McCandless v. Vaughn

• Decision Date: 30 March 1999
• Docket Number: No. 97-1585,97-1585
• Citation: 172 F.3d 255
• Parties: Thomas McCANDLESS, Appellant, v. Donald T. VAUGHN; The Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County.
• Court: U.S. Court of Appeals — Third Circuit

Page 255

172 F.3d 255

Thomas McCANDLESS, Appellant, v. Donald T. VAUGHN; The Attorney General of the State of Pennsylvania; District Attorney for Philadelphia County.

No. 97-1585.

United States Court of Appeals, Third Circuit.

Argued Sept. 18, 1998.

Decided March 30, 1999.

Peter Goldberger (Argued), Pamela A. Wilk, Law Office of Peter Goldberger, Ardmore, PA, for Appellant.

Donna G. Zucker (Argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy District Attorney, Law Division, Arnold H. Gordon, 1st Assistant District Attorney, Lynne Abraham, District Attorney, Philadelphia, PA, for Appellees.

Before: STAPLETON and ROTH, Circuit Judges, and HOEVELER, ^* District Judge

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Thomas McCandless appeals the District Court's denial of his habeas corpus application under 28 U.S.C. § 2254, alleging that his conviction for murder and related charges in a Pennsylvania Court of Common Pleas violated his federal constitutional and statutory rights. McCandless's appeal presents four claims for habeas relief. First, he contends that admission of a prosecution witness' double hearsay testimony violated his Sixth Amendment right to confrontation. Second, he argues that a District Attorney's Office official's testimony regarding the "corroboration" condition of the cooperation agreement between that office and the prosecution's key witness amounted to improper prosecutorial vouching and deprived him of due process. Third, McCandless contends that the trial court lacked jurisdiction to try him because Pennsylvania extradited him from New Jersey in violation of the Interstate Agreement on Detainers Act. Fourth, McCandless claims that admission of the prosecution's key witness' preliminary hearing testimony violated his Sixth Amendment right to confrontation.

We conclude that McCandless's first two claims are procedurally defaulted and that his third is without merit. However, because we conclude that the prosecution did not fulfill its duty to protect McCandless's constitutional right to confront the key witness against him, we will reverse.

I.

On August 11, 1980, Philadelphia police arrived at a crime scene where Theodore Stebelski had been shot to death. An eyewitness at the scene, William Hopkins, told police that he had heard gunshots coming from a garage rented by McCandless located at 2206 East Fletcher Street in Philadelphia. According to Hopkins, after the gunshots, Stebelski crashed through the garage door, collapsed on the sidewalk, picked himself up, and ran around the corner finding refuge against a blue Buick parked nearby. Hopkins then observed another man, later identified as John Barth, running from the garage. Barth quickly returned to the garage to assist another man in removing the collapsed garage door from a blue Chevrolet. The other man sped away in the Chevrolet once it was freed. McCandless owned a 1955 Chevrolet similar to the one Hopkins observed. Barth then ran to the blue Buick where the bleeding Stebelski lay, grabbed Stebelski by the neck and shook him. After Hopkins intervened, Barth sped away in the Buick. Police and a medical rescue unit soon arrived. Despite the rescue unit's efforts, however, Stebelski died of two gunshot wounds to the shoulder and trunk of his body.

Police arrested Barth for the Stebelski murder. After negotiations with the District Attorney's office, Barth agreed to serve as a cooperating witness and gave a statement implicating McCandless and Patrick Hartey in the murder. In return, prosecutors promised that, if Barth's information was corroborated by investigators, they would (i) facilitate his release on bail, and (ii) at the successful conclusion of the case, drop the charges against him.

On September 15, 1981, the Commonwealth filed criminal complaints charging McCandless and Hartey with Stebelski's murder and issued warrants for their arrest. At the time, however, McCandless and Hartey were both incarcerated in New Jersey on unrelated offenses. Accordingly, Pennsylvania began extradition proceedings under the Interstate Agreement on Detainers Act ("IAD"). See 42 Pa. Cons.Stat. Ann. § 9101. McCandless's extradition was sought on the basis of theft and drug offenses unrelated to the Stebelski murder. Despite McCandless's resistance, he was extradited on February 17, 1982.

The Commonwealth prosecuted McCandless and Hartey jointly for the Stebelski murder. At a preliminary hearing, Barth, the only eyewitness to the shooting inside the garage, testified about the murder. Barth stated that McCandless had "pistol whipped" and shot Stebelski in the back as he fled. After the hearing, Barth disappeared and did not testify at McCandless's trial. Barth's preliminary hearing testimony, however, was admitted at trial.

The trial judge made three significant evidentiary decisions which form the basis of three of McCandless's four claims for habeas relief. First, the court determined that Barth was "unavailable" and allowed Barth's preliminary hearing testimony to be read to the jury. Second, the court allowed Joseph Murray, chief of the Homicide Unit of the District Attorney's Office, to testify regarding the terms of Barth's cooperation agreement, including two statements regarding the agreement's "corroboration" condition. Third, the court admitted alleged double hearsay testimony by Stebelski's friend, David Antovich, who had driven Stebelski to McCandless's garage on the day of the crime. Antovich testified that, while he was waiting for Stebelski, an unidentified man told him that "Tommy said to take a ride and come back in five minutes." McCandless's first name is Thomas.

On August 20, 1982, the jury found McCandless guilty of first degree murder, criminal conspiracy and possession of an instrument of crime. The court sentenced McCandless to mandatory life imprisonment on the murder count and an aggregate consecutive prison term of seven and one half to fifteen years on the other charges.

McCandless appealed his conviction to the Pennsylvania Superior Court raising approximately thirty claims of error. The Superior Court affirmed the murder and conspiracy convictions, but vacated the possession conviction. Commonwealth v. McCandles, 356 Pa.Super. 589, 512 A.2d 52 (1986) (table). McCandless then filed an application for permission to appeal to the Pennsylvania Supreme Court. The application abandoned the majority of McCandless's Superior Court claims and listed only four grounds for relief. The Pennsylvania Supreme Court denied the application for discretionary review. See Commonwealth v. McCandles, , 514 Pa. 629, 522 A.2d 557 (1987) (table).

Nine years later, on March 21, 1996, McCandless filed a petition for habeas corpus relief in the District Court. The District Court rejected all thirteen claims presented in his petition. As we have noted, McCandless appeals the District Court's resolution of only four of these claims. This court granted McCandless's application for a certificate of probable cause and we have jurisdiction under 28 U.S.C. § 2253. AEDPA's habeas corpus amendments do not apply to this case because McCandless's application was filed prior to, and was pending on, AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); United States v. Skandier, 125 F.3d 178 (3d Cir.1997).

"Because the District Court relied entirely upon the state court record and did not hold an evidentiary hearing, our review [of the District Court's decision] is plenary." Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir.1998) (citing Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir.1997)). Like the District Court, we must presume all state court factual findings to be correct, 28 U.S.C. § 2254(d), but we "exercise plenary review over state court conclusions on mixed questions of law and fact and pure issues of law." Hassine, 160 F.3d at 947; see Miller v. Fenton, 474 U.S. 104, 105, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)(holding that while "subsidiary factual questions" are subject to § 2254(d)'s presumption, the ultimate legal question of confession's constitutional voluntariness "is a matter for independent federal determination"); Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982)(ultimate question of pretrial identification procedure's constitutionality presented "mixed question of law and fact that is not governed by § 2254(d)"); Daniel v. Warden, State Correction Inst. at Huntingdon, Pa., 794 F.2d 880, 883 (3d Cir.1986) (§ 2254(d) factual presumption does not apply to ultimate legal question of whether constitutional right against double jeopardy was violated).

II.

Federal courts have the power to entertain habeas corpus applications by persons in state custody claiming that they "[are] in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As a general rule, federal courts may exercise the power to consider habeas applications only where "it appears that the applicant has exhausted the remedies available in the courts of the State." Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir.1995)(quoting 28 U.S.C. § 2254(b)). The exhaustion rule requires applicants to "fairly present" federal claims to state courts before bringing them in federal court. See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997). When a claim is not exhausted because it has not been "fairly presented" to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is "an absence of available State corrective process." 28 U.S.C. § 2254(b). In such cases, however, applicants are considered to have procedurally defaulted their claims and federal courts may not consider the merits of such claims...