Cook v. Philadelphia , 179 F. App'x 855 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-16-2006
Cook v. Philadelphia
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4965
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CPS-210 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4965
ROBERT L. COOK, JR.;
MARVIN SPENCE,
Appellants
v.
CITY OF PHILADELPHIA, (A Subdivision of the Commonwealth of Pennsylvania);
RONALD D. CASTILLE, (Former District Attorney of Philadelphia); LYNNE
ABRAHAM, (District Attorney of Philadelphia); JACK MCMAHON, Esq. (Former
Assistant District Attorney in Philadelphia); JANE DOE, (Employee of the City of
Philadelphia); JOHN DOE, (Employee of the City of Philadelphia); RACHEL ROE,
(Employee of the City of Philadelphia); RICHARD ROE, (Employee of the City of
Philadelphia), Individually, and in their Official Capacities
_______________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-cv-02173)
District Judge: Honorable Louis H. Pollak
_______________________________________
Submitted Under 28 U.S.C. § 1915(e)(2)(B)
April 27, 2006
Before: BARRY, SMITH AND NYGAARD, Circuit Judges
(Filed: May 16, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Appellants Robert Cook and Marvin Spence appeal from the dismissal of their
complaint under Federal Rule of Civil Procedure 12(b)(6). We will dismiss the appeal
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I.
Robert Cook and Marvin Spence are both current Pennsylvania inmates who were
tried and convicted of murder. Beyond that, their cases are unrelated except that
Assistant Philadelphia District Attorney Jack McMahon represented the Commonwealth
at both trials. In April 1997, the District Attorney’s Office (“DAO”) released a training
video depicting Jack McMahon repeatedly advising his audience to use peremptory
strikes against Black jurors, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
Because the Appellants’ procedural histories and current statuses are widely divergent,
we briefly summarize each case below.
A. Robert Cook
In 1988, a Philadelphia jury convicted Cook of first-degree murder. The trial court
sentenced him to life imprisonment and a concurrent term on a weapons offense. After
unsuccessfully pursuing an appeal and a Post-Conviction Relief Act (“PCRA”) petition,
he filed a second PCRA petition in 1997. While this petition was pending, the DAO
released the McMahon tape. Counsel filed an untimely amended petition in 1999, which
the PCRA court dismissed. An appeal was also dismissed for lack of jurisdiction. In
2003, Cook filed a petition pursuant to 28 U.S.C. § 2254 in the District Court alleging a
Batson violation. The District Court dismissed the petition holding that it was untimely
under 28 U.S.C. § 2244(d)(1). See Cook v. Beard, No. 03-05324 (E.D. Pa.).
2
A jury also found Cook guilty of a second unrelated murder in 1988, and
subsequently sentenced him to death. Again, his conviction and sentence were affirmed
on direct appeal. He filed for PCRA relief in 1999, raising a Batson claim. The PCRA
court found no violation of Batson, but granted him a new sentencing hearing. He was
subsequently resentenced to life imprisonment.
B. Marvin Spence
In 1988, Spence was arrested and charged with aggravated assault and murder. A
jury found him guilty of first-degree murder and sentenced him to death. On June 15,
2000, Spence filed a PCRA petition raising a Batson challenge. In 2004, the PCRA court
vacated the conviction and sentence on Batson grounds and granted Spence a new trial,
which is currently ongoing.
C. Current Litigation
Cook and Spence jointly filed a single complaint under 42 U.S.C. §§ 1983, 1985,
and 1986, alleging violations of their Fourth, Fifth, Eighth, and Fourteenth Amendment
rights as well as numerous state law causes of action. They also allege that the District
Attorneys and the City of Philadelphia inadequately trained and supervised Assistant
District Attorneys. Cook and Spence each request twenty million dollars in monetary
damages, plus court costs.
The District Court found that the favorable termination rule announced in Heck v.
Humphrey, 512 U.S. 477 (1994), bars both Plaintiffs from seeking relief through a civil
rights claim because a favorable ruling would necessarily imply the invalidity of the
3
convictions. We agree, but for slightly different reasons.1
II.
We have jurisdiction under 28 U.S.C. § 1291, and will dismiss an appeal under
§ 1915(e)(2)(B)(I) when the appeal is completely lacking in legal or factual merit. See
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A. Cook’s Convictions
We first address whether Heck prevents Cook from asserting his civil rights
claims. In Heck, the Supreme Court held that a litigant cannot proceed under § 1983 if
success on his claim would necessarily imply the invalidity of the fact or duration of his
conviction or sentence. 512 U.S. at 481. The Court more recently clarified this position
by stating that state prisoners must “use only habeas corpus remedies . . . when they seek
to invalidate . . . their confinement–either directly through an injunction compelling
speedier release or indirectly through a judicial determination that necessarily implies the
unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242,
1247 (2005).
Cook’s first conviction has never been reversed, vacated, or called into question.
A holding by this Court declaring that the jury was purposefully improperly empaneled
1
To the extent the Appellants seek review over the denial of their motion to amend the
complaint to add William Basemore as a Plaintiff and their motion for class certification,
the appeal with respect to these issues is meritless as well. First, Basemore never
submitted any indication of his intent to join as a Plaintiff. Second, a class action under
Federal Rule of Civil Procedure 23 will not stand where the proposed representative
parties are dismissed.
4
would call into question the validity of Cook’s conviction. See Batson, 476 U.S. at 100
(requiring reversal where a Batson violation exists). The District Court correctly found
that Cook’s claims with respect to his first conviction are barred. For similar reasons,
Cook’s claims with respect to his second conviction are also barred. The only notable
distinction between his first and second conviction is that because Cook was resentenced
on the latter, he may have the ability to raise his claims on direct appeal, thereby
potentially receiving the relief to which he believes he is entitled. This possibility does
not alter the conclusion that, at this stage, the conviction has not been invalidated.
B. Spence’s Conviction
Unlike Cook, Spence did receive relief on his Batson claim. Relying on Smith v.
Holtz, 87 F.3d 108 (3d Cir. 1996), the District Court concluded that “the jury selection
claims would not necessarily invalidate any future trial heard by a properly empaneled
jury, but, as in Smith, Spence’s claims of conspiracy and withholding of exculpatory
evidence would invalidate any possible conviction that might arise out of a new trial.”
Cook v. City of Philadelphia, No. 04-2173, Order at 7 (E.D. Pa. Oct. 12, 2005).
In Smith, we explained that the favorable termination rule applies to pending
charges as well as final convictions. See Smith, 87 F.3d at 112-13. There, the
Pennsylvania Supreme Court vacated a conviction because the trial court improperly
admitted otherwise inadmissable hearsay evidence. Smith then discovered that the
prosecution had intentionally withheld exculpatory information. Smith filed a motion to
dismiss his charges arguing that intentional misconduct places any retrial within the scope
5
of the Double Jeopardy Clause. The Pennsylvania Supreme Court agreed and dismissed
the charges holding that “the Double Jeopardy Clause of the Pennsylvania Constitution
prohibits retrial of a defendant . . . when the conduct of the prosecutor is intentionally
undertaken to prejudice the defendant to the point of the denial of a fair trial.”
Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). It continued that the intentional
withholding of material exculpatory evidence rose to the point of denying a fair trial.
We were called on to address whether the statute of limitations for filing a civil
rights complaint commenced at the time Smith discovered that the prosecution withheld
exculpatory materials, or when his charges were dismissed. Id. at 110-11. We concluded
that Heck barred the suit until the charges were dismissed because a holding in Smith’s
favor would have implied the invalidity of any future conviction. Id. at 113-14.
The District Court held that ruling in Spence’s favor with respect to the Batson
issue would not necessarily imply the invalidity of his future conviction. We assume this
is because finding that the previous jury was intentionally improperly empaneled does not
appear to affect the validity of a newly selected panel. However, a ruling against
McMahon that he intentionally excluded Black venire members to deny Spence a fair trial
would invoke Pennsylvania’s Double Jeopardy Clause and require the dismissal of all
charges. See Smith, 615 A.2d at 325. The same is true for his official liability claims.
See Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003)
(explaining that success on a failure to train case requires a showing of a conscious or
deliberate choice that a particular policy shall govern official conduct). Finally, his
6
conspiracy and failure to intervene claims under 42 U.S.C. §§ 1985 and 1986 are also
barred under Heck because to prove either claim, Spence must show that he was denied
his constitutional rights and that the officials intended or knew about the deprivation. See
Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989) (§ 1985); 42 U.S.C. §
1986; Jones v. City of Philadelphia, 491 F. Supp. 284, 288 (E.D. Pa. 1980) (requiring that
officials possess knowledge of the deprivation in order to be liable under § 1986).
Spence’s request for the appointment of counsel on appeal is denied as moot.2
For the foregoing reasons, we will dismiss the appeal under 28 U.S.C. §
1915(e)(2)(B)(I).
2
We note that District Court did not abuse its discretion in declining to address the
state causes of action. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726
(1966).