Mashore v. Beard , 173 F. App'x 149 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-23-2006
Mashore v. Beard
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1793
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1793
JASON MASHORE,
Appellant
v.
JEFFREY A. BEARD; RAYMOND SOBINA;
THE DISTRICT ATTORNEY OF THE COUNTY
OF PHILADELPHIA, LYNN ABRAHAM;
*THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA, Gerarld J. PAPPERT
*(Pursuant to FRAP 42(c))
______________________
Appeal from the United States District Court
for the Eastern District of PA
(D.C. No. 02-cv-06837)
Trial Judge: Mary A. McLaughlin
Argued on March 8, 2005
Before: SCIRICA, Chief Judge, ROTH and FUENTES Circuit Judges
(filed: March 23, 2006)
Ellen McBennett, Esquire (Argued)
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, A 19102
Counsel for Appellant
Robert M. Falin, Esquire (Argued)
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Counsel for Appellees
__________________
OPINION
ROTH, Circuit Judge:
Jason Mashore appeals the denial of a petition for habeas corpus under 28 U.S.C. §
2254, arising from his conviction for robbery. At trial, statements by both Mashore and
his co-defendant were admitted into evidence, but with redactions eliminating any
references to the other defendant in accordance with United States v. Bruton, 391 U.S.
123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). After deliberations had begun, the jury
submitted questions and, after conferring with counsel, the trial judge entered the jury
room and gave the agreed upon responses. While the judge was in the jury room, without
counsel, the following exchange took place:
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JUROR No. 9: A trial like this when there are two defendants,
is it possible for one to say the name of the other or visa versa
[sic]?
JUROR No. 6: On the statement is it possible they can
mention the other, you know what I mean, defendant’s name
and state if they confessed to a crime?
THE COURT: I cannot answer that.
JUROR NO. 2: Is that part of the law?
THE COURT: Yes.
The jury then asked a question regarding the definition of possession and the judge left
the room to confer with counsel. It is alleged by Mashore, but not transcribed, that the
judge informed counsel of the question regarding possession but made no mention of the
above exchange. The judge then re-entered the jury room and reiterated the definition of
possession to the jury. Mashore only discovered the trial judge’s ex parte
communications when reviewing transcripts in preparation for appeal.
On direct appeal in the Pennsylvania Superior Court, Mashore raised the above
facts and made several claims, with only one being relevant to our inquiry: whether “the
trial court err[ed] when the court answered questions posed by the jury regarding [the
petitioner’s] statement, and implicating the principles of United States v. Bruton, without
first informing the parties that the questions had been asked, in violation of [the
petitioner’s] state and federal constitutionally guaranteed rights to counsel, due process of
law, confrontation, and cross-examination, and to be present during the proceedings
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against him.” Commonwealth v. Mashore, No. 1599 Philadelphia 1998, slip op. at 2 (Pa.
Super. Ct. Nov. 6, 2000). The Superior Court denied the appeal, concluding that any
error that may have occurred was harmless. The Pennsylvania Supreme Court denied
allowance of appeal.
Mashore then filed a habeas petition in District Court, claiming that the ex parte
communications by the trial judge violated his right to counsel, right to be present, and
the protections of Bruton. The District Court assumed error and engaged in an analysis of
whether prejudice should be presumed under United States v. Cronic, 466 U.S. 648, 104
S. Ct. 2039, 80 L. Ed. 2d 657 (1984) and its progeny. The District Court concluded that
prejudice should not be presumed in this case, found that the error was harmless, and
denied the petition. The District Court issued a certificate of appealability and this appeal
ensued.
Mashore now appeals the denial of his habeas petition by the District Court. For
the reasons discussed below, despite the inappropriate communications between the judge
and the jury, we find that Mashore’s petition should be denied
I. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291 and § 2253(c)(1) over the District
Court’s dismissal of the petition for writ of habeas corpus under 28 U.S.C. § 2254.
We exercise plenary review over the District Court’s legal conclusions, including
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its application of the standard of review under AEDPA. Banks v. Horn, 271 F.3d 527,
531 (3d Cir. 2001). Relief under 28 U.S.C. § 2254 is precluded on any claim that was
adjudicated on the merits in state court unless the adjudication resulted in a decision that
was contrary to, or an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, or 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)(1)-(2), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), P.L. 104-132 (Apr. 26, 1996).
II. Certificate of Appealability
The scope of the certificate of appealability is not defined in the District Court’s
Order, but the Opinion states “I cannot say that the petitioner’s interpretation of Cronic is
not debatable.” Mashore v. Beard, 2004 WL 350732, *5 (E.D. Pa. 2004). The
government argues that this statement indicates that the only issue presented on appeal is
whether harmless error analysis should apply to Mashore’s right to counsel claim and that
we do not have jurisdiction to address the issue of what standard of review applies to the
question of whether harmless error analysis is appropriate. It is illogical that we would
not have jurisdiction to determine the appropriate standard of review for a claim in a
certificate of appealability, but, as we do not reach that stage of the analysis, this issue
does not affect our resolution of this case.
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We may not consider issues on appeal that are not within the scope of the
certificate of appealability. 28 U.S.C. § 2253(c)(3); 3d Cir. LAR 22.1(b); Miller v.
Dragovich, 311 F.3d 574, 577 (3d Cir. 2002). However, our case law supports the
exercise of discretion to expand the scope of a certificate of appealability. See Federal
Rule of Appellate Procedure 22(b)(2), Mickens-Thomas v. Vaughn, 355 F.3d 294, 303
(3d Cir. 2004) (finding this court can treat a notice of appeal as a request for a certificate
of appealability and grant it on its own), Villot v. Varner, 373 F.3d 327, 337 n. 13 (3d
Cir. 2004) (exercising discretion to sua sponte expand the scope of the certificate of
appealability granted by motions panel, citing 3d Cir. LAR 22.1(b)).
From the reference to Cronic, we read the certificate of appealability as
encompassing Mashore’s claim regarding deprivation of his right to counsel and will
address the legal issues surrounding that claim. We will not, however, sua sponte expand
the scope of the certificate of appealability to include Mashore’s other claims, based on
his right to be present and the protections of Bruton.
III. Exhaustion
The government argues that Mashore’s right to counsel claim is not exhausted
because he did not raise it in the state court.1 The government further argues that, even if
1
Although the parties use the terms “procedural default” and “exhaustion”
interchangeably in their briefs, the issue here, as reflected by the cases relied upon by
both parties and by the parties’ contentions at oral argument, is whether Mashore’s claims
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Mashore’s Sixth Amendment right to counsel claim was fairly presented to the state
court, his legal theory that harmless error analysis should not apply was not presented and
is defaulted here.
Mashore argues that the government has waived this argument because it did not
file objections to the Magistrate Judge’s Report and Recommendations. Regardless of
whether this constitutes waiver, despite the Government raising exhaustion in its briefs to
the District Court, we are not barred from considering the issue. See Granberry v. Greer,
481 U.S. 129, 107 S. Ct. 1671, 95 L. Ed. 2d 119 (1987) (holding that when the state has
not raised exhaustion in the district court, the court of appeals “should determine whether
the interests of comity and federalism will be better served by addressing the merits
forthwith or by requiring a series of additional state and district court proceedings before
reviewing the merits of petitioner’s claim.”) We find that these purposes would be served
by addressing whether Mashore’s right to counsel claim is exhausted.
Before a federal court may grant a § 2254 habeas petition, the state prisoner must
exhaust his available state court remedies. 28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). “The exhaustion
doctrine is designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts.” Id. at 845,
are exhausted. See 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice
and Procedure § 23.1, 26.1 (4th ed. 2001).
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119 S. Ct. 1728. The prisoner typically exhausts his federal claims by fairly presenting
each claim at each stage of the state's established appellate review process. Villot v.
Varner 373 F.3d 327, 337 (3d Cir. 2004). A state prisoner must fairly present his claim
in state court in order to “[alert] that court to the federal nature of the claim.” Baldwin v.
Reese, 124 S. Ct. 1347, 1349 (2004). The claim must be presented to the state courts in
such “a manner that puts [the state court] on notice that a federal claim is being asserted.”
Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). Specifically, the same method of
legal analysis must be available to the state court as will be employed in the federal court.
Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982).
In this case, although Mashore used the words “federal constitutionally guaranteed
right to counsel” in his brief to the Superior Court, he cited no state or federal cases
regarding the right to counsel and made no argument regarding the claim. Rather, he
discussed Bruton and Pennsylvania cases regarding ex parte jury communications, based
on the right to be present. Mashore never cited Cronic and never used language
suggesting he was claiming deprivation of counsel at a critical stage of the proceedings.
The Superior Court’s opinion reflects Mashore’s brief. Although the opinion
reiterates, verbatim, Mashore’s claims, it never analyzes a right to counsel claim under
either state or federal law. Instead, the Superior Court engages in an analysis of the
Pennsylvania ex parte communications cases, based on the right to be present, and
Bruton.
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It is clear from the record that Mashore did not properly raise his right to counsel
claim in state court. The Superior Court had no notice that a claim under Cronic was
being asserted and did not have the same means of analysis under the right to counsel
cases that are now presented in federal court. Thus, Mashore’s right to counsel claim is
not exhausted and is not a proper grounds for relief in federal habeas proceeding.
IV. Review of Superior Court’s Decision
Because we find that Mashore’s right to counsel claim is unexhausted, we need not
reach the question of the appropriate standard of review for the Superior Court’s decision
or of whether the presumed prejudice standard of Cronic should be applied in this case.
As the certificate of appealability addressed only Cronic, which clearly applies only to the
right to counsel claim, we need not review the conclusions of the District Court and the
Superior Court that Mashore’s claims based on his right to be present and rights under
Bruton resulted in harmless error.
V. Conclusion
For the reasons discussed above, Mashore’s right to counsel claim was not
properly presented to the state courts and, thus, is not exhausted for the purposes of this
Court’s consideration. Further, because the certificate of appealability encompassed only
Mashore’s right to counsel claim, we will not address his additional claims presented to
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the District Court. Therefore, the District Court’s denial of Mashore’s petition will be
affirmed.
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