Hagan v. Fisher, Civil Action No. 13-1566

• Decision Date: 30 June 2016
• Docket Number: Civil Action No. 13-1566
• Parties: DAMONT HAGAN, Petitioner, v. JON FISHER; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

DAMONT HAGAN, Petitioner, v. JON FISHER; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 13-1566

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

June 30, 2016

Chief Magistrate Judge Maureen P. Kelly

MEMORANDUM OPINION

Damont Hagan ("Petitioner") has filed this Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"), ECF No. 3, seeking to attack his state court conviction for Aggravated Harassment by a Prisoner in connection with his throwing of feces on corrections officers at the State Correctional Institution at Fayette ("SCI-Fayette").

Petitioner, proceeding pro se, raises one ground for relief.

Ground One: Damont Hagan was denied his right not to be placed in jeopardy twice under the Fifth Amendment when the trial judge disregarded counsel[']s request for a continuance for reasons that also applied to a mistrial request and granted a mistrial without considering less drastic measures when he was aware that the facts were not clear enough to establish manifest necessity.

ECF No. 3 at 5 - 6. Because the state courts addressed this claim on the merits and because Petitioner failed to show that the state courts' adjudication of this claim was contrary to or an unreasonable application of United States Supreme Court precedent, and because he fails to show that the state courts unreasonably determined the facts, the Petition will be denied. Furthermore, because jurists of reason would not find the foregoing conclusion debatable, a Certificate of Appealability will also be denied.

I. PROCEDURAL HISTORY

A. State Court proceedings

In September 2007, Petitioner appeared in the Court of Common Pleas of Fayette County to face charges in connection with his throwing feces on corrections officers in the Restricted Housing Unit ("RHU") at SCI-Fayette. Petitioner represented himself with Attorney Thomas W. Shaffer, of the Fayette County Public Defender's Office, as stand by counsel. The trial was presided over by the Honorable Conrad B. Capuzzi. On the first day of trial, opening statements were presented and the trial court then broke for a lunch recess. After the recess, in response to a question by Judge Capuzzi, Petitioner's stand by counsel indicated that, while Petitioner was in a cell in the county jail, he attempted to slit his wrist during the recess. Consequently, Judge Capuzzi declared a mistrial. No appeal was filed thereafter from the declaration of a mistrial.

A jury trial was subsequently conducted in September 2008 (the "second trial") before the Honorable Ralph C. Warman. ECF No. 15-17. Petitioner, represented by counsel in the second trial, was convicted of one charge of Aggravated Harassment by a Prisoner and he was sentenced to 3 to 7 years of confinement, which was to be served consecutively to sentences that were previously imposed by the Courts of Common Pleas of Allegheny County and of Luzerne County.¹ Petitioner filed a direct appeal but it was discontinued in October 2008. Petitionersubsequently filed a Post Conviction Relief Act ("PCRA") petition and following a hearing thereon, his direct appeal rights from the second trial were reinstated nunc pro tunc.

In the reinstated direct appeal, Petitioner complained that the second trial violated his double jeopardy rights. After Petitioner filed his reinstated direct appeal, Judge Warman filed an Opinion in support of the conviction. In the Opinion, Judge Warman wrote in support of the conviction, explaining why the second trial did not violate Petitioner's double jeopardy rights, as follows:

On July l0, 2006, defendant was an inmate at the State Correctional Institution (SCI) Fayette serving a previously imposed state sentence. On said date Corrections Officers Matthew Land and Randall Smith were preparing to deliver the evening meal on J Block in A Section of the Restricted Housing Unit. When Corrections Officer Land arrived at defendant's cell and opened the food aperture in the door to issue defendant eating utensils, defendant threw a slurry of feces onto the officers with the feces striking Corrections Officer Land on various parts of his body including his face. Corrections Officer Smith was also struck with the feces on his left arm.

On September 13, 2007, the defendant's case was called for trial before the Honorable President Judge Conrad B. Capuzzi, now retired Senior Judge. Defendant was present representing himself having waived his right to counsel in a colloquy held before· Judge Steve Leskinen. Attorney Thomas Shaffer of the Fayette County Public Defender's Office was appointed by the Court as stand-by counsel. The jury was empaneled and sworn, and the Commonwealth and defendant each gave their opening statements during the morning session. At approximately 11:45 A.M. the Court declared a recess for lunch informing the parties and the jury that the trial would resume at 1:15 P.M.

After the luncheon recess the Court instructed its tipstaff to seat the jury in their assigned places in the jury box as soon as the defendant, who was being held in the county jail, took his seat at counsel table. When the judge entered the courtroom a few minutes later, the defendant did not rise. He was slumped down in his chair, apparently limp, draped over the arm of the chair with his eyes closed.

Although the Court called the defendant's name and spoke to him several times, there was no response or movement from the defendant. Stand-by counsel told the Court that he had been trying to rouse the defendant for about 10 minutes but had been unable to do so. At that point stand-by counsel blurted out to the Court, in full view and hearing of the jury, that he had been told defendant slashed his wrist during the lunch recess.

The Court suddenly found itself confronted with a potentially prejudicial situation that arose so quickly there was no chance to remove the jurors from the courtroom. The Court observed that the jurors were glancing at each other, rolling their eyes and snickering.

Cognizant that a mistrial cannot be granted sua sponte unless manifest necessity for doing so exists, the Court carefully considered the alternative of granting a recess or a continuance and then giving the jury a curative instructions [sic] [to remind the jurors that their verdict must be based only on the evidence properly presented during the trial].¹ Shortly thereafter, following further discussion between counsel and the Court and the defendant's continued unresponsiveness, stand-by counsel requested a mistrial on defendant's behalf which the Court granted.

Defendant acting pro se on January 8, 2008, filed a Motion for Habeas Corpus which was denied by Order of Judge Solomon dated February 8, 2008. Defendant on September 8, 2008 filed a Motion to Stay Proceedings which was denied by Judge Solomon following a colloquy held on September 8, 2008.

¹ As reflected in the record of September 13, 2007, the Court acknowledging its uncertainty at the time as to whether stand-by counsel had authority to act on a pro se defendant's behalf, also indicated that it was sua sponte granting the mistrial because the posture and unresponsiveness of the defendant constituted manifest necessity for doing so.

It appeared to the Court that no instruction, even after a lengthy recess or continuance would be able to restore the defendant and his credibility to a position where the empaneled jury would be able to give defendant a fair trial.

ECF No. 15-5 at 15 - 17 (Judge Warman filed his Opinion in support of the judgment of sentence on February 4, 2011). In his Opinion, Judge Warman greatly relied upon the fact that the jury had heard the statement by stand by counsel regarding Petitioner's attempt to slit his wrist, and accordingly, Judge Capuzzi properly concluded that "manifest necessity" existed so as to warrant the grant of a mistrial sua sponte.

Petitioner, through court appointed counsel, Attorney Dianne Zerega, filed an appellate brief to the Pennsylvania Superior Court raising the claim that the second trial violated his double jeopardy rights.² The Superior Court affirmed. ECF No. 15-5 at 5 - 12.

In affirming the conviction and rejecting Petitioner's contention that his double jeopardy rights were violated by the second trial, the Superior Court did not rely upon the "manifest necessity" rationale of Judge Warman but instead, in effect, affirmed on other grounds. The Superior Court relied principally upon the rationale that Judge Capuzzi had terminated Petitioner's pro se status sua sponte and sub silentio, where Judge Capuzzi granted an oral defense motion for a mistrial made by Attorney Shaffer.³ Thereafter, Attorney Zerega filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. It was denied.

On April 19, 2012, Petitioner filed a PCRA Petition in the state courts, raising his trial counsel's and direct appeal counsel's ineffectiveness for not properly litigating his double jeopardy claim. The PCRA trial court appointed Attorney Jeremy Davis as counsel. A hearingwas conducted and the PCRA petition was denied. It does not appear from the record before this Court that Petitioner appealed from the denial of PCRA relief.

B. Federal Court Proceedings.

Petitioner filed the instant Petition, pro se. ECF No. 3. Petitioner also filed a Memorandum of Law in support of the Petition. ECF No. 14. After being granted an extension of time, Respondents filed their Answer, ECF 15, and attached copies of much of the state court record. Petitioner then filed a Motion to Strike or Disregard Memorandum of Law in Support of the Petition of Writ of Habeas Corpus (the "Motion to Strike") that he had previously filed at ECF No. 14. ECF No. 19. The Motion to Strike was denied by the Court. ECF No. 21. Thereafter, Petitioner filed a Response, captioned "Answer to Respondents' Answer on Behalf of the Commonwealth in Support of the Dismissal of the Petition for Writ of Habeas Corpus Filed...