Wilkerson v. Sci, s. 15-1598 & 15-2673.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtKRAUSE, Circuit Judge.
Citation871 F.3d 221
Parties Vincent WILKERSON, Appellant in No. 15–2673 v. SUPERINTENDENT FAYETTE SCI; Attorney General Pennsylvania; District Attorney Philadelphia, Appellants in No. 15–1598
Docket NumberNos. 15-1598 & 15-2673.,s. 15-1598 & 15-2673.
Decision Date08 September 2017

871 F.3d 221

Vincent WILKERSON, Appellant in No. 15–2673
SUPERINTENDENT FAYETTE SCI; Attorney General Pennsylvania; District Attorney Philadelphia, Appellants in No. 15–1598

Nos. 15-1598 & 15-2673.

United States Court of Appeals, Third Circuit.

Argued: March 8, 2017
Filed: September 8, 2017

Max C. Kaufman [Argued], Susan E. Affronti, Ronald Eisenberg, George D. Mosee, Jr., Anne Palmer, Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Superintendent Fayette SCI, Attorney General Pennsylvania, and District Attorney Philadelphia

Maria K. Pulzetti [Argued], Brett G. Sweitzer, Leigh M. Skipper, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Vincent Wilkerson

Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, Chief District Judge.*


KRAUSE, Circuit Judge.

Following a trial in which the evidence reflected that Appellee/Cross-Appellant Vincent Wilkerson shot his victim in the chest and beat the victim with a gun, a Pennsylvania jury convicted Wilkerson of both attempted murder and aggravated assault. In his instant petition for habeas corpus, Wilkerson contends that these convictions violate the Double Jeopardy Clause because the jury instructions permitted the jury to convict on both offenses based on the shooting alone. Wilkerson also raises a challenge under

871 F.3d 225

Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the trial judge's imposition of an enhanced sentence for attempted murder based on a finding by the judge, but not the jury, that the victim suffered serious bodily injury and a related claim that his counsel was ineffective for failing to object to this finding at sentencing or to raise the issue on direct appeal. Because Wilkerson has not demonstrated that the state court's rejection of his double jeopardy claim was "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C § 2254(d)(1), he cannot meet the high bar necessary to warrant habeas relief, and the District Court erred in granting his petition on that claim. Further, because Wilkerson did not timely raise his Apprendi claim or related ineffective assistance claims, he is no more entitled to relief on those grounds. Accordingly, we will affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I. Factual Background

All charges against Wilkerson arose from a violent altercation outside of a night club in 1997. As reflected in the trial testimony, after Wilkerson approached a woman outside of the club and began talking to her and pulling on her clothing, a friend of hers, Nasir Hill, who was also leaving the night club, walked up to speak with her, prompting a heated verbal exchange in which Wilkerson accused Hill of being disrespectful for interrupting his conversation. Although the argument ended quickly and the two men separated, Wilkerson returned moments later, knocked Hill unconscious with a punch to the face, and then, after positioning Hill's body on the hood of a parked car, struck him in the head with a gun. With Hill still lying unconscious, Wilkerson stepped back two-to-four feet and shot Hill in the chest before fleeing the scene.

Wilkerson was charged with multiple crimes resulting from this incident including, among other things, attempted murder and aggravated assault. At the conclusion of his trial, the judge instructed the jury as to the various counts. As part of the instructions for the charge of attempted murder, the trial judge told the jury that a conviction would require that it find Wilkerson "did a certain act" and "[i]n this case that act is alleged to be a shooting ... of [Hill]," App. 586. With respect to the crime of aggravated assault, the trial judge instructed the jury that, in order to convict, it would have to find "that [Wilkerson] caused or attempted to cause serious bodily injury to [Hill]." App. 587. Of relevance to this appeal, the trial judge did not specify that Wilkerson's shooting Hill could not, in addition to serving as the basis for an attempted murder conviction, also serve as the "attempt[ ] to cause serious bodily injury" for the aggravated assault conviction, and, after deliberations, the jury returned a guilty verdict on both counts on a general verdict form that likewise did not specify whether the "serious bodily injury" finding underlying the aggravated assault conviction related to the shooting or the assault that preceded it.

Wilkerson was sentenced to ten-to-twenty years of incarceration on the aggravated assault conviction and twenty-to-forty years on the attempted murder conviction to be served consecutively.1 That sentence for attempted murder reflected an enhancement, allowable under Pennsylvania law only where there has been a finding of

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"serious bodily injury," 18 Pa. Cons. Stat. § 1102(c) —a finding that here was made only by the judge at sentencing and had not been submitted to the jury.

II. Procedural History

A. Direct Appeal and Collateral Review in Pennsylvania State Court

Wilkerson appealed to the Pennsylvania Superior Court and argued that his convictions for attempted murder and aggravated assault should have merged for sentencing purposes. In making this argument, Wilkerson relied on Commonwealth v. Anderson , 538 Pa. 574, 650 A.2d 20 (1994), where the Pennsylvania Supreme Court had held that aggravated assault is a lesser included offense2 of attempted murder, so that if the convictions on both counts are based on the same criminal act, the sentences for the two crimes "merge" as a matter of state law. Id. at 24. Thus, Wilkerson asserted, because the bills of information under which he was charged and the jury instructions given at his trial reflected that he was convicted of both attempted murder and aggravated assault on the basis of a single violent episode, his sentences for the two crimes should have merged.

The Superior Court rejected that argument, holding that Anderson only applies "in those instances where multiple punishments arise from a single act," and that Wilkerson's convictions stemmed from two separate acts: (1) shooting Hill in the chest (the attempted murder), and (2) striking Hill with a gun (the aggravated assault). App. 717–18. According to the Superior Court, Wilkerson's challenge therefore was "more properly characterized as a challenge to the sufficiency of the evidence underlying the convictions." App. 718. As it concluded there was sufficient evidence to support the finding that Wilkerson was guilty of both criminal acts, the Superior Court affirmed Wilkerson's convictions and sentence.

Wilkerson then filed a petition pursuant to Pennsylvania's Post-Conviction Relief Act (PCRA), raising a different claim not relevant to this appeal. The PCRA court dismissed Wilkerson's petition, and the Pennsylvania Superior Court affirmed.

B. Federal Habeas Proceedings

Having been denied relief in state court, Wilkerson filed a petition for federal habeas relief pursuant to 28 U.S.C § 2254 in the United States District Court for the Eastern District of Pennsylvania. In that petition, Wilkerson claimed, among other things, that his convictions for both attempted murder and aggravated assault on the basis of the same conduct violated the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment. A little over a year after filing his original petition, Wilkerson filed an "Amended Petition in Support of Memorandum of Law," in which he asserted for the first time that the application of the enhancement to his attempted murder sentence, reflecting the trial judge's finding of serious bodily injury, violated Apprendi because "the element of serious bodily injury was not made part of the jury instruction with respect to the charge of attempted murder." Supp. App. 38.

Wilkerson's habeas petition was referred to a Magistrate Judge who recommended that the District Court grant relief with respect to Wilkerson's double jeopardy claim and deny his petition with respect to

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all other claims. When addressing Wilkerson's Apprendi challenge, the Magistrate Judge agreed with Wilkerson that an error occurred when he was sentenced above the twenty-year statutory maximum without the requisite factual finding by the jury but held that this error was harmless and did not warrant habeas relief because it was "inconceivable that a properly-instructed jury would not find that Wilkerson created a substantial risk of Hill's death." App. 77. While the Commonwealth filed an objection to the Magistrate Judge's double jeopardy recommendation, Wilkerson did not object on any ground.

The District Court adopted the Magistrate Judge's recommendations in full. With respect to Wilkerson's double jeopardy claim, the District Court held that the state court's decision to apply a sufficiency of the evidence analysis to Wilkerson's merger claim on direct appeal was an...

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