Porter v. Pa. Dep't of Corr.

• Decision Date: 08 November 2018
• Docket Number: Civil Action No. 17-763
• Parties: ERNEST PORTER, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL, ROBERT GILMORE, and JOHN/JANE DOES, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

ERNEST PORTER, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL,ROBERT GILMORE, and JOHN/JANE DOES, Defendants.

Civil Action No. 17-763

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

November 8, 2018

Magistrate Judge Maureen P. Kelly

Re: ECF Nos. 52 and 54

OPINION AND ORDER

KELLY, Magistrate Judge

Plaintiff Ernest Porter ("Porter"), an inmate at the State Correctional Institution at Greene ("SCI - Greene") has presented a counseled civil rights complaint pursuant to 42 U.S.C. § 1983, which he has been granted leave to prosecute without prepayment of costs. Porter alleges that Defendants Robert Gilmore, the Pennsylvania Department of Corrections ("DOC"), and John E. Wetzel (collectively, "Defendants") have violated his rights provided by the Eighth and Fourteenth Amendments to the United States Constitution by continuing to confine him in the Capital Case Unit ("CCU") even though his sentence of death has been vacated.

Presently before the Court are a Motion for Summary Judgment filed on behalf of Defendants, ECF No. 52, and a Motion for Summary Judgment filed on behalf by Porter, ECF No. 54. For the reasons that follow, the Motion for Summary Judgment filed by Defendants is granted and the Motion for Summary Judgment filed by Porter is denied.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Status of Plaintiff's Sentence

Over thirty-three years ago, on April 27, 1985, Porter robbed and murdered Raymond Fiss as Fiss was opening his beauty shop in Philadelphia, Pennsylvania. Porter was convicted of, inter alia, murder in the first degree on June 27, 1986, in the Court of Common Pleas of Philadelphia County, Pennsylvania, and subsequently sentenced to death. ECF No. 55 ¶ 37. His conviction and sentence were subsequently affirmed by the Supreme Court of Pennsylvania on February 8, 1990. Commonwealth v. Porter, 569 A.2d 942 (Pa. 1990); ECF No. 55 ¶ 38.

On March 23, 1995, Porter filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541 et seq. See Commonwealth v. Porter 728 A.2d 890 (Pa. 1999). The PCRA petition was denied in the trial court and the denial was affirmed on appeal. Id.; ECF No. 55 ¶ 39. Porter filed a timely Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania on May 25, 1999. On June 26, 2003, the District Court granted in part and denied the habeas petition. Porter v. Horn, 276 F. Supp. 2d 278, 364-65 (E.D. Pa. 2003), ECF No. 55 ¶ 41. Specifically, the District Court granted relief with respect to Plaintiff's sentence of death, which was vacated, but denied the petition in all other respects:

AND NOW, this 26^th day of June 2003, upon consideration of Petitioner's Petition for Writ of Habeas Corpus (Doc No. 14), all Responses and Replies thereto, alldocuments filed in support thereof an in opposition thereto, the record of Petitioner's case in state court, the expanded record, and evidence presented at the evidentiary hearing, it is hereby ORDERED, consistent with the foregoing opinion, that:

1. Petitioner Ernest Porter's Petition for Writ of Habeas Corpus is GRANTED as to Claim V, which related to the Court's determination that there is a reasonable likelihood the jury interpreted the penalty phase jury instructions and verdict form in a way that prevented the consideration of constitutionally relevant evidence;

2. the Petition is DENIED in all other respects;

3. Petitioner's death sentence is VACATED;

4. the execution of the writ of habeas corpus is STAYED for 180 days from the date of this Order, during which period the Commonwealth of Pennsylvania may conduct a new sentencing hearing in a manner consistent with this opinion;

5. after 180 days, should the Commonwealth of Pennsylvania not have conducted a new sentence hearing, the writ shall issue and the Commonwealth shall sentence Petitioner to life imprisonment;

6. in accordance with 29 U.S.C. § 2253, a certificate of appealability is GRANTED to Petitioner regarding Claims III, IV, VI, VII, VIII, XII, XIII and XIV; and

7. if either Petitioner or Respondents file an appeal to the United States Court of Appeals for the Third Circuit, the entry of this Order will be stayed pursuant to Eastern District of Pennsylvania Local Rule 9.4 (12) pending the disposition of that appeal.

BY THE COURT:

ROBERT F. KELLY, SR. J.

No. 99-2677 (E.D. Pa. June 26, 2003), ECF No. 109 at 136-137 (the "Stay Order").

Thereafter, on August 11, 2003, and August 20, 2003, both Porter and the Commonwealth filed separate appeals to the United States Court of Appeals for the Third Circuit at Docket Nos.03-9006 and 03-9007, respectively. ECF Nos. 55-1 at 57, 69. As relevant to this matter, the Commonwealth appealed the portion of the Order vacating Porter's death sentence, and Porter appealed the denial of relief as to his underlying conviction. In accordance with Paragraph 7 of the Stay Order, the filing of these two appeals resulted in a stay of the entry of the Order vacating Porter's sentence of death.

On February 12, 2004, Porter filed a motion to stay the briefing schedules in both appeals, pending a decision by the United States Supreme Court in Banks v. Horn, No. 02-1603, 124 S. Ct. 45 (2003). ECF No. 55-1 at 71. The United States Court of Appeals for the Third Circuit granted Porter's unopposed motion and entered an order on February 12, 2004, staying the briefing schedules. The briefing schedule stay was lifted on September 8, 2004, following the Supreme Court's decision in Banks.

As set forth in this Court's prior Memorandum Order relative to Porter's Motion for Preliminary Injunction, the appeal was again delayed:

Although the stay was lifted on September 8, 2004, following the Supreme Court's decision in Banks, Plaintiff subsequently filed two motions on October 22, 2004, and October 27, 2004, respectively, asking that the briefing schedules be temporarily tolled pending the disposition of two other cases then pending in the United States Supreme Court. [ECF No. 55-1 at 60, 72]. Plaintiff subsequently withdrew one of those requests and, following the Supreme Court's decision in the second case, the briefing schedules on Plaintiff's cases were reinstated. [Id.] Plaintiff, however, filed four motions seeking an extension of time of 60 days each to file his brief and appendix, which were all granted. Id. Then, on November 9, 2006, Plaintiff filed a Motion asking to hold the appellate proceedings in abeyance pending the Pennsylvania Supreme court's disposition of Plaintiff's Petition for State Post-Conviction Relief filed on August 16, 2002, wherein he raised a claim under Atkins v. Virginia, 536 U.S. 304 (2002). [ECF No. 55-1 at 61, 73]. That motion was granted by the Third Circuit Court of Appeals on February 7, 2007, with the added directive that the parties were to file status reports regarding the PCRA proceedings every 60 days until the conclusion of the state proceedings. [ECF No. 55-1 at 61-62, 73]. [....] (It should be noted here that Plaintiff supplemented his PCRA Petition on June 15, 2006, raising a claim under Brady v. Maryland, 373 U.S. 83 (1963). Although the PCRA court issued a ruling dismissing the PCRA Petition on November 8, 2007, it did so finding that it wastime-barred and did not meet the requirement of Brady material. Com. v. Porter, 35 A.3d 4, 7-11 (Pa. 2012). The PCRA court did not address the Atkins issue and that portion of the PCRA Petition remains pending. Indeed, in its opinion affirming the denial of post-conviction relief, the Pennsylvania Supreme Court directed the PCRA court "to promptly dispose of appellant's long-pending prior PCRA petition, which raised an issue under Atkins...."Id. at 7).

Porter v. Pennsylvania Department of Corrections, No. 17-763, 2017 WL 4099784 at *2 n.2 (W.D. Pa. Sept. 15, 2017) (italics added).

In its directive to the trial court to resolve Porter's Atkins-related PCRA petition expeditiously, the Pennsylvania Supreme Court observed that the procedural delay resulted from a counseled strategy of filing serial PCRA petitions during the pendency of federal habeas review, and requesting stays in both state and federal court. "The point is simple and fundamental, obscured here only by the fact that federal counsel's strategy - pursued in both state and federal court - has been to avoid having any of appellant's collateral claims decided any time soon. This is a legally dubious, but common, strategy peculiar to certain capital defense counsel, who view delay as an end in itself for those condemned under a sentence of death." Commonwealth v. Porter, 35 A.3d 4, 15 (Pa. 2012). The Court acknowledged that proceeding with a meritorious Atkins claim had consequences, "including conditions of incarceration, which specifically counsel against the deferral of legitimate death eligibility claims." Id. at 17. Accordingly, "[t]here simply is no legitimate reason to defer decision of an Atkins claim, unless it lacks merit." Id.

Despite the above-noted 2012 Order of the Pennsylvania Supreme Court, the latest status report filed with the Third Circuit on June 12, 2018, indicates that Plaintiff's Atkins-related PCRA petition remains pending before the Court of Common Pleas of Philadelphia County. Porter's appointed habeas counsel represents that he continues to discuss settlement of this matter with the Philadelphia District Attorney's Office. ECF No. 55 ¶ 47; Porter v. Horn, Nos. 03-9006 and 03-9007, ECF No. 003113057982 (3d Cir. October 11, 2018). As a result of this procedural stalemate,the Commonwealth's appeal from the District Court's Order granting partial habeas relief with respect to Porter's death sentence remains pending in the Third Circuit, and the stay imposed by the District Court vacating Porter's death sentence is still in effect, some fifteen years later.

B. Conditions of Confinement

Upon sentencing on June 27, 1986, Porter was placed in the custody of the Pennsylvania DOC and,...