Tucker v. Wenerowicz
| Decision Date | 09 April 2015 |
| Docket Number | Civil Action No. 11–cv–00966. |
| Citation | 98 F.Supp.3d 760 |
| Parties | Terrance TUCKER, Petitioner v. Mike WENEROWICZ, Superintendent, Respondent. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Arianna J. Freeman, Esq., for Petitioner.
Molly Selzer Lorber, Esq., for Respondent.
TABLE OF CONTENTS
Page
SUMMARY OF DECISION
765
FACTUAL & PROCEDURAL BACKGROUND
766
Conviction and Sentence
766
Underlying Offense
766
State–Court Appellate Proceedings
767
Federal Proceeding
768
Petition and Response
768
Report and Recommendation and Objections by by Petitioner Pro Se
768
Counseled Objections
769
STANDARD OF REVIEW
769
“Contrary To”
770
“Unreasonable Application”
770
Factual Determinations
770
DISCUSSION
771
Petitioner's Claims
772
Ground One: Ineffective Assistance of Direct–Appeal Counsel
772
State–Court Treatment of Trial Closure Question
772
Subsequent History of Superior Court's Opinion in Constant
772
Refusal to Apply Waller
774
Application of Waller
775
Unreasonableness of Strickland Application
775
Remedy
777
Ground Two: Ineffective Assistance of Trial ial Counsel
780
CONCLUSION
781
Petitioner Terrance Tucker seeks federal habeas corpus relief from his Pennsylvania state-court conviction for Murder of the third degree, and related offenses, arising from the February 10, 2002 shooting death of Mikal Scott in Philadelphia, Pennsylvania.
For the reasons expressed below, I decline to adopt the magistrate judge's Report and Recommendation as it pertains to the first ground for relief asserted by petitioner. Instead, I grant petitioner's request for habeas corpus relief on his first claim. I do so because I agree with petitioner that his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution was violated by the failure of his direct-appeal counsel to raise the clearly meritorious claim that the trial court's closure of the courtroom to the public for the entirety of the trial violated petitioner's right to a public trial also guaranteed by the Sixth Amendment to the United States Constitution.
Specifically, petitioner is entitled to federal habeas corpus relief because the state courts' rejection of that ineffective-assistance claim is based on an objectively unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), vis-à-vis Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Put differently, the Pennsylvania state courts identified the appropriate legal principle governing petitioner's ineffective-assistance-of-appellate-counsel claim (the Strickland standard) but applied that principle in an objectively unreasonable manner based on the record in this case.
Here, the Pennsylvania courts disposed of petitioner's ineffective-assistance-of-appellate-counsel claim on prong one of the Strickland framework based on the state courts' conclusion that petitioner's underlying Sixth–Amendment public-trial claim was meritless and, thus, appellate counsel's failure to raise that claim on direct appeal could not be deemed deficient for Strickland purposes.
The Superior Court of Pennsylvania on collateral appeal under Pennsylvania's Post–Conviction Relief Act (“PCRA”)1 concluded that petitioner's underlying Sixth–Amendment public-trial claim was meritless. That conclusion rested on the Superior Court's explicit refusal to apply then-existing, binding precedent from the United States Supreme Court governing Sixth–Amendment public-trial claims (that is, Waller ). Instead, the Superior Court applied its own precedent which imposed a less-demanding standard to justify courtroom closures than that mandated by the Sixth Amendment to the United States Constitution.
The state courtroom closure here began after the parties' opening statements and continued through the end of closing arguments. That closure was a plain violation of Waller. A Sixth–Amendment public-trial violation is a structural defect in the proceedings. The remedy for such a violation is a new trial.
If appellate counsel had raised the properly-preserved and clearly-meritorious Sixth–Amendment public-trial claim on direct appeal and if the Superior Court of Pennsylvania had applied Waller to that claim, defendant would have been entitled to a new trial. Because appellate counsel did not do so, petitioner was deprived of effective assistance of appellate counsel.
Petitioner was prejudiced by that deprivation because it deprived him of a new trial. The Pennsylvania courts' denial of petitioner's ineffective-assistance-of-appellate-counsel claim was based on an unreasonable application of Strickland. Therefore, petitioner is entitled to habeas corpus relief.
Because the underlying violation was a violation of petitioner's Sixth–Amendment public-trial right, it represents structural error and, as such, entitles petitioner to a new trial.
On November 9, 2003, after a three-day trial in the Court of Common Pleas of Philadelphia County, Pennsylvania, a jury found petitioner Terrance Tucker guilty of one count of Murder of the third degree2 , one count of Recklessly endangering another person3 , one count of Criminal conspiracy4 , and one count of Possessing instruments of crime.5
On January 13, 2004 petitioner was sentenced by the trial judge, Honorable Renée Cardwell Hughes, to a term of not less than twenty, nor more than forty, years imprisonment on the third-degree murder charge; and a term of not less than ten, nor more than twenty, years imprisonment on the conspiracy charge. Judge Hughes imposed those terms of imprisonment to run consecutively, resulting in a total term of not less than thirty, nor more than sixty, years imprisonment. Petitioner received no further penalty for the charges of Recklessly endangering another person and Possessing instruments of crime.6
As stated by trial court in its May 4, 2005 Opinion issued pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, and quoted by the Superior Court of Pennsylvania in its Memorandum filed June 20, 2006 affirming petitioner's conviction and sentence on direct appeal, the facts underlying petitioner's conviction are as follows:
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Tucker v. Sci
...and issued a writ of habeas corpus, ordering the Commonwealth to either release Tucker or grant him a new trial. Tucker v. Wenerowicz, 98 F. Supp. 3d 760, 781 (E.D. Pa. 2015). The court reasoned the courtroom closure violated the rule announced by the Supreme Court of the United States in W......