Vando v. Clark

• Decision Date: 20 January 2023
• Docket Number: Civil Action 21-724
• Parties: LEN VANDO, Petitioner, v. MICHAEL CLARK, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

LEN VANDO, Petitioner, v. MICHAEL CLARK, et al., Respondents.

Civil Action No. 21-724

United States District Court, E.D. Pennsylvania

January 20, 2023

MEMORANDUM

EDUARDO C. ROBRENO, J.

I. INTRODUCTION

Pro se Petitioner Len Vando was convicted by a jury in the Philadelphia County Court of Common Pleas of third-degree murder in violation of 18 Pa. C.S. § 2502(c). Petitioner was sentenced to twenty (20) to forty (40) years' imprisonment for the offense. Petitioner now brings a § 2254 habeas petition raising four claims: (1) Petitioner's trial counsel was constitutionally ineffective for failing to object to the trial court's reasonable doubt instruction; (2) Petitioner's trial counsel was constitutionally ineffective for failing to file a motion to dismiss the complaint for a violation of his right to a speedy trial; (3) Petitioner's sentence was illegal due to the trial court denying him credit for time served from arrest to sentencing; and (4) Petitioner's trial and appellate counsel were ineffective for failing to argue that his prosecution was barred by double-jeopardy. See Petitioner's Federal Habeas Corpus Petition 10-25, ECF No. 1 [hereinafter “Pet.”]. Magistrate Judge Lloret issued a Report and Recommendation recommending that the petition be granted on the single issue of the constitutionality of the reasonable doubt instruction given at trial and dismissed with prejudice as moot for all remaining issues. See generally R. & R., ECF No. 38.

Petitioner does not object to the Report & Recommendation. Also, the Commonwealth has conceded that Petitioner's first claim should be granted as recommended by Magistrate Judge Lloret in that the Superior Court's denial of this claim on PCRA was an unreasonable application of clearly established Supreme Court precedent. Moreover, the Commonwealth agrees that Petitioner was prejudiced by ineffective assistance of counsel when counsel failed to object to a hypothetical included in the trial court's reasonable doubt instruction. See Commonwealth's Resp. to Pet. for Writ of Habeas Corpus 12-29, ECF No. 34 [hereinafter “Com. Resp.”]. I agree with Judge Lloret that the reasonable doubt instruction was unconstitutional and contrary to clearly established federal law as determined by the United States Supreme Court. For the reasons explained herein, Petitioner's habeas petition will be granted.

II. BACKGROUND

The facts underlying Petitioner's conviction are laid out in detail in Judge Lloret's thorough Report and Recommendation, and I will recount them briefly here. See R. & R. 2-6, ECF No. 38. The trial court summarized the facts of the case as follows:

On October 1, 2004, barmaid Maria Nunez was working at the ZIP Code Bar, at the intersection of Hope Street and Lippincott Street in Philadelphia. The ZIP Code Bar was being used as a venue for a birthday party for a member of the Latin Queens, which was the female counterpart of the Latin Kings gang, and many members of both gangs were at the party. Between 12:00 and 12:30 a.m., [Petitioner] and codefendant Juan Navarro showed up for the party. The doorman, who was supposed to search patrons to ensure that they did not bring weapons into the bar, was not at his post when Mr. Navarro arrived. Because weapons were not allowed at the bar, Mr. Navarro handed his gun to Ms. Nunez to hold, and she put it in her purse. Ms. Nunez was familiar with Mr. Navarro, having seen him at weekly meetings of the Latin Kings and Queens. At approximately the same time [Petitioner] and Mr. Navarro arrived at the bar, the victim in this case, Francisco Gonzalez, arrived with his girlfriend.

Near closing time, at around 2 a.m., Mr. Gonzalez was sitting at the bar when he reached over and, using his fingers, “plucked” the crown tattoo on Ms. Nunez's neck that signified her membership in the Latin Queens. After Ms. Nunez told Mr. Gonzalez not to touch her, he claimed to be a “First Crown” in the New York chapter of the Latin Kings. Ms. Nunez expressed disbelief that Mr. Gonzalez was a high-ranking member of the Latin Kings, and therefore asked him to state the “Five Points” of the Latin Kings, which any genuine Latin King would know. Mr. Gonzalez was unable to answer. Ms. Nunez then told another Latin King member, Clemente Garcia, that Mr. Gonzalez was claiming to be a First Crown Latin King, and that he had “plucked” her tattoo. Mr. Garcia then went to talk to [Petitioner]. Thereafter, Mr. Garcia, [Petitioner], and another Latin King, Edward Irizarry, confronted Mr. Gonzalez, telling him that they knew he was not a Latin King, and that he was being disrespectful to them. During that confrontation, Mr. Navarro stood nearby, staring up and down at Mr. Gonzalez.

Mr. Garcia then approached Ms. Nunez and asked her to give Mr. Navarro back his gun, which she had been keeping under the bar. Mr. Navarro also came over to Ms. Nunez and asked her to give him his gun back. Ms. Nunez retrieved the gun and gave it to Mr. Navarro. As Ms. Nunez looked on, [Petitioner], Mr. Garcia, and Mr. Irizarry dragged Mr. Gonzalez out of the bar. Mr. Navarro walked behind them out the door. Several other members of the Latin Kings followed.... Once everyone was outside the bar, [Petitioner] “sucker punched” Mr. Gonzalez, who immediately fell to the ground. Mr. Navarro then pulled his gun from his waistband and shot Mr. Gonzalez multiple times in the head. Everyone present then fled the scene.

Commonwealth v. Vando, No. CP-51-CR-0510182-2006, at 2-4 (Pa. Com. Pl. Dec. 29, 2011).

Based on these facts, Petitioner was charged in both federal and state court with the Gonzalez homicide. See United States v. Sosa, et al., No. 05-CR-00044, ECF Doc. No. 10 (Indictment); Commonwealth v. Vando, No. CP-51-CR-0510182-2006. After trial in federal court, Petitioner was found not guilty on conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, and using and carrying a firearm during a violent crime. However, he was found guilty on a separate conspiracy to commit murder in aid of racketeering and sentenced to 108 months imprisonment, followed by three years of supervised release. On the other hand, in state court, Petitioner's first trial ended with the jury unable to reach a verdict as to either Petitioner or his co-defendant, Navarro. After Petitioner's second state trial, a jury convicted Petitioner of one count of third-degree murder, and he was subsequently sentenced to the statutory maximum sentence of twenty to forty years' imprisonment to run consecutive to his federal sentence.

On December 22, 2014, Petitioner filed a pro se petition pursuant to the Post-Conviction Relief Act (PCRA).^[1]Petitioner then filed his federal habeas petition in this Court on January 28, 2021, while his PCRA appeal was still pending.

III. LEGAL STANDARD

A federal district court “shall not” grant a petition for habeas corpus

unless the adjudication of the claim . . . 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 . . . 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). Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)).

To prevail on ineffective assistance of counsel claims, a petitioner “must show that counsel's performance was deficient,” that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The inquiry proceeds in two steps. At step one, a petitioner must demonstrate evidence of “ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles” on the part of counsel. Gov't of Virgin Islands v. Weatherwax, 20 F.3d 572, 579 (3d Cir. 1994) (quoting ABA Standard for Criminal Justice § 4.47-68 commentary (2d ed. 1980 & Supp. 1986)). At step two, a petitioner must also show that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

If a party timely objects to a magistrate judge's report and recommendation, the court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). District courts “may accept, reject, or modify, in whole or in part,” the magistrate judge's findings or recommendations. Id.

When neither party files timely objections to a magistrate judge's report and recommendation on a dispositive issue the district court is not required to review the report and recommendation before adopting it. Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). Notwithstanding, the Third Circuit has held that “in the absence of objections . . . the better practice is for the district judge to afford some level of review to dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); see also Fed R. Civ. P. 72, 1983 advisory committee notes (“When no timely objection is filed, the court need only...