Story v. Kindt

• Decision Date: 07 February 1997
• Docket Number: Civil Action No. 92-281.
• Parties: Stanton T. STORY, Petitioner, v. Warden Tom KINDT, Respondent and the Attorney General of the Commonwealth of Pennsylvania, Additional Respondent.
• Court: U.S. District Court — Western District of Pennsylvania

970 F.Supp. 435

Stanton T. STORY, Petitioner, v. Warden Tom KINDT, Respondent and the Attorney General of the Commonwealth of Pennsylvania, Additional Respondent.

Civil Action No. 92-281.

United States District Court, W.D. Pennsylvania.

February 7, 1997.

COPYRIGHT MATERIAL OMITTED

Michael D. Bartko, Shelley stark, Fed. Public Defender's Office, Pittsburgh, PA, Paul H. Titus, Titus & McConomy, Pittsburgh, PA, for plaintiff.

Stanton T. Story, White Deer, PA, pro se.

Maria V. Copetas, Thomas N. Farrell, Office of the Dist. Atty., Pittsburgh, PA, for defendants.

MEMORANDUM ORDER

BLOCH, District Judge.

Petitioner's petition for writ of habeas corpus was received by the Clerk of Court on February 12, 1992, and was referred to United States Magistrate Judge Ila Jeanne Sensenich for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The magistrate judge's report and recommendation, filed on February 17, 1997, recommended that the petition be denied and that a certificate of appealability be granted with respect to the issue of whether Petitioner was deprived of his Sixth Amendment right to be tried by an impartial jury by reason of the fact that his jury was death qualified. The parties were allowed ten (10) days from the date of service to file objections. Service was made on Petitioner by delivery to counsel and on Respondents. Objections were filed by Petitioner on March 10, 1997. Respondents filed a response to the objections on March 24, 1997. After de novo review of the pleadings and documents in the case, together with the report and recommendation and objections and response thereto, the following order is entered:

AND NOW, this 31st day of March, 1997,

IT IS HEREBY ORDERED that the petition is denied.

IT IS FURTHER ORDERED that a certificate of appealability is granted with respect to the issue of whether Petitioner was deprived of his Sixth Amendment right to be tried by an impartial jury by reason of the fact that his jury was death qualified.

The report and recommendation of Magistrate Judge Sensenich, dated February 7, 1997, is adopted as the opinion of the court.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SENSENICH, United States Magistrate Judge.

I. RECOMMENDATION

It is recommended that the petition for writ of habeas corpus be denied. It is further recommended that a certificate of appealability be granted with respect to the issue of whether Petitioner was deprived of his Sixth Amendment right to be tried by an impartial jury by reason of the fact that his jury was death qualified.

II. REPORT

Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his second conviction of first degree murder of a police officer after his first conviction was reversed on appeal by the Supreme Court of Pennsylvania. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Both convictions resulted in sentences to death which were subsequently vacated. During his first appeal the death penalty statute in existence was declared unconstitutional. Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978). His second death sentence was vacated because the new death penalty statute was enacted after commission of his crime. Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981).

This case is now back on remand from the Court of Appeals. On August 14, 1992, a report and recommendation was filed, recommending that the petition, filed on December 4, 1991 by Petitioner Stanton T. Story, be dismissed as a mixed petition because it raised some claims not exhausted in the state courts. (Doc. # 15.) On September 16, 1992, the district court adopted the report and recommendation. (Doc. # 17.) On October 1, 1992, Petitioner filed an appeal in the Court of Appeals for the Third Circuit, and on May 28, 1993, the court issued a certificate of probable cause.¹

On May 27, 1994, the Court of Appeals reversed the decision of the district court, holding that, because of extensive delay in the processing of Petitioner's Post Conviction Hearing Act (PCHA)² petition, which was attributable primarily to the Allegheny County docketing system, exhaustion should be excused and the habeas corpus petition should be addressed on the merits. This opinion was published as Story v. Kindt, 26 F.3d 402 (3d Cir.1994), cert. denied, 513 U.S. 1024, 115 S.Ct. 593, 130 L.Ed.2d 506 (1994). Following remand Petitioner was ordered to file an amended petition by September 30, 1994 and an evidentiary hearing was set for January 10, 1995. Subsequently, Petitioner appealed to the United States Supreme Court, which denied his petition for certiorari. 513 U.S. 1024, 115 S.Ct. 593, 130 L.Ed.2d 506 (1994) The evidentiary hearing scheduled for January 10, 1995 was continued generally. Petitioner then chose to exhaust all of his state court remedies and sought an extension of time to file his amended petition up to sixty (60) days after he had exhausted all of his state court remedies. His amended petition was filed on October 2, 1995 by Michael D. Bartko of the Federal Public Defender's Officer, who had been appointed to represent Petitioner in these proceedings. (Doc. # 30.) Respondents filed an answer to the amended petition on December 4, 1995 (Doc. # 31), and supplemental answers on April 18 (Doc. # 48) and June 12, 1996 (Doc. # 49). On March 12, 1996, Petitioner filed a motion for an evidentiary hearing, which the Court denied by order dated June 17, 1996 (Doc. # 46). On June 27, 1996, Petitioner filed a Motion to Reconsider His Request for an Evidentiary Hearing. (Doc. # 50.) That motion is being denied pursuant to an opinion and order filed on the same date as this report and recommendation.

In addition, the following procedural history has occurred in the state courts. Following remand by the Superior Court of Petitioner's PCHA petition (Answer Ex. 12),³ Judge George H. Ross of the Court of Common Pleas of Allegheny County, Pennsylvania appointed Jerome DeRiso to represent Petitioner on February 4, 1993. Thereafter, Judge Ross issued several orders upon Attorney DeRiso to file an amended PCHA petition (Answer Exs. 14, 18), but the amended petition was not filed until February 14, 1994.

In the amended PCHA petition, Petitioner raised the following claims:

Petitioner's conviction resulted from the ineffective assistance of counsel which, in the circumstances of this particular case, so undermined the truth-determining process, that no reliable adjudication of guilt or innocence could have taken place, as more particularly set forth as follows:

a. Petitioner maintains that his trial counsel was ineffective in that he did not interview Robert Davis, as he was the person that shot the police officer.

b. Trial counsel was ineffective for failing to interview Lafayette Jones to determine if he saw who shot the police officer, and who could have testified that Petitioner's hair was in an afro-style, and the Robert Davis' hair was platted.

c. Trial counsel was ineffective for not interviewing Jim-Jim Davis who could have testified that Petitioner's hair was in an afro-style while Davis' hair was platted.

d. Trial counsel was ineffective in that he did not interview S.T. Story, Petitioner's father, who cooked breakfast for both Petitioner and Davis the morning of the shooting. S.T. Story would have put Davis with Petitioner the morning of the shooting, would have testified that Petitioner did not have a gun, would have testified that Petitioner's hair was in an afro-style, and that Davis' hair was platted.

e. Trial counsel was ineffective as he did not interview Sandy Sommers, who was the woman identified as talking with Davis and Petitioner before the shooting, [who would have testified] that both Davis and Petitioner were in the car, that Petitioners hair was in an afro-style, and that Davis' hair was platted, and that Petitioner was a passenger in the car.

f. Trial counsel was ineffective in that he did not interview any of Lafayette Jones' family who saw Petitioner with Davis earlier that morning, and who could have testified that they were together, that Petitioner's hair was in an afro-style and that Davis' hair was platted.

Petitioner was tried before a death penalty qualified jury in the Court of Common Pleas of Allegheny County, Criminal Division, on October 12, 1979.

Although defense counsel filed the Motion for the court to prohibit the prosecution from seeking the death penalty, the Motion was denied and the death penalty qualified jury was selected. On appeal, the Pennsylvania Supreme Court ruled that the Pennsylvania Death Penalty Statute was not in effect at the time of the murder, and therefore violated the Ex Post Facto Clause of the Constitution of the United States.

Petitioner's right to an impartial jury and his Due Process Rights under the Constitution of the United States were violated by having a trial before a death penalty qualified jury.

Petitioner's sentence of life imprisonment by the Pennsylvania Supreme Court is illegal and an invalidation of the Constitution of the Commonwealth of Pennsylvania in that the Petitioner's right of allocution was denied.

(Answer Ex. 20 ¶¶ 9-13.)⁴ On February 22, 1994, an evidentiary hearing began. (Answer Ex. 21.) This hearing continued on March 1, 1994, at which time Petitioner questioned his trial counsel, Charles Schwartz, about Schwartz's alleged ineffectiveness at Petitioner's second trial in October 1979. (Answer Ex. 22.)

Before the hearing concluded, Petitioner himself read into the record the following issues he wanted to raise: trial counsel was ineffective for failing to object when Detective Robert Miller was not asked about his expert credentials, when hearsay was given by Officers Stotlemyer and Freeman, when irrelevant testimony about the cadillac was given by William...