Kindler v. Horn
| Decision Date | 03 September 2008 |
| Docket Number | No. 03-9010.,No. 03-9011.,03-9010.,03-9011. |
| Citation | 542 F.3d 70 |
| Parties | Joseph J. KINDLER, Appellee/Cross-Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections,* David Diguglielmo, Superintendent of the State Correctional Institution at Graterford, Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Appellant/Cross-Appellees. *(Amended Per Clerk's Order dated 1/6/05.) |
| Court | U.S. Court of Appeals — Third Circuit |
Marley, Esq., Maureen K. Rowley, Esq., Phila., PA, for Appellee/Cross-Appellant.
David Curtis Glebe, Esq. (Argued), Assistant District Attorney, Thomas W. Dolgenos, Esq., Chief, Federal Litigation, Chief of Appeals, Ronald Eisenberg, Esq., Deputy, Law Division, Lynne Abraham, Esq., District Attorney, Phila., PA, for Appellant/Cross-Appellees.
Before: McKEE, FUENTES, and STAPLETON, Circuit Judges.
Joseph Kindler was sentenced to death after being convicted of the first degree murder of David Bernstein. After unsuccessfully appealing in state court, Kindler filed this habeas petition in district court alleging, inter alia, that the trial court's jury instructions violated the Supreme Court's pronouncement in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and that his trial counsel had been ineffective during the penalty phase of his trial. The district court agreed that Kindler was entitled to relief under Mills, and also concluded that he had established two additional claims of prosecutorial misconduct. The court granted relief on those grounds while denying his remaining claims. The Commonwealth appealed, and Kindler filed a cross appeal in which he challenged the district court's denial of his remaining claims for relief.1 For the reasons that follow, we will affirm the district court's grant of habeas relief based on the Supreme Court's decision in Mills. We will reverse the district court's denial of relief based on ineffective assistance of counsel during the penalty phase of the trial. Because we grant Kindler's relief on his ineffective assistance of counsel and Mills claims, we decline to review his claims of prosecutorial misconduct.
Ultimately, we conclude that Kindler is entitled to the habeas relief that the district court ordered, and we will affirm.
In 1982, Joseph Kindler, Scott Shaw, and David Bernstein burglarized a store in Lower Moreland Township, Pennsylvania. Police stopped their "getaway" car as they sped from the scene, and took Shaw and Bernstein into custody. Somehow, Kindler managed to escape. However, under police questioning, Bernstein identified Kindler as the driver of the getaway car and the mastermind behind the burglary. Bernstein also offered to testify against both Kindler and Shaw. Armed with this information, police obtained a warrant and arrested Kindler. The warrant identified Bernstein as the informant, and Kindler subsequently learned that Bernstein had been granted immunity so he could testify against Kindler.
Following his arrest, and subsequent release on bail, Kindler, along with Shaw and Shaw's girlfriend, Michelle Raifer, devised a plan to kill Bernstein in order to silence him. Pursuant to that plan, Raifer lured Bernstein to the door of his apartment in the early morning hours of July 25, 1982. Kindler, who had been lying in wait, attacked Bernstein and struck him over the head with a baseball bat approximately 20 times. Acting on Kindler's instructions, Shaw then jabbed Bernstein in the ribs with an electric prod numerous times. Kindler and Shaw then dragged an immobilized Bernstein to Raifer's waiting car, leaving a 30-foot trail of blood behind. The two threw Bernstein into the trunk of the car and then drove to the banks of the Delaware River where they took Bernstein from the trunk and threw him into the river. Miraculously, Bernstein was still alive when he was thrown into the river. Upon realizing that their blows had not killed Bernstein, Kindler and Shaw managed to fill Bernstein's lungs with water and then they tied a cinder block around his neck to weigh him down.
Kindler, Shaw, and Raifer then drove back to Kindler's home. They discarded their weapons and other physical evidence by throwing them down various sewer inlets along the way. Despite those "precautions," the plan began unraveling almost immediately because police tracked down Raifer's blood-soaked car within a few hours of the crime. Bernstein's girlfriend and others had seen it during the course of the killing. Raifer confessed after police confronted her with evidence that tied her to the assault. In her confession, she implicated Kindler and Shaw, and directed police to the various sewer inlets where they had thrown the evidence. To further complicate matters, Bernstein's body surfaced the next day. During a subsequent examination, police established that he died from drowning and massive head injuries.
Kindler and Shaw were jointly tried for Bernstein's murder in state court, and the jury convicted both of first-degree murder and criminal conspiracy. During the ensuing penalty hearing, the jury found two aggravating circumstances pertaining to Kindler; viz, he killed Bernstein to prevent him from testifying, see 42 Pa. Cons. Stat. § 9711(d)(5), and he committed the killing while perpetrating a felony-kidnapping. See 42 Pa. Cons.Stat. § 9711(d)(6). Although the Commonwealth also argued that the "offense was committed by means of torture," 42 Pa. Cons.Stat. § 9711(d)(8), the jury did not find that aggravating circumstance. The jury found no mitigating circumstances in favor of Kindler. Thus, pursuant to 42 Pa. Cons.Stat. § 9711(c)(1)(iv), Kindler was given the death penalty.2 After the penalty hearing, but before the sentence was formally imposed, Kindler filed post-verdict motions with the assistance of new counsel.3
On September 19, 1984, while the post-verdict motions were pending, Kindler escaped from a Philadelphia jail where he was being held. Following the escape, the Commonwealth immediately moved to dismiss his post-verdict motions because he was then a fugitive. The trial court granted that motion holding that Kindler had waived any right to have his post-verdict motions considered by escaping.
Kindler was eventually arrested on new criminal charges as well as on immigration violations in Canada. However, soon after his arrest there, he once again managed to escape. This time, he used bed sheets to create a makeshift rope to escape from the thirteenth floor of the facility in Montreal where he was being held. He was captured once again in New Brunswick Canada in 1988.
Upon being returned to Philadelphia in 1991, Kindler moved to reinstate his post-verdict motions; the trial court denied the motion.
On October 3, 1991, the trial court formally imposed Kindler's death sentence for the murder conviction, as well as a consecutive term of 10 to 20 years imprisonment for the kidnapping, and a concurrent term of five to 10 years for criminal conspiracy. Kindler appealed arguing that the trial court should have addressed the merits of his post-verdict motions upon his capture and return to Philadelphia. The Superior Court rejected the argument and upheld his conviction and sentence; the Pennsylvania Supreme Court affirmed. See Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1 (1994). The Pennsylvania Supreme Court ruled that the trial court had properly denied Kindler's post-verdict motions without considering the merits because of Kindler's escape. Id. at 3 (). The Court concluded that the escape resulted in Kindler waiving all claims of error and preserving nothing for appeal. Nevertheless, given the death sentence, the court reviewed the record as required by 42 Pa. Cons.Stat. § 9711(h)(3), and found no error.4 The Court therefore affirmed the conviction and sentence. On October 11, 1994, the United States Supreme Court denied certiorari.
On January 11, 1996, Kindler filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA") in which he asked the court to adjudicate the merits of the claims he had raised on direct appeal. The PCRA court denied the petition without a hearing because the Pennsylvania Supreme Court had already ruled that Kindler's escape resulted in a waiver of all appellate claims he may otherwise have had. The Pennsylvania Supreme Court subsequently affirmed, agreeing that Kindler was ineligible for PCRA relief. Commonwealth v. Kindler, 554 Pa. 513, 722 A.2d 143, 148 (1998). The Court also concluded that Kindler's claims had been previously litigated because he had challenged the dismissal of his post-verdict motions on direct appeal. The Court explained: "[t]o grant [Kindler] the relief he requests in his PCRA, an evidentiary hearing on claims already forfeited by his flight from captivity, would render meaningless all previous rulings of the trial court and of this Court." Id. at 148. The Court rejected Kindler's argument that Pennsylvania's "relaxed waiver" doctrine permitted review of the merits of his claim. Although that doctrine allowed courts to look past a procedural default and reach the merits of claims in a capital case, the Court reasoned that the doctrine did not apply to Kindler because it was "his own act of becoming a fugitive that resulted in the forfeiture of the right to review of those claims." Id. at 148 n. 13. The Court denied reargument on March 15, 1999.
On March 13, 2000, Kindler filed a counseled § 2254 habeas petition in the United...
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...how unlikely). The circuits differ as to what a jury can be told about sentencing options and consequences. See, e.g. , Kindler v. Horn, 542 F.3d 70, 89 (3d Cir. 2008) (jury not required to receive clarification that “‘life’ means life” because prosecution did not argue defendant’s future ......