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Thomas v. United Mine Workers of America 1974 Ben. Plan and Trust

submitted: May 21, 1991.

FRANCIS ORDEAN REESE, APPELLANT,
v.
THOMAS A. FULCOMER



On Appeal from the United States District Court for the Middle District of Pennsylvania; (D.C. Civil Action No. 89-00850).

Stapleton, Scirica and Aldisert, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge

Francis Ordean Reese appeals the dismissal of his petition for writ of habeas corpus. We will affirm.

I.

On June 6, 1989, Reese filed a petition for habeas corpus challenging his 1983 convictions for rape, kidnapping, indecent assault, and terroristic threats, for which he was sentenced to an aggregate term of seven and one-half to fifteen years imprisonment. Reese's petition set forth five claims. Three claims concerned ineffective assistance of counsel because of: (1) failure to file a motion to suppress witness identification resulting from a suggestive showup, photographic display, and confrontation at the preliminary hearings and trial; (2) failure to subpoena several alibi witnesses for trial; and (3) failure to effectively cross-examine the prosecuting officer and lab specialist about scientific tests of materials taken from the victim and her clothing, as well as other tests.*fn1 Reese also alleged that the Commonwealth withheld a statement by the victim in violation of Pa. R. Crim. P. 305(B)(1)(a) (1989)*fn2 and Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In addition, Reese contended that the magistrate judge and the district court never ruled on his request for counsel.

A.

In support of his claim that the witness identification was suggestive, Reese outlined the events following the rape, contending that the "collective effects" of the pretrial identification procedures tainted the victim's in-court identification. Reese alleged that on April 30, 1982, the victim provided the state police with a description of the man who raped her in the late evening and early morning hours of April 29-30, 1982. On May 1, 1982, the victim's boyfriend, who thought that Reese matched the description of the victim's assailant, drove the victim by Reese's home where they observed him sitting at a picnic table in his yard. Reese also stated that on that same day the victim selected his photograph from a display of seven photographs, asserting that he was her assailant. He contended that his photograph was distinctive, however, because only it depicted a man with long sideburns and a card revealing his name and height.

Reese was jailed on May 2, 1982. While being transported by a car driven by a state trooper to a preliminary hearing set for May 12, 1982, Reese claimed that the trooper made a detour for the purpose of permitting the victim to see him. Reese stated that the victim was again permitted to view him three more times: (1) before the preliminary hearing was to be held on that same day; (2) immediately before the preliminary hearing was held when it was continued to May 21, 1982; and (3) outside the courtroom, immediately prior to her in-court identification on November 16, 1982. Reese contended that because these pretrial identification procedures tainted the victim's in-court identification, counsel should have filed a motion to suppress the tainted evidence and the victim should not have been allowed to make an in-court identification without providing an independent source for her testimony.

On March 30, 1983, following Reese's conviction, a hearing was held to review Reese's post-trial motions and to determine his claims of after-discovered evidence and ineffective assistance of counsel. In denying the post-trial motions, the court held that the photographic display was not conducted in a suggestive manner. The PCHA court later noted that at the March 30 hearing, the trooper who presented the photographic display to the victim testified that the photographs were similar and that Reese's trial counsel also testified that he found the photographs to be unobjectionable.

On direct appeal, the Pennsylvania Superior Court rejected Reese's "tainted identification" argument based on its review of the attack and the face-to-face contact between the victim and her assailant. The Superior Court recounted the victim's trial testimony that on April 29, 1982, at 9:30 p.m., she was driving a car looking for her boyfriend when a vehicle with flashing lights approached her from behind. Thinking it was her boyfriend, she pulled off the road. Reese, the vehicle's driver, opened her door, grabbed her, and sat in her car, claiming that she had struck his vehicle and owed him fifty dollars. Telling the victim he would take the money "in trade," he then drove her to a dead-end road, rep eatedly threatening to hit her if she tried to leave the vehicle. When they stopped, Reese made her leave the vehicle, remove her slacks, and engage in sexual intercourse, all the while threatening to strike her if she resisted. After the assault, Reese and the victim drove back to where Reese had left his vehicle and he released her.

The victim testified that she was able to see Reese clearly during the entire two-hour incident. Before she was taken to the hospital for treatment, she contacted her boyfriend and the police, whom she provided with a detailed description of Reese's features, clothing, type of vehicle, and the fact that the vehicle had a Pennsylvania license plate with an "H" in it.

The magistrate judge's report summarized the Superior Court's conclusions:

The superior court noted that at trial the victim recounted being face to face with her attacker during the sexual assault and that the whole episode lasted about two hours. The superior court noted that further, on redirect examination, victim stated she was absolutely sure that Reese was the guilty party. Based on these facts, the superior court held that the victim's in-court identification testimony was purged sufficiently of any alleged pre-trial taint so as to render it admissible to establish petitioner's involvement as a perpetrator. The court held that counsel cannot be held less than competent for failing to do a useless act, such as filing a suppression motion concerning identification.

Reese v. Fulcomer, No. 89-0850, slip op. at 9 (M.D. Pa. April 25, 1990).

In his petition for habeas corpus, Reese contended once again that counsel was deficient in failing to request an independent source for the victim's in-court identification. The magistrate judge agreed with the Superior Court's analysis, adding that an independent source had been established. "Certainly, the superior court's finding with regard to the length of the face to face confrontation would furnish such evidence to show that there was an independent basis." Id. at 10. In view of these circumstances, the magistrate judge determined he was "entitled to rely on the findings of the state court." Id.

B.

Reese also contended that his counsel was ineffective for failing to call alibi witnesses. He stated that on April 29, 1982, he was at a tavern with three friends from 9:30 to 11:15 p.m., at which time he left with another friend and proceeded to visit the homes of two other friends. He alleged that he stayed with friends at the second home until 5:00 a.m., then had breakfast, and was dropped off at his home at 9:30 a.m. He claimed that since the attack occurred between 10:00 and 12:00 p.m. on April 29, he could not have been culpable because he was accompanied by two or more of these persons during that time. Reese contended that although his trial counsel was aware of these witnesses, he did not call them to testify.

Before the Superior Court, Reese claimed that Donald Andrews, his key alibi witness, was never called, and that five other key witnesses were never fully investigated by his trial counsel. Although Reese's counsel gave reasons for not calling Donald Andrews at the hearing on March 30, 1983 on post-trial motions, Reese stated that no reasons were provided for failing to investigate the other witnesses.

The Superior Court disagreed. The court held that Reese had limited his alibi defense at the March 30 hearing to his counsel's failure to call only Donald Andrews. Therefore, he was precluded from claiming for the first time on appeal that his counsel was ineffective for not calling the other alibi witnesses. Furthermore, there was information that Donald Andrews was a potentially damaging witness for Reese. Andrews' wife had informed trial counsel that Reese was with her husband on the night of April 29, but that Reese had left their home in Andrews' automobile. Her description of the automobile and license number (which contained a letter) corroborated the victim's description of her assailant's vehicle. Thus, Andrews' testimony could have linked Reese with a car matching the victim's description. The Superior Court held that counsel's decision not to subpoena Donald Andrews (and informing Reese of this decision) was intended to benefit Reese.

In the habeas corpus petition, Reese contended that in transcripts of earlier hearings, trial counsel was not clear to whom he had spoken about Donald Andrews. The magistrate judge noted that there was no inconsistency because both transcripts indicated that trial counsel had spoken to Mrs. Andrews. Moreover, the magistrate judge emphasized that the common pleas court that ruled on the PCHA petitions stated that testimony by Andrews or any other alibi witness would have damaged Reese's case for two reasons: (1) Andrews' testimony could link Reese with a car matching the victim's description, and (2) trial counsel's informing the Commonwealth of any other proposed alibi witnesses "would have invariably led the Commonwealth to Andrews and the damaging statements." Reese v. Fulcomer, No. 89-0850, slip op. at 13 (M.D. Pa. April 25, 1990).

C.

In his habeas corpus petition, Reese also asserted that he was denied exculpatory Brady materials, an additional claim not raised in his petition in state court. In support, he attached pages from his brief before the Superior Court contending that on January 5, 1983, his trial counsel discovered that on April 29, 1982, the victim had informed police that her assailant had a large scar on one side of his face. Reese stated that he has no scar on his face and that this information could have convinced the jury that he was not the assailant.

The magistrate judge emphasized the Superior Court's statement that Reese's allegation about the scar was one of the reasons for convening the March 30, 1983 hearing on post-trial motions. At the hearing, the police chief denied telling anyone that the victim had told him that the assailant was scarred. He testified that when he had asked her if the assailant had any scars, she did not respond. The Superior Court concluded that no Brady information existed. The magistrate judge agreed.

The magistrate judge also concluded that the "observations by the state courts are uncontradicted and, therefore, the court can rely on the state court findings and record." Id. at 15. The magistrate judge recommended that Reese's habeas corpus petition be denied on the basis that the findings of the Pennsylvania Superior Court, Commonwealth v. Reese, Nos. 9, 208 (Pa. Super. Mar. 8, 1985), were presumed to be correct.

D.

The district court adopted the magistrate judge's findings. Reese v. Fulcomer, No. 89-0850 (M.D. Pa. Aug. 28, 1990). With regard to the suggestive nature of the victim's identification, the district court concluded that the magistrate judge had "thoroughly reviewed the state court proceedings." The district court then upheld the magistrate judge's determination that the length of the face-to-face confrontation between Reese and the victim provided sufficient evidence to demonstrate an independent basis for the identification. "Because such factual determination is fairly supported by the record," the district court concluded that it was "entitled to rely on those findings of the state court." Reese, No. 89-0850, slip op. at 3-4 (citing 28 U.S.C. § 2254(d)(8) (1988)). The magistrate judge also found that identification procedures did not "negate the victim's subsequent identifications." Id. at 4.

Reese also objected to the magistrate judge's statement that he "did not deny" he had a face-to-face confrontation with the victim for more than two hours. The district court noted, however, that Reese failed "to provide any evidence which contradicts this finding and merely denies that such a confrontation between him and the victim occurred." Id. at 4-5. After reviewing the transcript of the trial proceedings, the district court concluded that there was sufficient evidence to support such a factual determination and that it could rely on the state court's findings, referring once again to 28 U.S.C. § 2254(d)(8) (1988).

With regard to counsel's alleged failure to call key alibi witnesses during the trial, the district court concurred in the magistrate judge's conclusion that Reese provided only Donald Andrews' name to his trial attorney, and that because Andrews' testimony could have been damaging, counsel decided not to call Andrews after having discussed the matter with Reese.

In his objections to the magistrate judge's report, Reese once again stated that trial counsel failed to call witnesses or investigate the availability of other alibi witnesses. In support, he submitted the signed, but unsworn, statements of two witnesses contending that they were with Reese when the crime occurred. The district court determined that these statements were not sufficient to rebut the findings that Reese submitted the name of only one witness, whose testimony would not have helped his case. Based on a de novo review of Reese's ...


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