Thomas v. Varner

• Decision Date: 04 November 2005
• Docket Number: No. 04-2856.,04-2856.
• Citation: 428 F.3d 491
• Parties: Clayton THOMAS v. Ben VARNER; the District Attorney of the County of Philadelphia; the Attorney General of the State of Pennsylvania, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

428 F.3d 491

Clayton THOMAS v. Ben VARNER; the District Attorney of the County of Philadelphia; the Attorney General of the State of Pennsylvania, Appellants.

No. 04-2856.

United States Court of Appeals, Third Circuit.

Argued April 22, 2005.

Filed November 4, 2005.

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Helen T. Kane (Argued), Assistant District Attorney, Thomas W. Dolgenos, Chief, Federal Litigation, Ronald Eisenberg Deputy District Attorney, Arnold H. Gordon, First Assistant District Attorney, Lynne Abraham, District Attorney, Philadelphia, PA, for Appellants.

Daniel Silverman (Argued), Philadelphia, PA, for Appellee.

Before ROTH, FUENTES, and STAPLETON, Circuit Judges.

FUENTES, Circuit Judge.

Following a jury trial, Clayton Thomas was convicted of the shooting death of Harry James, the owner of a speakeasy in Philadelphia. He was also convicted of crimes related to the wounding of Peter Fuller, a patron of the speakeasy. Thomas alleges that his identification by Fuller was tainted by an unconstitutionally suggestive photo array and that his trial counsel was ineffective for failing to move to suppress or otherwise object to Fuller's identification at trial. After finding defense counsel's performance deficient, the District Court issued a writ of habeas corpus directing the Commonwealth to retry or release Thomas. Because we agree with the District Court that counsel's error in failing to move to suppress or object to the identification at trial fatally undermined the reliability of the verdict, we will affirm.

I.

The facts underlying this appeal were succinctly summarized by the Pennsylvania Superior Court in rejecting Thomas's appeal in his state post-conviction proceedings:

The charges stemmed from the robbery of a speakeasy located in the City of Philadelphia. Accompanied by a person who acted as lookout, [Thomas] entered the speakeasy brandishing a firearm and ordered the occupants to the floor. The proprietor of the establishment, Harry James, had been playing chess with a customer, Peter Fuller. Mr. James was fetching a beer for another customer when [Thomas] arrived. Instead of complying with [Thomas's] order, Mr. James leaped at [Thomas] and began to struggle with him. During the course of this altercation, [Thomas] shot Mr. James in the chest. The victim subsequently died of his wound. [Thomas] also shot Mr. Fuller in the shoulder. Mr. Fuller survived.

(App.684-85.)

After the robbery and shooting, the police talked with at least two eyewitnesses, Christopher Young and Fuller. Young, an acquaintance of Thomas, originally failed to identify Thomas as one of the assailants, but, after making several inconsistent statements about the incident, did identify Thomas. He later testified that he was threatened by the police, and that he feared being arrested if he did not name someone. He also had several criminal charges pending against him when he testified on behalf of the Commonwealth at Thomas's trial.

Fuller, the surviving shooting victim, described his assailant as a black male, and was shown some 750 pictures of black males arrested for robbery, but made no identification at that time.¹ Weeks later, he was shown about 10-12 more photos, but still could not identify anyone. At that time, the detective allegedly pulled two pictures from the group and asked Fuller to take a "real good" look at them, and Fuller made a tentative identification.² At the pretrial hearing and at trial, Fuller testified that he would not have made the identification if the detective had not strongly suggested that the two pictures highlighted were of the perpetrators. Fuller could not make an in-court identification at the pre-trial hearing. Because no identification was made, counsel for Thomas withdrew his pre-trial suppression motion as to identification, as there was no identification to be suppressed. However, at trial, Fuller made a spontaneous in-court identification of Thomas, and counsel failed to object or move to suppress the identification. At trial, the testimony of Young and Fuller's in-court identification were the only evidence connecting Thomas to the crime.

Thomas was convicted by a jury of second-degree murder, robbery, aggravated assault, and possession of an instrument of crime, and was sentenced to imprisonment for life. Thomas's codefendant, his son Shaurn, was acquitted of all charges against him, which arose from his alleged role as the lookout.

Thomas appealed from his conviction, and the Superior Court affirmed; Thomas did not seek certification with the Pennsylvania Supreme Court. Thomas thereafter filed pro se for state post-conviction relief, and then retained counsel, who filed an amended petition and a supplemental petition. The post-conviction court summarily denied relief on all claims, including his ineffective assistance of counsel claim, without holding an evidentiary hearing. The Superior Court affirmed and the Pennsylvania Supreme Court denied certification.

After exhausting his state remedies to no avail, Thomas filed a petition for habeas corpus in the Eastern District of Pennsylvania, making claims of (1) ineffective assistance of counsel, based on (a) trial counsel's failure to object to an alleged Bruton violation,³ and (b) counsel's failure to move to suppress an unreliable witness identification, and (2) prosecutorial misconduct in improperly bolstering the credibility of certain witnesses.⁴ The District Court referred the case to a Magistrate Judge, who held an evidentiary hearing. The Magistrate Judge recommended granting the habeas petition solely with respect to the ineffective assistance claim for failure to move to suppress the in-court identification and recommended denying it with respect to all other claims. The Commonwealth filed objections to the recommendation that the petition be granted, while Thomas did not file any objections. The District Court adopted the recommendation with respect to denying the specified claims, and, after conducting a de novo review, agreed that the petition should be granted as to the ineffective assistance claim based on the failure to move to suppress the identification for the reasons presented in its memorandum and order. The Commonwealth appeals.

II.

The Commonwealth argues that: (1) the Magistrate Judge erred in granting an evidentiary hearing and the District Court erred in relying on evidence from that hearing, as it failed to honor the presumption of correctness accorded to state court findings; (2) the District Court erred in finding that counsel's conduct was objectively unreasonable simply because a better strategy may have existed; (3) the District Court improperly placed the burden of proof on the Commonwealth to show that the evidence should not have been suppressed; and (4) Fuller's identification was cumulative, making its suppression harmless and non-prejudicial. After setting forth the general habeas corpus standards applicable here, we will consider the arguments in that order.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The District Court decided this case under the unreasonable application provision of the statute's first section. A state court decision is an unreasonable application under § 2254(d)(1) if the court "identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court's precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir.2002). "The unreasonable application test is an objective one-a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir.2005).

"AEDPA's deferential standards of review do not apply `unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States.'" Id. (quoting Everett v. Beard, 290 F.3d 500, 508 (3d Cir.2002)). In other cases, "federal habeas courts apply pre-AEDPA standards of review." Id. Under those standards, "federal habeas courts conduct[] a de novo review over pure legal questions and mixed questions of law and fact." Id.

A. The Presumption of Correctness and the Federal Evidentiary Hearing

According to the habeas corpus statute:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

As noted, the Commonwealth contends that the presumption of correctness from § 2254(e)(1) was ignored by the Magistrate Judge in granting the evidentiary hearing, and that evidence from this hearing should not have been considered by the District Court. Although the Commonwealth rests its arguments entirely on § 2254(e)(1), the propriety...