Rhone v. Larkins
| Decision Date | 07 June 2016 |
| Docket Number | CIVIL ACTION NO. 99-743 |
| Parties | JOSEPH RHONE v. DAVID H. LARKINS, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Before the court is an "independent action for relief from order denying Section 2255 [sic] [2254] motion or, alternatively, for relief under Rule 60(d) F.R.Civ.P." filed by counsel for petitioner Joseph Rhone ("Rhone").
In May 1991, a jury in the Pennsylvania Court of Common Pleas for Philadelphia convicted Rhone of first degree murder, criminal conspiracy, and possession of an instrument of crime for the murder of Herschel Williams ("Williams") in November 1975. Although Rhone was taken into custody within minutes of the 1975 shooting, his trial was delayed until 1991 because, following a suppression hearing at which the court determined statements Rhone made to the police could be used against him at trial, Rhone fled while free on bail.
Rhone was represented at trial by Norris Gelman ("Gelman"). At trial, the Commonwealth offered evidence that "Rhone and a co-defendant, Robert Hoskins ran toward Williams and emptied their guns into his body" as he was loading his two young children into his car. See Commonwealth v. Rhone, No. 2750, at 1 (Pa. Ct. Comm. Pleas 1996). Rhone and Hoskins then fled in a get-away car driven by another co-defendant, Lonnie Dawson. The three men were arrested when "[a] short time later a Police Officer, having been alerted by Police Radio, saw the get-away car with the three defendants on the expressway." See id. at 2. The Commonwealth introduced evidence that Rhone made several statements to the police after he was arrested:
[i]n the first statement, given by defendant, he stated that he was just a passenger in a car driving from South Philadelphia to Germantown with nothing unusual occurring. Later, the defendant was rewarned and admitted being at the murder scene and hearing gunshots. The defendant also admitted that one co-defendant exited the car before he heard the gunshots. However, the defendant maintained that he never saw a gun and stayed in the car reading a newspaper.
Post-verdict motions were unsuccessful, and Rhone was sentenced to life in prison plus seven and a half to fifteen years.
Gelman filed a direct appeal of the conviction on behalf of Rhone to the Pennsylvania Superior Court. He argued that the Commonwealth and its witnesses made inappropriate comments to the jury at trial, that the trial judge erred in admitting certain evidence and in instructing the jury, and thatthe verdict was against the weight of the evidence. The Superior Court considered the merits of these allegations and affirmed the conviction because "ample evidence of guilt was presented at trial." See Commonwealth v. Rhone, 619 A.2d 1080, 1081 (Pa. Super Ct. 1993). The Pennsylvania Supreme Court denied Rhone's request for allowance of an appeal. See Commonwealth v. Rhone, 627 A.2d 731 (1993).
In June 1995, Rhone filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. He was appointed new counsel, Donald M. Padova, who filed an amended PCRA petition asserting that Gelman had been ineffective at trial in failing to object to or call a mistrial because of prejudicial comments by the prosecutor. He also alleged that Gelman was ineffective in failing to call a police officer who testified in a prior proceeding and would have impeached trial testimony concerning the "Jeff" cap that Rhone was wearing when arrested. He asserted that Gelman should have argued that it was error to exclude testimony concerning the alleged beating of a co-defendant. Finally, he claimed that Gelman should have raised his own ineffectiveness on appeal. The PCRA evaluated Rhone's claims on the merits and found that they were not meritorious. See Commonwealth v. Rhone, No. 2750, at 6 (Pa. Ct. Comm. Pleas1996). The Superior Court affirmed, and the Pennsylvania Supreme Court denied Rhone's request for an appeal.
In May 1998, Rhone filed a second pro se PCRA petition alleging ineffective assistance of trial counsel and PCRA counsel. This petition was dismissed as untimely.
In February 1999, Rhone filed a federal petition in this court asserting ten claims under 28 U.S.C. § 2254.1 Thefirst five claims alleged both that the prosecution committed misconduct and that the trial court erred in allowing certain evidence to be admitted. The next four claims alleged that trial counsel was ineffective. In particular, Rhone asserted that Gelman was ineffective in failing to object to comments made by the Commonwealth at trial and in failing to call "a known witness to impeach the testimony of a key witness." Histenth claim asserted that the first nine claims had been procedurally exhausted. In this regard, he claimed that PCRA counsel was ineffective in not pursuing Gelman's ineffectiveness as a ground for relief in the amended PCRA petition.
In an August 1999 Report and Recommendation ("R & R"), the magistrate judge recommended that this court deny Rhone's § 2254 petition without a hearing. The R & R noted that the first eight claims had not been presented to the Pennsylvania courts on direct appeal or in his amended PCRA petition. Thus, Rhone was not entitled to relief on these grounds. Yet, the R & R nonetheless considered Rhone's claims that trial and PCRA counsel were ineffective on the merits. The R & R explained that the claims that trial counsel was ineffective lacked merit. The R & R determined that PCRA counsel had reasonably exercised his professional judgment in pursuing only some of Rhone's claims in the amended PCRA petition. It also rejected Rhone's claims of actual innocence.
In September 1999, the court adopted the R & R of the Magistrate Judge denying Rhone's § 2254 petition. Our Court of Appeals denied a certificate of appealability. Rhone filed a third PCRA petition in May 2005, which was dismissed as untimely.
A state prisoner may seek relief in federal court if he believes that his incarceration violates federal law. See 28 U.S.C. § 2254. However, the Antiterrorism and Effective Death Penalty Act of 1996 limits the power of a federal court to award relief to a state prisoner who has filed a successive habeas corpus petition. See Tyler v. Cain, 533 U.S. 656, 660 (2001). Claims asserted in a second or successive habeas petition under § 2254 must be dismissed without prejudice if they were presented in a previous petition.2 See 28 U.S.C. § 2244(b)(1). In addition, a claim that was not previously presented must be dismissed without prejudice unless it relies on a new and retroactive rule of constitutional law, or new facts showing a high probability of actual innocence. See 28 U.S.C. § 2244(b)(2); Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005).
Likewise, habeas relief is not available unless "the applicant has exhausted the remedies available in the courts of the State." See 28 U.S.C. § 2254(b)(1)(A). A district court "normally cannot review a federal claim for post-conviction relief that has already been rejected by a state court on thebasis of an independent and adequate state procedural rule." See Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014). Claims not previously presented to the state courts are procedurally defaulted.
Nonetheless, both successive and procedurally defaulted claims are reviewable by the federal court if the petitioner demonstrates that there was cause for the default and prejudice as a result. See Norris v. Brooks, 794 F.3d 401, 404 (3d Cir. 2015); Cox, 757 F.3d at 119.
In 1999, when this court addressed Rhone's original habeas petition, we were bound by the rule announced in Coleman v. Thompson, 501 U.S. 722 (1991), "that error by counsel in state post-conviction proceedings could not serve as 'cause' sufficient to excuse procedural default of a petitioner's claim." See Cox, 757 F.3d at 119 (citing Coleman, 501 U.S. at 752-54). In 2012, the U.S. Supreme Court changed course. It held that attorney errors in initial review collateral proceedings may qualify as cause for a procedural default where:
(a) the default was caused by ineffective assistance of post-conviction counsel or the absence of counsel (b) in the initial-review collateral proceeding (i.e., the first collateral proceeding in which the claim could be heard) and (c) the underlying claim of trial counsel ineffectiveness is "substantial," meaning "the claim has some merit," analogous to the substantialityrequirement for a certificate of appealability.
Cox, 757 F.3d at 119 (emphasis added) (citing Martinez v. Ryan, 132 S. Ct. 1309, 1316-18 (U.S. 2012)). Thus, where a petitioner seeks relief by a successive petition or in spite of a procedural default, the default must have been caused by the failure of post-conviction counsel in the initial review collateral proceeding to assert a meritorious challenge to the effectiveness of trial counsel.
A year later, in Trevino, "the Supreme Court clarified that the Martinez rule applied not only to states that expressly denied permission to raise ineffective assistance claims on direct appeal . . . but also to states in which it was 'virtually impossible,' as a practical matter, to assert an ineffective assistance claim before collateral review." See Cox, 757 F.3d at 119 (citing Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013)). Where a "state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, [the] holding in Martinez applies." See Trevino, 133 S. Ct. at 1921. We will assume for present purposes that our Court of Appeals would apply Martinez to Pennsylvaniacriminal proceedings that took place prior to Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). See Cox, 757 F.3d at 124 n.8.
Counsel for Rhone has submitted a motion entitled "independent action for relief from order denying ...
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