Judge v. Beard, CIVIL ACTION NO. 02-CV-6798

Decision Date28 November 2012
Docket NumberCIVIL ACTION NO. 02-CV-6798
PartiesROGER JUDGE v. JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections, WILLIAM STICKMAN, Superintendent of the State Correctional Institution at Greene, ROBERT W. MEYERS, Superintendent of the State Correctional Institution at Rockview, and MICHAEL FISHER, Attorney General of the Commonwealth of Pennsylvania
CourtU.S. District Court — Eastern District of Pennsylvania
MEMORANDUM AND ORDER

JOYNER, J.

Presently before the Court for decision is the Petition for Writ of Habeas Corpus first filed by the petitioner, Roger Judge, on August 16, 2002, and amended on April 16, 2004. Previously, on March 13, 2009, we granted Petitioner's Motion for Partial Summary Judgment on Claim V of the Petition seeking relief from the sentence of death on the basis of the Supreme Court's decision in Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988).1 For the reasons that follow, theremainder of the petition is now granted in part and denied in part.

Factual and Procedural Background

This case arose on the night of Friday, September 14, 1984, at approximately 11:49 p.m. when a group of teenagers consisting of Christopher Outterbridge, his sister Lisa, her friend Tanya Mitchell and Tanya's younger sister Tabatha, and two other friends, Cathy Green and Calvin Whitaker, were returning to the Outterbridge home at 1108 West Wyoming Avenue in Philadelphia from a nearby sandwich shop. The group had just reached the porch of the Outterbridge home where Christopher and Lisa's younger sister, Kia Outterbridge, was waiting, when Petitioner walked up and began firing a .32 caliber revolver at the porch. In the process, the revolver was emptied of all five of its shots and 18-year-old Christopher Outterbridge and 15-year-old Tabatha Mitchell were fatally wounded.

A nearby police patrol car responded almost immediately to the scene after the shooting, but the shooter had fled the scene. Unfortunately for Petitioner, all of the surviving teenagers recognized and identified him as a resident of the neighborhood with whom they were familiar, albeit by his street name, "Dobe."2 While there were some minor discrepancies, all of the witnesses described "Dobe" as being short, between 5'2" and 5'6" tall, with a short, box haircut and wearing an orange- or red-colored hooded rain jacket at the time of the shooting. Several of the witnesses identified Petitioner as being "Dobe" from a photo lineup and a warrant was issued for his arrest in the early morning hours of September 15, 1984. After eluding the police for almost two weeks, Petitioner was eventually apprehended on October 2, 1984. He was subsequently tried and convicted of two counts of first degree murder and one count of possession of an instrument of crime following a week-long jury trial on April 15, 1987, and sentenced to death.

On June 12, 1987, following the summary denial of post-trial motions, Petitioner was formally sentenced by the trial judge, the Honorable Albert F. Sabo of the Philadelphia County Court of Common Pleas. Two days later, however, Petitioner escaped from the Holmesburg Prison in Philadelphia and fled to Vancouver, Canada where, on July 13, 1988, he was convicted of two robberies and sentenced to ten years' imprisonment. His Canadian convictions were upheld on appeal.3

On August 11, 1987, while Petitioner was a fugitive, his convictions and death sentences were certified for automaticappeal to the Pennsylvania Supreme Court. Acting sua sponte on December 22, 1989, the Pennsylvania Supreme Court issued a per curiam order that limited its review to the sufficiency of the evidence and the propriety of the sentence "as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S. Ct. 2444, 77 L. Ed. 2d 1327, reh'g denied, 463 U.S. 1236, 104 S. Ct. 31, 77 L. Ed. 2d 1452." See, Commonwealth v. Judge, 530 Pa. 403, 405, 609 A. 2d 785, 786, n.4 (1992). In spite of this limitation, Petitioner's attorney raised several claims of trial error for review. While acknowledging that it had "the authority to correct errors at trial which the appellant raises," the Supreme Court noted that its "rules expressly provide for the quashing of an appeal when the appellant is a fugitive..., and it is within the discretion of this Court to take such action sua sponte ... Additionally, this Court has held that 'a defendant who elects to escape from custody forfeits his right to appellate review.'" Judge, 609 A.2d at 786, (citing Pa. R. A. P. 1972(6), Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984), and Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976)). The Court went on to review the case record and found that the evidence produced was sufficient beyond a reasonable doubt to support the first degree murder convictions and that the sentences of death imposed were neither excessive nordisproportionate to the penalty imposed in similar cases. It therefore affirmed the petitioner's convictions and death sentence. Judge, 609 A.2d at 790-91.

On June 15, 1993, Petitioner was ordered deported from Canada but the deportation order was made conditional because Petitioner had announced his intention to claim refugee status. Thereafter, he withdrew this claim and the deportation order became effective on June 8, 1994. However, on January 26, 1995, on recommendation of the Correctional Services of Canada, Mr. Judge's case was reviewed by the National Parole Board, which ordered that he be detained in Canada to serve out the balance of his sentence or until August 8, 1998.

On November 10, 1997, Petitioner wrote to the Canadian Minister of Citizenship and Immigration requesting ministerial intervention to stay the deportation order against him until such time as the United States sought to extradite him. Apparently, Petitioner was aware that if the United States sought to extradite him, Canada could ask for assurances from the United States that he would not be executed.4 Via letter dated February 18, 1998, however, the Canadian Minister refused this request. Petitioner then applied to the Federal Court of Canada for leave to commence an application for judicial review of the Minister'srefusal and for a stay of the deportation order and a declaration that his detention in Canada and deportation to the United States violated his rights under the Canadian Charter. This application was summarily denied on June 23, 1998, and Mr. Judge then petitioned the Superior Court of Quebec, which had concurrent jurisdiction with the Canadian Federal Court, for identical relief. That Court, on August 6, 1998, declined to exercise jurisdiction because proceedings had already been undertaken in the Federal Court. The following day, Petitioner filed a complaint with the Human Rights Committee of the United Nations claiming that Canada violated Articles 6, 7, 10, and 14 of the International Covenant on Civil and Political Rights (ICCPR) by deporting him to face a sentence of death in Pennsylvania. On August 9, 1998, Canada deported Petitioner to New York, and Pennsylvania thereafter had him extradited back to the Commonwealth. Eventually, the United Nations' Human Relations Committee determined, via published decision dated August 13, 2003, that Canada had violated Articles 2 and 6 of the ICCPR by deporting the petitioner from Canada to the United States where he faced the death penalty without receipt of assurances from the United States that the death penalty would not be carried out and by failing to afford him the opportunity to appeal the deportation decision prior to his having been removed from Canada. Judge v. Canada, U.N. Human Rights Committee 78thsession, ICCPR/C/78/D/829/1998 (Aug. 13, 2003).

While still confined in Canada, on January 14, 1997, Petitioner had also filed a pro se petition in the Philadelphia County Court of Common Pleas under Pennsylvania's Post Conviction Relief Act, 42 Pa. C. S. §9542, et. seq. The petition was subsequently amended on February 16, 1999, after counsel was appointed to represent him. The Court of Common Pleas dismissed the petition without a hearing on July 27, 1999, reasoning that Petitioner's fugitive status resulted in a forfeiture of his post-conviction rights. That decision was subsequently affirmed by the Pennsylvania Supreme Court on May 23, 2002. See, Commonwealth v. Judge, 568 Pa. 377, 797 A.2d 250 (2002).

On August 16, 2002, Petitioner filed a Petition for Writ of Habeas Corpus in this Court, along with a second petition under the PCRA seeking relief under the U.S. Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), which held that the United States Constitution places significant restrictions on a state's power to execute a mentally retarded offender.5 In addition, on October 10, 2003, he filed yet another petition inthe state courts captioned: Petition for Statutory Habeas Corpus Relief and Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania Constitution and/or for Statutory Post-Conviction Relief Under the Post Conviction Relief Act in reliance upon the findings of the U.N. Human Rights Committee that Canada had violated the ICCPR in deporting him to the United States. This Court then stayed the instant habeas proceedings to enable Petitioner the opportunity to exhaust these claims in the Pennsylvania courts. In an Opinion dated May 12, 2005, the Philadelphia County Court of Common Pleas determined that, because the identical claim had been raised in Petitioner's federal Habeas Corpus petition, it need not address the claim, and it therefore dismissed the PCRA application. Although it did consider the violation of international law argument, the Pennsylvania Supreme Court nevertheless affirmed the dismissal of Petitioner's third PCRA application on the ground that there was nothing in the ICCPR itself or in the decisions of the Human Rights Committee which compelled the...

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