Terrance Lewis v. Harry Wilson , 423 F. App'x 153 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2978
___________
TERRANCE LEWIS,
Appellant
v.
HARRY WILSON;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
___________
On Appeal from the District Court
for the Eastern District Of Pennsylvania
(D.C. No. 05-cv-04864)
District Judge: Hon. Berle M. Schiller
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
On March 22, 2011
Before: FUENTES, SMITH and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: April 8, 2011)
OPINION OF THE COURT
FUENTES, Circuit Judge:
1
Appellant Terrance Lewis appeals from the District Court‟s adoption of a
Magistrate Judge‟s Report and Recommendation, dismissing all of Lewis‟ claims under
28 U.S.C. § 2254. For the reasons that follow, we will affirm.
I.
In December 1997, Terrance Lewis was charged with the August 6, 1996 second-
degree murder of Bernard Howard, a drug dealer who was shot once in the back at his
home in Philadelphia, Pennsylvania. Lewis was seventeen at the time of the shooting.
Howard‟s girlfriend, Lena Laws, told police that Lewis was a participant in the robbery
that led to Howard‟s death.
Lewis, and co-defendants Jimel Lawson and Jehmar Gladden were jointly tried in
May, 1999. Based largely on the testimony of Laws – a drug addict who had been
smoking crack shortly before the shooting and the only eyewitness to testify at trial –
Lewis was convicted of second-degree murder, robbery, and criminal conspiracy. The
Court imposed a mandatory sentence of life imprisonment under Pennsylvania law.
Lewis‟ state court appeal of his conviction was unsuccessful.
In January, 2002, Lewis filed a petition under the Pennsylvania Post Conviction
Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46. The PCRA court appointed
counsel, who filed an amended petition. The PCRA court dismissed the amended
petition on the merits and Lewis‟ appeal was unsuccessful.
On September 2, 2005, Lewis filed a second PCRA petition, which raised the issue
of newly discovered evidence in the form of a hand-written signed statement by his co-
defendant, Gladden, asserting that Lewis was not involved in the robbery and murder of
2
Howard. On March 24, 2006, while the second PCRA petition was pending, Lewis‟
sister, Tanisha Thorton, met a woman named Kizzi Baker at a bar where Thorton worked.
Baker told Thorton, and later submitted an unsigned statement asserting that she knew
Lewis personally from an earlier time when he had dated her neighbor. Baker, who lived
near Howard‟s house, claimed in her statement that on the night of the shooting she had
been standing on the corner near Howard‟s house when she saw three teenage males enter
the house. After about ten minutes, she stated that she heard a gunshot, after which three
teenage males, none of whom were Lewis, left the house.
After counsel was appointed by the PCRA court, Lewis filed an amended petition,
alleging as grounds for relief that newly discovered evidence and his “actual innocence”1
of the crimes for which he was convicted “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place” under 42 Pa.
C.S. § 9543(a)(2)(i). Although the second amended PCRA petition did not assert that
Lewis‟ trial counsel was ineffective in failing to investigate and present Baker as a
witness, Lewis‟ May 23, 2006 memorandum did raise that argument. On August 18, the
PCRA court gave Lewis notice of its intent to dismiss the petition due to untimeliness.
Although Lewis filed an objection, the PCRA court dismissed the petition on September
21 because it had not been filed within one year of the date that Lewis‟ judgment of
1
In Schlup v. Delo, 513 U.S. 298, 327 (1995), the Supreme Court applied the term
“actual innocence” to petitioners who are able to show on collateral review that “it is
more likely than not that no reasonable juror would have convicted [them] in the light of .
. . new evidence.” Petitioners for whom a finding of “actual innocence” has been made
are able to “avoid a procedural bar to the consideration of the merits of [their]
constitutional claims.” Id.3
sentence became final as required by 42 Pa. C.S. § 9545(b)(1). Further, the PCRA Court,
following argument, “determined that [Lewis] did not qualify under any of the statutory
exceptions to the timeliness rule” under 42 Pa. C.S. § 9545(b)(1)(i) through (iii).2 (Supp.
App. at 5.)
Lewis appealed this decision to the Pennsylvania Superior Court, arguing that the
PCRA court had erroneously dismissed his petition because he had timely presented a
claim of “after discovered evidence” under § 9545(b)(1)(ii) and because his claim for
“actual innocence” should never be time barred. On November 10, 2006 the PCRA court
ordered Lewis to file a “statement of matters complained of on appeal” with it, as
required by Pa. R. App. P. 1925(b).3 While a statement was apparently served on the
PCRA court judge on November 17, the Superior Court found no evidence that it had
ever been filed with the Court, as required by Rule 1925(b). Finding that failure to
comply with Rule 1925(b) was inexcusable under Pennsylvania Supreme Court
precedent, at least where the appellant‟s counsel had not “utterly abandoned the matter,
leaving appellant . . . to his own devices,” (Supp. App. at 10), the Superior Court found
2
42 Pa.C.S. § 9545(b)(1) provides three exceptions to the one-year statute of limitations
for filing PCRA petitions. The second and potentially pertinent exception here, applies
where “facts upon which the claim is predicated were unknown to the petitioner and
could not have been ascertained by the exercise of due diligence[.]” Id. at §
9545(b)(1)(ii). PCRA petitions invoking this exception must “be filed within 60 days of
the date the claim could have been presented.” Id. at § 9545(b)(2).
3
Pa. R. App. P. 1925(b) provides that “[i]f the judge entering the order giving rise to the
notice of appeal . . . desires clarification of the errors complained of on appeal, the judge
may enter an order directing the appellant to file of record in the trial court and serve on
the judge a concise statement of the errors complained of on appeal.” The filing and
service of the statement must occur within 21 days of the order‟s entry. Id. at 1925(b)(2).
4
that Lewis had waived his issues on appeal and affirmed the PCRA court. The
Pennsylvania Supreme Court denied his request for an appeal on April 29, 2008.
While his second PCRA petition was pending, on September 12, 2005, Lewis also
filed a federal habeas petition under 28 U.S.C. § 2254, raising four grounds for relief.
The first three grounds for relief, relating to ineffective assistance of counsel on direct
appeal, were dismissed by the District Court and have not been appealed. Ground four
asserted that newly discovered evidence, in the form of co-defendant Gladden‟s signed
statement, exonerated Lewis. The District Court referred the 2254 petition to the
assigned Magistrate Judge, who issued a stay pending the resolution of the second PCRA
petition. While Lewis‟ PCRA petition was being appealed, the Magistrate Judge granted
Lewis‟ request to amend his 2254 petition to include new evidence based upon the
statements of Baker. Lewis filed supplemental briefing adding three new grounds for
relief. Ground five asserted that newly discovered evidence, in the form of both Gladden
and Baker‟s statements, established Lewis‟ “actual innocence,” thereby excusing him
from any procedural defaults. Ground six asserted that the Pennsylvania state courts
erred in determining that his “actual innocence” claim had been untimely presented.
Ground seven asserted that trial counsel had been ineffective when he failed to conduct
any pre-trial investigation, which Lewis contends would have uncovered the testimony of
Baker.
On April 29, 2009, the Magistrate Judge held an evidentiary hearing at which
Kizzi Baker, co-defendant Jehmar Gladden, Lewis‟ sister, Tanisha Thorton, and Lewis
himself each testified. The Magistrate Judge found that Baker and Gladden each
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“testified credibly and consistently with their prior affidavits” while “Thornton
corroborated [ ] Baker‟s explanation of how they met and what they discussed concerning
[Lewis‟] innocence.” (App. at 15.) Additionally, Lewis testified that he was not in
Bernard Howard‟s home on the night of the shooting and that prior to his trial he had
rejected a plea bargain to serve no more than ten years if he testified against Lawson, but
did not do so because he was not at the house and could not truthfully testify as to what
happened.4
The Magistrate Judge first dismissed Lewis‟ sixth ground for relief, holding that
claims based upon state law or procedural errors made during state collateral proceedings
are not reviewable under 28 U.S.C. § 2254. Lewis does not challenge this holding on
appeal.
The Magistrate Judge next found that because Lewis failed to raise his seventh
ground for relief – relating to trial counsel‟s failure to investigate and discover Baker – in
the appeal of his second PCRA petition, and because the statute of limitations for such a
claim had now expired, that claim had been procedurally defaulted. However, based
upon testimony given at the April 29 evidentiary hearing, the Magistrate Judge found that
Lewis was “actually innocent” under Schlup v. Delo, 513 U.S. 298 (1995), as alleged in
his fourth and fifth grounds for relief, and that he could thereby overcome the procedural
default of his ineffective assistance claim. 5 In Schlup, the Supreme Court held that a
4
Trial counsel submitted an unsworn declaration confirming that the Commonwealth did
indeed offer Lewis a deal if he would testify against Lawson, but that Lewis had rejected
the deal after claiming he was innocent.
5
Specifically, the Magistrate stated:
6
federal habeas petitioner may overcome a procedural bar to the consideration of the
merits of his constitutional claims where he has shown a “miscarriage of justice” by
demonstrating “that it is more likely than not that no reasonable juror would have
convicted him,” and therefore that he is “actually innocent.” Id. at 326-27.
However, the Magistrate Judge held that despite the finding of “actual innocence,”
Lewis could not proceed with his ineffective assistance claim under § 2254(e)(2) of
AEDPA because he failed to diligently develop a factual record at the state level to show
that his trial counsel‟s representation fell below an objective standard of reasonableness
as required by Strickland v. Washington, 466 U.S. 668 (1984). See 28 U.S.C. §
2254(e)(2) (“If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the claim unless
[certain exceptions are met].”). The Magistrate Judge also found that Lewis could not
seek relief directly upon his claim of “actual innocence,” given the Supreme Court‟s
ruling that “actual innocence” is merely a gateway to the consideration of otherwise
defaulted claims, rather than an independent basis for relief. See Herrera v. Collins, 506
U.S. 390, 404 (1993). Accordingly, the Magistrate Judge recommended that Lewis‟
petition be dismissed, and the District Court adopted the recommendation.
The court found the testimony of these witnesses to be credible,
hence, the court believes that Petitioner is innocent. Moreover, in the court's
view, in light of the new evidence Petitioner presented at the April 29, 2009
hearing, it is more likely than not that no reasonable juror would have
convicted Petitioner. Accordingly, his procedural default is excusable.
(App. at 15-16.)
7
II.
On appeal, Lewis contends that the Magistrate Judge erred in applying §
2254(e)(2) to his case. Before we address Lewis‟ arguments, we briefly describe and
analyze the statutory scheme of § 2254(e)(2).6
A.
Section 2254(e)(2) of AEDPA provides that:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that –
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
In other words, if a petitioner has “failed to develop the factual basis of a claim” in
the course of his state collateral proceedings, the petitioner is not entitled to a
hearing in federal court unless he relies on newly discovered evidence or a new
retroactive rule of constitutional law, and is “actually innocent” as demonstrated
by clear and convincing evidence.
Moreover, as to what constitutes a “fail[ure] to develop the factual basis of a
claim[,]” the Supreme Court in Williams v. Taylor, 529 U.S. 420, 432 (2000), explained
6
The District Court had subject matter jurisdiction over this matter under 28 U.S.C. §
2254. This Court exercises jurisdiction over Lewis‟s appeal under 28 U.S.C. §
2253(c)(1)(A).
8
that such a failure will be established where “there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner‟s counsel.” Under this test, “[d]iligence .
. . depends upon whether the prisoner made a reasonable attempt, in light of the
information available at the time, to investigate and pursue claims in state court . . .” Id.
at 435. Further, “[d]iligence will require in the usual case that the prisoner, at a
minimum, seek an evidentiary hearing in state court in the manner prescribed by state
law.” Id. at 437.
To summarize the requirements of § 2254(e)(2), where a petitioner has
diligently developed the factual basis for his collateral claims in state court, he
may obtain a hearing in federal court. Further, even where he has failed to
diligently develop the factual record in state court, he may nevertheless obtain a
hearing if he relies on newly discovered evidence or new constitutional rulings
which are retroactively applicable to him, and establishes his “actual innocence”
by clear and convincing evidence. Outside of these conditions, however, a
petitioner may not obtain a hearing on his collateral claims in federal court.
With these considerations in mind, we turn to Lewis‟ arguments that (1) the
Magistrate Judge‟s finding of “actual innocence” makes it unnecessary for him to
meet the requirements of § 2254(e)(2), and (2) that even if he must comply with §
2254(e)(2), he did so by diligently attempting to develop the factual basis for his
claim before the PCRA court.
B.
9
Lewis first contends that the Magistrate Judge‟s finding that he was “actually
innocent” overcomes the bar of § 2254(e)(2), just as it overcame the procedural default
bar under Schlup. Prior to the 1996 passage of AEDPA, Lewis‟ argument that the
“actual innocence” exception should apply to failures to develop the factual basis of a
claim would have had merit. See Cristin v. Brennan, 281 F.3d 404, 414 (3d Cir. 2002)
(noting that the Supreme Court‟s holding in Keeney v. Tamayo-Reyes, 504 U.S. 1(1992), applied the same “actual innocence” or “miscarriage of justice standard[ ]” when
considering a petitioner‟s “failure to develop a factual record” as it did when considering
a “litigant‟s procedural default”).
However, in Williams v. Taylor, 529 U.S. 420, 432 (2000), the Supreme Court
held that the language in § 2254(e)(2) of AEDPA expressly overturned the miscarriage of
justice “actual innocence” exception in Keeney:
To be sure, in requiring that prisoners who have not been diligent satisfy §
2254(e)(2) . . . and in eliminating a freestanding „miscarriage of justice‟
exception, Congress raised the bar Keeney imposed on prisoners who were
not diligent in state-court proceedings.
529 U.S. at 433 (emphasis supplied). This change occurred because, as explained above,
the language of § 2254(e)(2) now requires that to overcome the failure to develop a
record, a petitioner must show both that “there is a convincing claim of innocence” under
§ 2254(e)(2)(B), and that “the legal or factual basis of the claims did not exist at the time
of state-court proceedings” under §§ 2254(e)(2)(A)(i) or (ii). Taylor, 529 at 435-36.
Accordingly, because § 2254(e)(2) eliminated the freestanding “actual innocence”
exception for failures to develop the factual basis of a claim in state collateral
10
proceedings, the Magistrate Judge‟s finding that Lewis is “actually innocent” does not, by
itself, overcome § 2254(e)(2). Further, the Magistrate Judge was correct to hold that
neither § 2254(e)(2)(A)(i) nor § 2254(e)(2)(A) (ii) applies here. Because Lewis‟ PCRA
counsel had already learned of Baker and what she would testify to at the time of his
PCRA proceedings in the Pennsylvania courts, and because there was no new rule of
constitutional law applicable to him, Lewis failed to satisfy the requirements of §§
2254(e)(2)(A)(i) or (ii).
C.
Lewis next argues that even if § 2254(e)(2) is applicable to him, despite the
finding of “actual innocence,” the Magistrate Judge misapplied the diligence standard
under Taylor. Lewis argues that he and his counsel were diligent because they requested
a hearing on his ineffective assistance claim, which he argues is all that is required to
show diligence in these circumstances under Third Circuit precedent.
The Magistrate Judge, however, found that Lewis, through his PCRA counsel,
had lacked diligence in (1) failing to proffer his trial counsel‟s testimony regarding the
claimed deficient performance to the PCRA court, and (2) failing to properly pursue the
appeal of the dismissal of the PCRA petition before the Superior Court. Although not
stated as a basis for the ruling by the Magistrate Judge, Lewis‟ counsel also lacked
diligence in failing to satisfy the statute of limitations for the second PCRA petition,
ultimately leading to its dismissal.
As to the question of whether Lewis was required to do more than request a
hearing on his ineffective assistance claim, such as submitting an affidavit from his trial
11
counsel or requesting that his trial counsel testify, both the Magistrate Judge and Lewis
have cited to cases that are arguably controlling. We conclude, however, that it is
unnecessary to reach this issue. Instead, we hold that even if Lewis‟ failure to proffer
evidence as to the basis of his ineffective assistance claim did not constitute a lack of
diligence, his failure to timely file his second PCRA petition, as well as his failure to
properly appeal its dismissal, plainly did.
In our view, Lewis‟ PCRA counsel lacked diligence in developing the factual
basis of Lewis‟ Strickland claim because he untimely filed the petition and then, after its
dismissal, failed to properly file the required “Statement of Matters Complained of on
Appeal.” These procedural errors led to the dismissal of the appeal and the inability to
develop the record as to the alleged ineffectiveness of Lewis‟ trial counsel.
Because Lewis and his counsel failed to both timely file and properly appeal his
Strickland claim, and because that lack of diligence resulted in a failure to develop the
record as to that claim, we conclude that Lewis‟ request for a hearing under § 2254(e)(2)
must be denied. The Magistrate Judge and District Court were therefore correct to
dismiss his appeal.
III.
For the foregoing reasons, we will affirm the District Court‟s judgment.
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