U.S. v. Hammer

• Decision Date: 11 May 2009
• Docket Number: No. 06-9000.,No. 06-9001.,06-9000.,06-9001.
• Citation: 564 F.3d 628
• Parties: UNITED STATES of America, Appellee/Cross-Appellant v. David Paul HAMMER, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Third Circuit

564 F.3d 628

UNITED STATES of America, Appellee/Cross-Appellant v. David Paul HAMMER, Appellant/Cross-Appellee.

No. 06-9000.

No. 06-9001.

United States Court of Appeals, Third Circuit.

Argued January 14, 2009.

Filed: May 11, 2009.

Anne L. Saunders, Esq., Office of Federal Public Defender, Harrisburg, PA, Matthew Stiegler, Esq., [Argued], Defender Association of Philadelphia, Federal Court Division, Michael Wiseman, Esq., Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, for Appellant/Cross-Appellee.

Gwynn X. Kinsey, Jr., Esq., [Argued], U.S. Department of Justice, Criminal Division, Capital Case Unit, Washington, DC, Frederick E. Martin, Esq., Office of United States Attorney, Williamsport, PA, for Appellee/Cross-Appellant.

Before: McKEE, RENDELL and NYGAARD, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

David Paul Hammer pled guilty to murder in 1998 and was sentenced to death. He appeals from the District Court's denial of relief under 28 U.S.C. § 2255 for his guilt-phase claims. The government appeals from the District Court's order that Hammer be resentenced. We will dismiss the appeals, as we lack jurisdiction because the orders of the District Court are not final.

I. Factual Background¹

In April of 1996, while a prisoner at USP Allenwood, Hammer killed his cellmate, Andrew Marti. After tying Marti to the bed frame and gagging him with a pair of socks, Hammer strangled Marti using a rope made of strips of braided sheets. He was charged with first degree murder, and the government declared its intention to seek the death penalty.

After a psychiatric evaluation, Hammer presented an insanity defense. A forensic psychiatrist testified that Hammer suffered from dissociative identity disorder (formerly known as multiple personality disorder) and that one of his alter personalities² killed Marti; therefore, the defense argued, Hammer himself was not legally responsible. A government expert testified that Hammer did not suffer from the disorder and was responsible for his actions. About three weeks into the trial, Hammer told the court that he wanted to plead guilty. After another psychiatric evaluation, Hammer was deemed competent and pled guilty on June 22, 1998. At the change of plea proceeding, the government gave a brief summary of the evidence, and the court asked Hammer if he concurred. Hammer disagreed with some of the summary's details, but acknowledged that he tied Marti to the bed and killed him, and that before the incident he told other inmates that he was going to kill Marti. Hammer's acknowledgment of responsibility for Marti's death led the court to find intent to kill and premeditation.

The penalty phase lasted three weeks. For a jury to recommend the death penalty, it must find that the government has proven at least one statutory aggravating factor beyond a reasonable doubt. 18 U.S.C. § 3592(c). The Hammer jury found the following statutory aggravating factors unanimously and beyond a reasonable doubt: 1) that Hammer intentionally killed Marti and that he did so after substantial planning and premeditation; and 2) that he had previously been convicted of several felony offenses involving the use of a firearm. The jury also found the following non-statutory aggravating factors, unanimously and beyond a reasonable doubt: 1) that Hammer represented a continuing danger to the lives and safety of others because he was likely to commit criminal acts of violence; and 2) that he caused harm to Marti's family as a result of the murder.

The jury was then presented with 15 possible mitigating factors,³ and required to determine whether or not Hammer had proven any of them by a preponderance of the evidence. The jury found unanimously that Hammer had proved the following mitigating factors: 1) Hammer was the product of a violent, abusive, and chaotic childhood; 2) he attempted to seek help for mental difficulties while he was a child; 3) he would be sentenced to life in prison with no possibility of release if he were not sentenced to death; and 4) his friends and family would be adversely affected by his execution. The jury found unanimously that Hammer had failed to prove by a preponderance of the evidence that: 1) at the time of his offense his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired; 2) at the time of the offense he was under substantial duress; and 3) he suffers from a major mental disease or defect. The jury was not unanimous as to the remaining factors.

The jury decided that the aggravating factors sufficiently outweighed the mitigating factors and recommended a death sentence on July 24, 1998. A week later, Hammer filed a pro se motion to discharge counsel. After a lengthy inpatient psychiatric evaluation, he was found competent, and the District Court granted his motion to discharge counsel. On November 4, 1998, the court sentenced Hammer to die by lethal injection.

Hammer appealed his conviction but then vacillated repeatedly over the course of several years, filing a motion to dismiss the appeal, a motion to recall the mandate, a petition for rehearing en banc, and a petition for a writ of certiorari. Hammer filed a § 2255 motion, and then moved to dismiss it. The District Court granted the motion and dismissed counsel. On appeal, we vacated that order, granted a certificate of appealability, and remanded with instructions to determine whether, once and for all, Hammer wanted to proceed under § 2255. United States v. Hammer, No. 04-9001 (3d Cir. June 3, 2004) (per curiam order).

The District Court appointed the Federal Public Defender to represent Hammer, who filed a third amended § 2255 motion challenging both the guilt and penalty phases of his trial. The District Court rejected all of Hammer's claims relating to the guilt phase of his trial, namely, his attacks on the change of plea proceedings, the validity of the proceedings allowing him to decide pro se whether to appeal, and counsel's effectiveness. The court did grant relief as to Hammer's penalty phase claims, holding that the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it did not turn over certain materials to the defense until the § 2255 hearing in September, 2005, long after the trial. Among those materials were 33 "302 statements" from the FBI that summarized interviews with prison inmates. Some of the statements indicated that Hammer had previously braided sheets into ropes for use during sex. Hammer contends that these statements were exculpatory and relevant to the aggravating factor of substantial planning, and therefore he was entitled to a new penalty phase. The District Court found that the government's failure to turn over the 302 statements violated Brady and tainted the jury's determination that Hammer killed Marti after substantial planning and premeditation. The court also found that some of the jury's findings on mitigating factors were erroneous.

The District Court vacated Hammer's sentence and gave the government 60 days to move for a new penalty phase; the court said that if the government failed to so move, it would impose a life sentence. The government moved for the new penalty phase, but resentencing has not yet occurred. Hammer appeals the District Court's denial of guilt-phase relief, and the government appeals the District Court's order vacating the death penalty and granting resentencing.

II. Jurisdiction

Hammer argues that we do not have jurisdiction over the government's appeal of the order that he be resentenced because there is no final, appealable order until the resentencing has occurred. The government maintains that we do have jurisdiction.

On May 30, 2006, Hammer filed a Suggestion of Jurisdiction Impediment as to the government's appeal. On December 12, 2006, we declined to dismiss Hammer's appeal for lack of jurisdiction, and on December 21, 2006, we declined to dismiss the government's appeal for lack of jurisdiction.⁴ On March 21, 2007, Hammer filed a petition for a Writ of Certiorari challenging jurisdiction, and we stayed the appeals. The Supreme Court denied the petition. Hammer v. United States, ___ U.S. ___, 128 S.Ct. 43, 169 L.Ed.2d 41 (2007).

The issue before us is whether we have jurisdiction to review an order under 28 U.S.C. § 2255 granting a new sentencing hearing but denying a new trial in a capital murder prosecution. We will deal first with the appeal from the grant of a new penalty phase. Remarkably, this is an issue of first impression in the Third Circuit.

A. Jurisdiction Over the Government's Appeal of the Grant of a New Penalty Phase

Under § 2255, if the district court finds that the petitioner is entitled to relief, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." The statute also provides that an "appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." 28 U.S.C. § 2255.

In 1963, the Supreme Court spoke directly to this finality issue in the non-capital context. In Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), the two petitioners challenged the constitutionality of their sentences under § 2255, arguing that they had been denied their right of allocution at sentencing. The district court granted relief, vacated the petitioners' sentences, and ordered that they be resentenced. The government appealed, and the district court stayed the resentencing. The court of appeals reversed the district court's resentencing order. Id. at 336, 83 S.Ct. 1236.

The Supreme Court held that the court of appeals did not have jurisdiction because the district court's judgment did not become final until it granted one of...