Kindler v. Horn, No. CIV.A.99-CV-0161.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtJoyner
Citation291 F.Supp.2d 323
PartiesJoseph J. KINDLER, v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; Donald T. Vaughn Superintendent of the State Correctional Institution at Graterford, and Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.
Docket NumberNo. CIV.A.99-CV-0161.
Decision Date24 September 2003

Page 323

291 F.Supp.2d 323
Joseph J. KINDLER,
v.
Martin HORN, Commissioner, Pennsylvania Department of Corrections; Donald T. Vaughn Superintendent of the State Correctional Institution at Graterford, and Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.
No. CIV.A.99-CV-0161.
United States District Court, E.D. Pennsylvania.
September 24, 2003.

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Kathy Swedlow, Defender Association of Phila., Federal Court Division, Matthew C. Lawry, Federal Defenders, Robert Brett Dunham, Defender Assoc. of Phila., Stephen L. Marley, Defender Assoc of Phila., Federal Court Division, Philadelphia, PA, for Joseph J. Kindler, Petitioner.

David Curtis Glebe, Office of the District Attorney, Donna G. Zucker, Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Martin Horn, Pennsylvania Department of Corrections, Donald T. Vaughn, of the State Correctional Institution at Graterford and, Joseph P. Mazurkiewicz, of the State Correctional Institution at Rockview, Respondents.

MEMORANDUM AND ORDER

JOYNER, District Judge.


This case has been brought before this Court by Petition of Joseph J. Kindler for Writ of Habeas Corpus. For the reasons which follow, the petition shall be partially granted and leave given to the Commonwealth to conduct a new sentencing hearing.

History of the Case

This petition seeks relief on behalf of the petitioner from the sentence of death which was formally imposed upon him on October 2, 1991. That sentence was the result of Petitioner's November 15, 1983 conviction by a Philadelphia County Court

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of Common Pleas jury of the first degree murder, kidnapping and criminal conspiracy to murder 22-year-old David Bernstein on July 25, 1982.

Although Petitioner filed post-verdict motions, he escaped from custody on September 19, 1984, before those motions had been decided. The Commonwealth of Pennsylvania filed a petition to dismiss the post-verdict motions because Mr. Kindler was a fugitive from justice and that petition was granted, after hearing, on the grounds that Mr. Kindler's voluntary removal of himself from the court's jurisdiction operated as a waiver of whatever rights he may have had to have his post-verdict motions considered.

Petitioner remained a fugitive until April 26, 1985 when he was arrested in Quebec, Canada on criminal and immigration charges. Extradition was requested and granted by the Canadian Minister of Justice on January 17, 1986 but Petitioner sought to have that decision reviewed in the Canadian Courts. While that review was pending, Petitioner again escaped from the prison in Montreal, Canada where he was being held and remained at large for nearly another two years until he was again spotted and arrested in St. John, New Brunswick, following the broadcast of information about him on the television show, "America's Most Wanted." The Supreme Court of Canada thereafter affirmed the decision of the Minister of Justice on September 26, 1991 and Petitioner was finally returned to Philadelphia later that day.1 As noted, Petitioner's formal

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PAGE CONTAINED FOOTNOTES

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sentencing took place on October 2, 1991, at which time he was sentenced to death on the murder conviction in addition to a consecutive ten to twenty years' imprisonment on the kidnaping conviction and a concurrent five to ten year sentence for criminal conspiracy. Petitioner then appealed to the Pennsylvania Supreme Court, which found: (1) that the trial court did not abuse its discretion in dismissing his post-trial motions and allegations of ineffective assistance of counsel as a response to his escape from custody and flight; (2) that sufficient evidence had been presented at trial to support the first-degree murder conviction and a finding of at least one aggravating circumstance; (3) that the death sentence was not the product of passion, prejudice or any other arbitrary factor; and (4) that the sentence was not excessive or disproportionate to those imposed in similar cases. Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1 (1994). Although Mr. Kindler subsequently filed a petition for a writ of certiorari to the United States Supreme Court, that petition was likewise denied on October 11, 1994.

On January 11, 1996, Petitioner sought relief by filing a petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. ("PCRA"). In that petition, Mr. Kindler raised several issues including those previously raised on direct appeal to the Pennsylvania Supreme Court as well as several claims which essentially challenged the effectiveness of both his trial and his post-trial counsel. The Philadelphia County Court of Common Pleas again found that Petitioner had waived his right to raise these arguments when he escaped and fled the jurisdiction. It therefore denied and dismissed the PCRA application without a hearing on August 15, 1996 and Petitioner appealed to the Pennsylvania Supreme Court, which subsequently affirmed the decision of the Court of Common Pleas on December 11, 1998.2

By way of the petition for writ of habeas corpus which he has filed in this Court, Petitioner asks that this Court vacate his death sentence on the following grounds:

1. That he was sentenced by a jury that believed it could not return a verdict at the penalty phase without agreeing unanimously both as to individual mitigating circumstances and as to the proper ultimate penalty in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.

2. That the "proportionality review" performed by the Pennsylvania Supreme Court did not provide him with the meaningful appellate review mandated by the Eighth and Fourteenth Amendments to the U.S. Constitution and 42 Pa.C.S. § 9711(H)(3)(III).

3. That his counsel at the penalty phase of his trial was ineffective in that he failed to develop and present available mitigating evidence on his behalf in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

4. That he was deprived of the individualized sentencing determination to which he was entitled under the Eighth and Fourteenth Amendments to the U.S. Constitution given that his penalty phase proceedings were conducted jointly with his co-defendant, Scott Shaw.

5. That prosecutorial misconduct during the guilt and penalty phase of the

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trial violated his rights to Due Process of Law.

6. That the jury failed to give effect to clear and uncontroverted evidence of mitigation in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

7. That the trial court gave a defective preponderance of the evidence instruction in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

8. That the sentencing jury was never instructed that if sentenced to life imprisonment, he would be statutorily ineligible for parole, in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

In addition, the Petition for Writ of Habeas Corpus seeks to have Mr. Kindler's conviction overturned because the notes of testimony from the severance hearing and from two days of the jury's voir dire were never transcribed and because of the cumulative prejudicial effect of all of the errors in this case. As a result of these failures, Petitioner contends that he was denied his right to meaningful appeal of his convictions and death sentence. Underscoring all of Petitioner's arguments is the assertion that to the extent that they failed to raise these arguments earlier, trial counsel and prior appellate counsel were ineffective.

Respondents at the outset assert that the petition for habeas relief must be dismissed as untimely filed and because Petitioner failed to first fairly present the claims which he seeks to raise here to the state courts. Accordingly, Respondents contend, Mr. Kindler has failed to procedurally exhaust his federal claims or they are procedurally defaulted and now unreviewable. Alternatively, Respondents submit that all of Petitioner's claims are meritless. We shall first consider whether this petition has been timely filed.

Discussion

A. Timeliness of Filing of Petition for Writ of Habeas Corpus.

In this case, the petitioner filed his habeas petition on March 13, 2000, following this court's granting of his motion for appointment of counsel, stay of execution and motion to proceed in forma pauperis on February 9, 1999. Insofar as the Pennsylvania Supreme Court denied Mr. Kindler's PCRA petition on December 11, 1998, Respondents aver that the petition for habeas corpus must be stricken as out-of-time.

The provisions governing federal habeas corpus proceedings were extensively overhauled on April 24, 1996, when the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") took effect. Under § 101 of that Act, 28 U.S.C. § 2244(d):

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized...

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    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 24, 2014
    ...A.2d 426(1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F. Supp.2d 323, 351-53 (E.D. Pa.Page 992003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide hi......
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    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • November 26, 2012
    ...703 A.2d 426(1997)] and had found nothing arbitrary or capricious about them) (certificate of appealability denied); Kindler v. Horn, 291 F. Supp.2d 323, 351-53 (E.D. Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with ......
  • Abdul-Salaam v. Beard, No. 4:02–CV–2124.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 24, 2014
    ...A.2d 426 (1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F.Supp.2d 323, 351–53 (E.D.Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with t......
  • Abdul-Salaam v. Beard, No. 4:02–CV–2124.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 24, 2014
    ...A.2d 426 (1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F.Supp.2d 323, 351–53 (E.D.Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with t......
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15 cases
  • Abdul-Salaam v. Beard, No. 4:02-CV-2124
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 24, 2014
    ...A.2d 426(1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F. Supp.2d 323, 351-53 (E.D. Pa.Page 992003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide hi......
  • Marinelli v. Beard, CIVIL ACTION NO. 4:CV-07-0173
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • November 26, 2012
    ...703 A.2d 426(1997)] and had found nothing arbitrary or capricious about them) (certificate of appealability denied); Kindler v. Horn, 291 F. Supp.2d 323, 351-53 (E.D. Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with ......
  • Abdul-Salaam v. Beard, No. 4:02–CV–2124.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 24, 2014
    ...A.2d 426 (1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F.Supp.2d 323, 351–53 (E.D.Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with t......
  • Abdul-Salaam v. Beard, No. 4:02–CV–2124.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 24, 2014
    ...A.2d 426 (1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F.Supp.2d 323, 351–53 (E.D.Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with t......
  • Request a trial to view additional results

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