West v. Vaughn

• Decision Date: 28 September 1999
• Citation: 204 F.3d 53
• Parties: (3rd Cir. 2000) NATHANIEL WEST, Appellant v. DONALD VAUGHN, SUPERINTENDENT of SCI GRATERFORD; THE DISTRICT ATTORNEY OF COUNTY OF PHILA.; THE ATTORNEY GENERAL OF THE STATE OF PA. NO. 98-1820 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 53

204 F.3d 53 (3rd Cir. 2000)

NATHANIEL WEST, Appellant v. DONALD VAUGHN, SUPERINTENDENT of SCI GRATERFORD; THE DISTRICT ATTORNEY OF COUNTY OF PHILA.; THE ATTORNEY GENERAL OF THE STATE OF PA.

NO. 98-1820

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: September 28, 1999

Decided February 15, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 97-cv-02297) District Judge: Honorable James T. Giles, Chief Judge

Counsel for Appellant: ANTHONY C.H. VALE, ESQUIRE (ARGUED) Pepper Hamilton, LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103-2799

Counsel for Apples: MARILYN F. MURRAY, ESQUIRE (ARGUED) Assistant District Attorney DONNA G. ZUCKER, ESQUIRE Chief, Federal Litigation RONALD EISENBERG, ESQUIRE Deputy District Attorney Law Division ARNOLD H. GORDON First Assistant District Attorney LYNNE ABRAHAM, ESQUIRE District Attorney 1421 Arch Street Philadelphia, PA 19102-1582

Before: BECKER, Chief Judge, McKEE, and NOONAN,^* Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

In Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the Supreme Court taught that criminal convictions based on jury instructions that equate reasonable doubt with substantial doubt and grave uncertainty may suggest a lower standard of proof than that required by the Due Process Clause of the Fourteenth Amendment. In this state habeas corpus case arising under 28 U.S.C. S 2254, petitioner Nathaniel West claims that the jury charge in his Pennsylvania state court murder trial violated Cage, and that his counsel was ineffective for failing to raise the issue at trial and on appeal. This is West's second habeas corpus petition, his first having been filed before the Cage ruling. The District Court dismissed his latest filing for running a foul of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), insofar as AEDPA mandates that a new rule of law can be the basis of a successive petition only if it has been "made retroactive to cases on collateral review" by the Supreme Court. See 28 U.S.C. S 2244(b)(2)(A).

West's appeal requires that we consider the meaning of AEDPA's retroactivity requirement. The District Attorney urges a restrictive reading, limiting the "made retroactive" exception to situations in which the Supreme Court has explicitly stated that a new rule of law is to be applied retroactively or has actually applied the rule in a retroactive manner. We conclude, however, that the statutory language is not so narrow. AEDPA's text does not restrict retroactive rules to those "held retroactive" or "applied retroactively" by the Supreme Court, but rather employs the more general term "made retroactive." At the time Congress enacted AEDPA, prevailing Supreme Court precedent "made retroactive" on habeas review new rules that implicated the fundamental fairness of a criminal proceeding and related to the accuracy of the underlying conviction, see, e.g., Teague v. Lane, 489 U.S. 288 (1989), and we assume Congress to have been aware of this practice. The Supreme Court's declaration in Sullivan v. Louisiana, 508 U.S. 275 (1993), that a Cage error represents a "structural defect" that effectively nullifies the prior proceeding indicates that the Cage rule satisfies these fundamental fairness and accuracy requirements.

In our view, even though Sullivan did not arise in the habeas context, it left no doubt as to how the Cage rule fits within retroactivity analysis. Indeed, prior to AEDPA's passage, several Courts of Appeals had found Cage available for retroactive application in habeas proceedings in light of Sullivan, largely obviating the Supreme Court's need to make a more explicit announcement (and rendering it less likely that there will ever be one). We believe that, in this setting, Teague retroactivity survives AEDPA's enactment, and we hold that the constitutional rule announced by Cage v. Louisiana has indeed been "made retroactive to cases on collateral review" within the meaning of 28 U.S.C. S 2244(b)(2)(A).

Even though we rule that West's petition survives the gate keeping hurdle that the new rule must have been "made retroactive," we conclude that West cannot obtain the relief he seeks, for he clearly cannot prevail on the merits of his claim. The jury instruction in his case did not differ significantly from language that has been previously approved of by this Court and the Supreme Court. We will therefore affirm the District Court's dismissal of West's habeas petition.¹

I.

On July 15, 1983, a jury of the Philadelphia County Court of Common Pleas convicted petitioner West of first degree murder, criminal conspiracy, and possession of an instrument of crime. Prior to its deliberations, the jury received the following instruction on reasonable doubt from the trial judge, the Honorable Lisa Aversa Richette:

Now, I just want to say that we have heard these words a great deal, the reasonable doubt phrase, and I think that all three lawyers did talk about reasonable doubt in a very intelligent and correct way. I think one of them, Mr. Voluck, even gave an example that I usually give, that one about going to look at a house and as you have seen all the specs on the house, it sounds magnificent, new copper tubing and all the rest. And as you are coming out of the house, you notice a very large stain on one wall which indicates some major kind of internal leak. You don't go racing back to the real estate office with a hefty down payment. You pause and you hesitate because this is a matter of high importance to yourself. You know, buying a house is probably the largest single expenditure most of us make in our lifetime short of, God forbid, if we ever have incapacitating medical bills without medical insurance. But that's what you would do, you would pause and you would hesitate. And there are matters of high importance to all of us in our lives in which in evaluating the evidence that we are using to make that decision, we come up with the kind and quality of evidence that makes us pause and hesitate before we make a decision. Now, it is this kind of doubt that we are talking about in this case, in all criminal cases, the kind of substantial doubt that makes people pause before they plunge into action that is going to involve some important interests on their part.

So think about the evidence completely. Do you have that kind of doubt about the defendants' guilt?

. . . .

What I was saying was that if you don't have this kind of doubt, then it is your duty to convict. Now, this doesn't mean to say that you should have no doubt, that you should be persuaded beyond all doubt because that is not Mr. McGill's burden. We said that earlier that there is -there are almost no areas of human affairs in which there are no doubts. There is always a little edge of doubt somewhere. So we are not asking Mr. McGill to prove this case to you beyond a mathematical certainty, like an algebra or a calculus problem. What we are asking is that it be proved to you by the District Attorney beyond a reasonable doubt so that you don't have the kind of doubt that comes up in human affairs which makes a person pause and hesitate.

Now, this doubt, of course, has to arise from the evidence, not from your own suspicions or your own speculations or your own predispositions, but after considering the evidence if you have this doubt, then I say you have a duty to acquit.

App. 119-21 (emphasis added).

West received a life sentence. After exhausting his direct appeals in the Pennsylvania state courts, which resulted in the vacatur of his judgment of sentence as to his conviction for possessing an instrument of crime but left his other sentences undisturbed, he filed a federal habeas corpus petition that was denied on the merits on July 12, 1990, four months before the Supreme Court decided Cage v. Louisiana, 498 U.S. 39 (1990).

Cage held that jury instructions that equated reasonable doubt with "actual substantial doubt" and "grave uncertainty" in conjunction with language calling for "moral certainty" suggested a higher degree of doubt than allowed by the reasonable doubt standard.² As a result, such instructions have the potential of allowing a conviction based on proof below the minimum required by the Due Process Clause. See id. at 41. Thereafter, in Sullivan v. Louisiana, 508 U.S. 275 (1993), the Court declared that harmless error analysis does not apply to an instruction that does not meet the rule articulated in Cage.³

On May 10, 1991, West filed a petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. S 9541 et seq. He alleged ineffectiveness of counsel at both the trial and appellate levels on the grounds that his attorneys failed to object to a jury charge that allegedly mis defined "reasonable doubt" as "substantial doubt." The trial court denied his petition on March 8, 1994, and the Pennsylvania Superior Court affirmed the ruling the following year.⁴

West filed his second petition for federal habeas relief on April 1, 1997, raising the same issues as his PCRA petition, and arguing that the jury instructions he received violated Cage. Pursuant to 28 U.S.C. S 2244(b)(3)(C), a panel of this Court, after determining that West had made a prima facie showing that he met the requirements of S 2244(b)(2)(A), granted him permission to file a second claim on June 23, 1997. In so doing, the panel construed West's filing as requesting permission to file both due process and ineffective assistance of counsel claims.

In their argument before the magistrate judge to whom the case was assigned, the state appellees maintained that, notwithstanding our finding that West met the prima facie showing required to file a successive petition under S 2244, his petition was still barred by his failure to satisfy the terms of S 2244(b)(2). The magistrate judge agreed. He recommended...