Orban v. Vaughn
| Decision Date | 18 August 1997 |
| Docket Number | No. 96-2116,96-2116 |
| Citation | 123 F.3d 727 |
| Parties | Attila ORBAN v. Donald T. VAUGHN; District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Jeffrey M. Miller, Carmen C. Nasuti (argued), Nasuti & Miller, Philadelphia, PA, for Appellee.
Donna G. Zucker (argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy District Attorney, Law Division, Arnold H. Gordon, First Assistant District Attorney, Lynne Abraham, District Attorney, Philadelphia, PA, for Appellant.
Before: GREENBERG and McKEE, Circuit Judges, and GREENAWAY, * District Judge.
Respondents, Donald T. Vaughn, the District Attorney of Philadelphia County, and the Attorney General of Pennsylvania, whom we will call collectively the Commonwealth of Pennsylvania, appeal from an order entered November 6, 1996, in the district court in favor of petitioner, Attila Orban. The district court order granted Orban's petition for a writ of habeas corpus to the extent of vacating his convictions and sentences entered in state court following a nonjury trial for aggravated assault and recklessly endangering another person (two counts on each charge) arising out of a motor vehicle accident in which three people were killed and two others injured. The district court predicated its order on its conclusion that the vacated convictions were not supported by sufficient evidence. The order in all other respects denied Orban's petition. It also directed that he be released from custody unless the state court resentenced him on his remaining convictions arising from the accident. We reject the district court's conclusion that the convictions were not supported by sufficient evidence. Therefore, we will reverse the order of the district court to the extent that it granted Orban habeas corpus relief.
Orban brought this action under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. On this appeal, we exercise plenary review over the district court's legal conclusions. Alston v. Redman, 34 F.3d 1237, 1242 (3d Cir.1994). Furthermore, inasmuch as the district court relied on the state court record in concluding that the evidence was insufficient to support the convictions, we will exercise plenary review of that conclusion. See Jackson v. Byrd, 105 F.3d 145, 147 (3d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2442, 138 L.Ed.2d 201 (1997).
On Sunday, April 20, 1990, Orban was traveling north in his truck on Interstate 95 in Philadelphia. He drove his vehicle across three lanes of traffic and then hit and crossed the guardrail and struck a car heading south. Three occupants of the car hit by Orban were killed and the other two were injured seriously.
Several eyewitnesses testified at the nonjury trial in this case. Edmond F. McGowan, who also was driving north on Route 95, observed Orban's truck rapidly approaching from his rear, traveling at approximately 65-70 miles per hour. When McGowan observed Orban "going back and forth" within the right hand lane and even crossing the dotted line into the next lane, he changed lanes to avoid Orban's vehicle. After Orban passed McGowan, McGowan saw Orban proceeding in the right hand lane for one quarter mile without weaving. Then McGowan saw Orban suddenly make a 90-degree turn across all lanes of traffic and into and over the guardrail. Frank Sprangle and Steven Siegel testified that they observed Orban weaving in traffic and suddenly hit and jump over the guardrail.
At the scene of the accident Orban offered three different explanations for his behavior. He said that someone had struck his truck from behind, a friend had been driving the truck, and he must have fallen asleep at the wheel. Orban, however, later abandoned these explanations. At trial, he stated that his truck may have been hit from behind causing his head to hit the windshield, and he may have experienced a diabetic seizure which rendered him unconscious and unable to control the vehicle.
Based on these facts, the state trial judge convicted Orban of three counts of homicide by vehicle, two counts of aggravated assault, and two counts of recklessly endangering another person. Commonwealth v. Orban, Nos. 1698-1707, Feb. Term, 1991 (Phil.C.P.1991). The court sentenced Orban to a total sentence of 7 to 15 years for the aggravated assault and homicide by vehicle convictions, but suspended his sentence on the reckless endangerment counts. On July 3, 1992, the trial judge filed a comprehensive opinion explaining why its verdict should not be disturbed.
Orban appealed to the Pennsylvania Superior Court where he claimed that the verdict was against the weight of the evidence and that the evidence was insufficient to support the verdict. He further contended that his counsel ineffectively represented him at trial because he failed to present a defense of unconsciousness brought about by diabetic seizure. In January 1993, the Superior Court filed an opinion affirming Orban's convictions. The court concluded that Orban waived his argument with respect to the weight of the evidence, which in any event was meritless, and that the ineffective assistance of counsel claim failed for lack of specificity. Commonwealth v. Orban, 428 Pa.Super. 618, 626 A.2d 648 (1993) (table). The court did not make a specific disposition of Orban's insufficiency of evidence argument, though it plainly rejected that argument, indicating that the trial court's post-trial opinion "properly and adequately" addressed the issues he raised. In that opinion, the trial court found that the Commonwealth proved Orban's guilt beyond a reasonable doubt. Of course, the Superior Court's conclusion that the verdict was not against the weight of the evidence necessarily meant that it concluded that the evidence was sufficient to support the verdict. Orban then filed a petition for allocatur with the Pennsylvania Supreme Court which that court denied. Orban v. Commonwealth, 534 Pa. 649, 627 A.2d 180 (1993) (table).
In February 1994, Orban filed an action in the common pleas court under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9541 (West Supp.1997), seeking relief from his convictions, but the common pleas court dismissed that action. Commonwealth v. Orban, No. 1698-1707, Feb. Term, 1991 (Phil.C.P.1994). In June 1994, Orban appealed to the Pennsylvania Superior Court, claiming that: (1) the trial judge should have ordered PCRA counsel to amend the petition to state a claim other than the previously litigated ineffectiveness claim; (2) trial counsel was ineffective for failing to call Orban's physician as a witness to testify regarding his diabetic condition; and (3) post-verdict counsel was ineffective for failing to present his physician and trial counsel at the hearing on the post-verdict motions. On March 8, 1995, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Orban, No. 2387 Phil.1994 (Pa.Super.Ct.1995).
Orban then filed a petition for allocatur with the Pennsylvania Supreme Court. While that petition was pending he also filed a petition in the Supreme Court seeking leave to supplement his petition for allocatur so that he could rely on Commonwealth v. O'Hanlon, 539 Pa. 478, 653 A.2d 616 (1995), which the Supreme Court decided shortly before the Superior Court affirmed the order denying him PCRA relief. Orban understandably wanted to rely on O'Hanlon as that case defined recklessness in an aggravated assault case in a rather confined manner. The Supreme Court denied both the petition to supplement and the petition for allocatur on July 26, 1995. Commonwealth v. Orban, No. 0251 E.D. Alloc. Docket (Pa.1995).
Orban then filed this habeas corpus action in the district court in September 1995, claiming that:
1. the evidence was insufficient to sustain his convictions for aggravated assault and reckless endangerment;
2. the trial court deprived him of due process by inferring that petitioner was driving in a reckless manner;
3. trial counsel was ineffective in failing to call a physician who could have testified in support of petitioner's defense that petitioner's diabetic condition was a possible cause of the accident; and
4. PCRA counsel was ineffective because he presented in the collateral action a claim of ineffective counsel that had been resolved on direct appeal.
The district court referred the petition to a magistrate judge, who issued a report on February 5, 1996, recommending its denial. On November 6, 1996, the district court granted the petition in part, based on its finding that the evidence was insufficient to support the aggravated assault and reckless endangerment convictions. The court, however, rejected Orban's claims regarding the homicide by vehicle counts and ineffective assistance of counsel, and he has not cross-appealed to advance those claims before us. The district court stayed execution of its order to give the Commonwealth an opportunity to appeal, which it did, on December 6, 1996. 1
For Orban to raise a claim in federal court, he must have presented the claim at each level of the state courts. See Doctor v. Walters, 96 F.3d 675, 678 (3d. Cir.1996). In his federal habeas corpus action, Orban raised the applicability of the definition of recklessness in an aggravated assault action as set forth in Commonwealth v. O'Hanlon, 539 Pa. 478, 653 A.2d 616. But the first time Orban specifically raised the applicability of O'Hanlon in the state courts was when he sought to supplement his second petition for allocatur in the Supreme Court. However, Orban could not have raised O'Hanlon much earlier because the Supreme Court decided O'Hanlon less than two months before the Superior Court affirmed the order denying Orban's PCRA motion....
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