Marshall v. Wetzel, 03-cv-03308
| Decision Date | 06 November 2018 |
| Docket Number | No. 03-cv-03308,03-cv-03308 |
| Parties | JEROME MARSHALL, Petitioner, v. JOHN E. WETZEL, Commissioner, Pennsylvania Department of Corrections; ROBERT D. GILMORE, Superintendent, State Correctional Institution at Greene; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
APPEARANCES:
CHRISTIAN J. HOEY, ESQUIRE
MAUREEN CLAIRE COGGINS, ESQUIRE
On behalf of Petitioner
MAX C. KAUFMAN, ESQUIRE
On behalf of Respondents
OPINION
This matter is before the court on the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by petitioner Jerome Marshall on May 22, 2003 ("Original Petition").1 On December 29, 2005, Petitioner's Memorandum of Law in Support of Petition for a Writ of Habeas Corpus was filed.2 On December 21, 2006, respondents filed their Response to Petition for Writ of Habeas Corpus3 and a Memorandum of Law ("Original Commonwealth Brief").4 Petitioner's Reply Memorandum in Support of Petition for a writ of Habeas Corpus was filed on June 29, 2007.5 Respondents filed their Sur-Reply to Petitioner's Reply Brief on September 27, 2007.6
This case was originally assigned to a judge of this Court on May 22, 2003, re-assigned to a second judge of this Court on July 17, 2009, re-assigned to a third judge of this Court on August 9, 2010. The undersigned was first assigned to this case by an Order of re-assignment docketed on June 8, 2017.
Because of the lengthy period of time that intervened after the filing of petitioner's Original Section 2254 Petition, the parties later submitted updated briefing. On July 7, 2016, the Petition and Memorandum of Law of Petitioner, Jerome Marshall, in Support of His Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Amended Petition") was filed.7 On thesame date, a Memorandum of Law of Petitioner, Jerome Marshall in Support of His Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petitioner's Amended Memorandum")8 was filed. On May 22, 2017, the Commonwealth filed its Supplemental Response to Petition for Writ of Habeas Corpus ("Supplemental Response").9
On June 6, 2018 respondents filed a Status Report10 indicating that they agreed to a conditional grant of petitioner's writ of habeas corpus with respect to the death sentences imposed for the murders of Myndie McCoy and Karima Saunders. Respondents further indicated that after consultation with the families of the victims, they would not seek new death sentences upon resentencing in state court. On June 25, 2018, respondents filed a Status Report11 stating that respondents had discussed the conditional grant of petitioner's writ of habeas corpus with the victims' families and that they now formally do not contest the conditional grant of habeas relief concerning the two death sentences. That concession by respondents however, does not resolve all the claims in this case.
On July 20, 2018, respondents filed a letter memorandum12 outlining the claims that remain for this court's resolution.13 Specifically, there are 17 claims that relate to the death sentences imposed for the murders of Myndie McCoy and Karima Saunders that no longer needresolution.14 Accordingly, based upon respondents' concession, I grant petitioner habeas corpus relief on those 17 claims and vacate the death sentences for the murders of Myndie McCoy and Karima Saunders. Furthermore, I direct that this case be remanded to the Court of Common Pleas of Philadelphia County for resentencing consistent with respondents' concession that they will not seek the death penalty upon resentencing.
There are 16 claims that remain for decision by this court.15 For the reasons discussed below, I deny the remaining portions of Jerome Marshall's habeas corpus petition.
On August 29, 1984, after a jury trial in the Court of Common Pleas of Philadelphia County, petitioner was convicted of three counts of first degree murder for the deaths of Sharon Saunders, Karima Saunders, and Myndie McKoy.16 On August 30, 1984, the jury returned a life sentence for the murder of Sharon Saunders, and two death sentences for the murders of Karima Saunders and Myndie McKoy.17
Petitioner filed a direct appeal of his convictions and sentences. He was represented at trial and on his initial direct appeal by Michael McAllister, Esquire. See Marshall I. On December 22, 1989, the Supreme Court of Pennsylvania affirmed the convictions and the sentences with respect to the murders of Myndie McKoy and Sharon Saunders, but reversed thedeath sentence for Karima Saunders based on its determination that the jury had improperly found an aggravating factor that did not apply. See id.
Specifically, the jury had found that Karima "was killed for the purpose of preventing [her] testimony against the defendant". 42 Pa.C.S.A. § 9711(d). The Pennsylvania Supreme Court explained that Marshall I, 568 A.2d at 599. Based on the finding that the jury had improperly found an aggravating circumstance which did not apply, the court vacated the death sentence for Karima Saunders and remanded the case for a new penalty phase. Id.
A second penalty phase occurred on July 27, 1990 to sentence petitioner for the one death sentence that had been vacated.18 On July 27, 1990, the retrial jury again sentenced petitioner to death, finding one aggravating circumstance that outweighed two mitigating circumstances.19
Petitioner filed a direct appeal of the re-sentence of death for the murder of Karima Saunders. On May 24, 1994, the Supreme Court of Pennsylvania affirmed the sentence. Marshall II. Petitioner was represented at the penalty phase retrial and on appeal therefrom by Bernard L. Siegel, Esquire. See id.
On November 16, 1996, the petitioner acting pro se filed a Motion for Post-Conviction Collateral Relief. See Commonwealth v. Marshall, 812 A.2d 539, 542 (Pa. 2002) ("Marshall III"). The Post-Conviction Relief Act ("PCRA") court appointed counsel--James S. Bruno, Esquire--to represent petitioner.20 On March 13, 1998, the PCRA court dismissed petitioner's PCRA petition without a hearing.21 On December 18, 2002, the Supreme Court of Pennsylvania affirmed the PCRA court's ruling. See Marshall III.
On May 22, 2003, petitioner filed his Original Petition.22 This case was initially assigned to former United States District Judge Bruce W. Kauffman, who retired from the bench in 2009 as a senior judge. By Order of then Chief Judge, now Senior Judge, Harvey Bartle III, dated and filed July 17, 2009,23 this matter was reassigned to the docket of now deceased United States District Judge Thomas M. Golden. By Order of Judge Bartle dated August 4, 2010 and filed August 9, 2010,24 this matter was reassigned to the docket of my late colleague, United States District Judge James Knoll Gardner. By Order of former Chief Judge Petrese B. Tucker filed June 8, 2017 this case was reassigned to the undersigned.
Petitioner's Original Petition was drafted by attorneys from the Federal Community Defender Office for the Eastern District of Pennsylvania.25 On December 10, 2014, petitionerpro se filed a Motion to Remove Counsel, Appoint New Counsel, to Stay Proceedings and Hold in Abeyance; Tolling Time ("Motion to Remove Counsel").26 In the Motion to Remove Counsel, petitioner alleged that he had never given consent to being represented by the Federal Community Defender Office and requested to be appointed new counsel. On December 22, 2014, counsel from the Federal Community Defender Office filed a Motion By Counsel for Petitioner to Withdraw from Representation ("Motion to Withdraw").27
After a hearing held on December 29, 2014, by Order of Judge Gardner dated December 29, 2014 and filed January 9, 2015,28 he granted the Motion to Withdraw and removed the Federal Community Defender Office as counsel for petitioner. By Order dated December 29, 2014 and filed January 9, 2015,29 Judge Gardner granted petitioner's Motion to Remove Counsel and indicated that new counsel would be appointed to represent petitioner. By Order dated and filed January 13, 2015, Judge Gardner appointed Christian J. Hoey, Esquire, and Maureen C. Coggins, Esquire, to represent petitioner in this matter.30
On April 1, 2015, petitioner pro se filed Petitioner's Pro Se Omnibus Motion,31 in which he requested: (1) that court-appointed counsel be removed; (2) that all documents filed by the Federal Community Defender Office, including the Original Petition, be stricken; (3) that the court grant leave to file a new habeas corpus petition; and (4) that the court remand this matter tostate court for new PCRA proceedings without the involvement of the Federal Community Defender Office.
The filing of Petitioner's Pro Se Omnibus Motion prompted counsel to request a determination of petitioner's competency.32 After a hearing held on April 22, 2015, Judge Gardner granted counsel's request for a determination of competency. Accordingly, forensic psychologist Steven E. Samuel, Ph.D. traveled to the State Correctional Institution at Graterford ("SCI Graterford") to evaluate petitioner, but he refused to meet with Dr. Samuel.33
Petitioner thereafter continued to request new counsel by filing Motion to Remove Counsels, Appoint New Counsels on June 2, 2015.34 Judge Gardner held another hearing on September 17, 2015, at which time petitioner stated that he was willing to be evaluated by a different doctor appointed by the court rather than chosen by his attorneys. Petitioner also stated that he...
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