Judge v. Beard, Civil Action No. 02-CV-6798.
| Decision Date | 13 March 2009 |
| Docket Number | Civil Action No. 02-CV-6798. |
| Citation | 611 F.Supp.2d 415 |
| Parties | Roger 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. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Stephen L. Marley, Defender Assoc. of Phila. Fed. Ct. Div., Eric J. Montroy, Federal Defender, Robert Brett Dunham, Defender Assoc. of Phila., Philadelphia, PA, for Petitioner.
Helen Kane, District Atty's Office, Thomas W. Dolgenos, John W. Goldsborough, District Attorney's Office, Philadelphia, PA, for Respondent.
This matter has been brought before the Court on Motion of the Petitioner, Roger Judge, for Partial Summary Judgment as to Claim V. of his Petition for Habeas Corpus (Docket No. 62). After careful consideration, the Motion shall be granted for the reasons set forth below.
On April 15, 1987, Petitioner was convicted of two counts of first degree murder and one count of possession of an instrument of crime for the deaths of Christopher Outterbridge and Tabitha Mitchell1 and sentenced to death following a jury trial in the Philadelphia County Court of Common Pleas. Following the denial of post-trial motions, the trial judge, the Honorable Albert F. Sabo, formally sentenced Mr. Judge to death on June 12, 1987 in accordance with the jury's sentencing verdict. Two days later, Petitioner escaped from 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 affirmed on appeal.2
On August 11, 1987, while Petitioner was a fugitive, his convictions and death sentences were certified for automatic appeal to the Pennsylvania Supreme Court. Acting sua sponte on December 22, 1989, the Pennsylvania Supreme Court issued a per curium order which limited its review to sufficiency of the evidence and 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). Despite this, Petitioner's attorney raised several claims of trial error for review. 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) (emphasis in original)). 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 nor disproportionate to the penalty imposed in similar cases. It therefore affirmed the petitioner's convictions and death sentence. Judge, 609 A.2d at 790-791.
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, the 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 U.S. sought to extradite him, Canada could ask for assurances from the U.S. that he would not be executed.3 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's refusal and for a stay of the deportation order and a declaration that his detention in Canada and deportation to the U.S. 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 and the following day, Mr. Judge 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 the 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 U.S. where he faced the death penalty without receipt of assurances from the U.S. that the 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 to the U.S. Judge v. Canada, U.N. Human Rights Committee 78th session, CCPR/ C/78/D/829/1998 (13 August 2003).
While still confined in Canada, on January 14, 1997, Mr. Judge 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. which 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, giving as the reason therefor that Petitioner's fugitive status had forfeited his postconviction rights and that decision was 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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ().4 In addition, on October 10, 2003, he filed yet another petition in the 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 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 on the grounds that there was nothing in the ICCPR itself or in the decisions of the Human Rights Committee which compelled the Pennsylvania state courts to enforce the international treaties involved. Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511 (2007). On November 7, 2007, the United States Supreme Court denied petitioner's application for writ of certiorari. Judge v. Pennsylvania, ___ U.S. ___, 128 S.Ct. 533, 169 L.Ed.2d 374 (2007).
It appearing to this Court that the petitioner had then exhausted his available state remedies, we lifted the stay of proceedings in this matter on December 12, 2007. On July 29, 2008, Petitioner filed this motion for partial summary judgment.
As a general rule, petitions for habeas corpus are treated as civil actions and the Federal Rules of Civil Procedure, including Rule 56, apply to them. See, e.g., Wilson v. Beard, Civ. A. No. 05-2667, 2006 WL 2346277, at *4, fn. 3, 2006 U.S. Dist. LEXIS 56115, at *11, fn. 3 (E.D.Pa. Aug. 9, 2006); Fed.R.Civ.P. 81(a)(4). Thus, "summary judgment is appropriate in a habeas case, as in other cases, `when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Wilson, supra., quoting Forman v. Cathel, Civ. A. No. 04-5309, 2006 WL 840392, 2006 U.S. Dist. LEXIS 18137 (D.N.J. March 23, 2006) and Fed.R.Civ.P. 56(c).
It is of course well-settled that in ruling upon a motion for summary judgment, the courts view the...
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