue a claim of ineffective assistance of appellate counsel (the "IAAC claim").

During Greene's trial for murder, robbery, and conspiracy, the prosecution introduced the redacted confessions of two of Greene's nontestifying codefendants. After a jury returned a guilty verdict, Greene filed an appeal to the Pennsylvania Superior Court, arguing that the trial court's decision to admit the redacted confessions violated the rule announced in Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Pennsylvania Superior Court rejected this claim. After initially granting Greene's request for allowance of appeal, the Pennsylvania Supreme Court summarily dismissed the allowance of appeal as improvidently granted. Commonwealth v. Trice , 556 Pa. 265, 727 A.2d 1113 (1999).¹

Here, Greene contends that appellate counsel rendered ineffective assistance when he failed to advise Greene that he had the right to petition the Supreme Court of the United States for a writ of certiorari following the Pennsylvania Supreme Court's summary dismissal of his appeal. In the briefing presented to the Commonwealth's High Court, Greene argued that Gray v. Maryland , 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), decided after the Pennsylvania Superior Court had rejected Greene's Confrontation Clause claim, entitled him to relief on his Confrontation Clause claim.² Having dismissed

882 F.3d 446

Greene's appeal as improvidently granted, the Pennsylvania Supreme Court did not opine on the strength of Greene's Confrontation Clause claim in light of Gray .

Greene's conviction became final on July 29, 1999, when the time for filing a certiorari petition expired. In August of 1999, Greene, proceeding pro se , filed a petition under the Pennsylvania Post Conviction Relief Act, ("PCRA"), 42 Pa. Cons. Stat. § 9541, et seq. The attorney appointed to represent Greene in the PCRA proceeding filed a "No Merit Letter" pursuant to Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (1998). In fulfilling its obligation under Finley , the state trial court undertook an examination of the claims presented in Greene's pro se PCRA petition. The state trial court observed that Greene had asserted "several claims of ineffective assistance of counsel," but "[t]he majority of these claims ... [were] not pled with the requisite specificity to allow review." (App. 128.) It then concluded that "the record reveals no claims of arguable merit that could be raised under the PCRA," (id. at 131), and dismissed Greene's petition.

Greene appealed the dismissal of his PCRA petition to the Pennsylvania Superior Court. In affirming the dismissal, the Superior Court held that Greene's claims of ineffective trial and appellate counsel were "deemed waived" by virtue of Greene's failure to develop those claims "with any specificity." (Id. at 117.) On July 27, 2004, the Pennsylvania Supreme Court denied Greene's petition for allowance of appeal. Commonwealth v. Trice , 579 Pa. 702, 857 A.2d 679 (2004).

In November of 2004, Greene commenced this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Included among the claims he presented were a Confrontation Clause claim based upon Gray and claims of ineffective assistance of trial, appellate, and PCRA counsel.

The Magistrate Judge assigned to Greene's case issued a comprehensive Report and Recommendation that concluded by proposing that the habeas petition be dismissed, but that a certificate of appealability be issued "with respect to [Greene's] Sixth Amendment Confrontation Clause claim concerning the redacted confessions of his codefendants...." (App. 64.) Pertinent to the matter now before us, the Magistrate Judge found that because the Pennsylvania Superior Court had concluded that Greene waived his ineffective assistance of trial and appellate counsel claims, they could not now be considered on federal habeas review, observing that Greene "has not argued that any cause and prejudice will excuse the default...." (Id. ) Greene did not object to the Report and Recommendation. On April 2, 2007, the District Court adopted the Report and Recommendation, dismissed the habeas petition, and granted a certificate of appealability on the Confrontation Clause claim.

A divided panel of our Court rejected the Confrontation Clause claim and affirmed the dismissal of the habeas petition. See Palakovich , 606 F.3d at 106. With respect to Greene's reliance upon Gray , we held that "clearly established Federal law" must be determined as of the date of the last relevant state-court decision, and not when the conviction became final. Id. This meant that Gray , decided after the Superior Court ruling but before Greene's conviction

882 F.3d 447

became final, could not be relied upon for purposes of determining whether the state court decision resulted from an unreasonable application of "clearly established Federal Law, as determined by the Supreme Court of the United States."³ Id. at 98 (quoting 28 U.S.C. § 2254(d)(1) ).

The United States Supreme Court thereafter granted Greene's petition for a writ of certiorari. Greene v. Fisher , 563 U.S. 917, 131 S.Ct. 1813, 179 L.Ed.2d 772 (2011). On November 8, 2011, the Court unanimously affirmed our ruling. See Greene v. Fisher , 565 U.S. 34, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011). Commenting on the fact that Greene could not obtain judicial review of his Confrontation Clause claim based upon Gray , Justice Scalia stated:

We must observe that Greene's predicament is an unusual one of his own creation. Before applying for federal habeas, he missed two opportunities to obtain relief under Gray : After the Pennsylvania Supreme Court dismissed his appeal, he did not file a petition for writ of certiorari from this Court, which would almost certainly have produced a remand in light of the intervening Gray decision.... Nor did Greene assert his Gray claim in a petition for state postconviction relief.

Id. at 41, 132 S.Ct. 38.

More than three years after the Supreme Court rejected Greene's reliance upon Gray to challenge the validity of his 1996 conviction, Greene, proceeding pro se , filed a motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure to vacate the District Court Judgment entered on April 2, 2007.⁴ Greene's motion sought to resurrect his defaulted IAAC claim on the strength of the Supreme Court's 2012 decision in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Martinez held that "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural

882 F.3d 448

default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Id. at 17, 132 S.Ct. 1309 (emphasis added). The gist of Greene's argument was...