ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 91-00963)
Before: SLOVITER, Chief Judge, NYGAARD and McKEE, Circuit Judges
Respondents appeal from the order of the district court granting a writ of habeas corpus to the petitioner, Commer Glass, who is currently serving a life sentence for first-degree murder. The district court held that Glass' trial counsel was ineffective because he failed to investigate petitioner's military experiences and subsequent history of bizarre behavior, which the court concluded would have led counsel to put on a diminished capacity defense. We do not reach that issue. Instead, because petitioner's current habeas claim was procedurally defaulted in state court and he does not fall within the "actual innocence" exception recently set forth in Schlup v. Delo, ___ U.S. ____, 115 S. Ct. 851 (1995), we will reverse.
The facts of this case can be found in the published opinion of the district court, Glass v. Vaughn, 860 F. Supp. 201 (E.D. Pa. 1994), and need only be summarized. Petitioner Glass was arrested for the murder of Billie Ann Morris, bound over for trial, and retained Attorney Barry Denker to defend him. Glass told both the police and his attorney that he was elsewhere when the crime was committed. Attorney Denker's investigation was therefore limited to interviewing petitioner and driving him along the route he claimed to have taken on the night of the murder. As we shall see, however, there was much more to the story.
Petitioner served in the Armed Forces in Vietnam, experiencing heavy combat. He saw many people get killed, including his friends. On at least two occasions, petitioner killed Vietnamese civilians, including a Vietnamese woman who allegedly made a threatening gesture to a fellow soldier after a sexual encounter. Petitioner, like many other Vietnam veterans, exhibited a variety of behaviors consistent with post-traumatic stress disorder ("PTSD"). He had acted violently towards Morris even before the murder, and remarked the day before the killing that "women do what I say do, if not I kill them." Nonetheless, he never told his attorney about his military combat experiences nor about the psychological problems that followed. Indeed, as the district court recognized, "no person volunteered any information to Denker and Denker never sought any information that would have alerted him to the possibility of a psychiatric defense." Glass, 860 F. Supp. at 204. Glass did suggest that Attorney Denker interview Phyllis Brown, whom Glass later married, to find out what type of person he was, but Denker never interviewed her. The district court found that Mrs. Glass was aware of petitioner's psychological problems and would have told Denker about them had she been asked.
Attorney Denker offered no witnesses at trial and did not argue that Glass' diminished capacity from PTSD negated the mens rea element of the crime. Denker instead argued, consistent with Glass' statement to the police, that he had an alibi. The jury found Glass guilty of first-degree murder and the court sentenced him to life imprisonment. While in prison, he was formally diagnosed as suffering from PTSD.
Glass filed various direct appeals and habeas proceedings, including this petition alleging that Attorney Denker was ineffective because he failed to investigate and pursue a diminished capacity defense. Glass presented and lost on this allegation of error before the state trial court in his second post-conviction relief petition. Unfortunately, he did not appeal. Thus, the district court held that petitioner's federal habeas claim was both exhausted and procedurally defaulted. Without the "actual innocence" exception, the court noted that his habeas claim would accordingly be barred. 860 F. Supp. at 215. We agree.
Glass argues on appeal that, because he raised the issue of attorney effectiveness in his first post-conviction relief petition to the state court (which he did appeal), he has properly exhausted the claim currently before this court. We disagree. In his earlier Post Conviction Hearing Act proceeding, Glass argued that his postconviction counsel was ineffective for not amending the petition to include the after-discovered evidence of PTSD and diminished capacity, even though he had made counsel aware of the prison psychologist's diagnosis. Here, Glass asserts that his trial counsel was ineffective because he failed to investigate a defense based on an undisclosed and undiagnosed psychiatric condition. We cannot say that Glass' earlier petition fairly presented this issue to the state appellate courts.
The district court, however, held that Glass made out a claim of "actual innocence" sufficient to overcome petitioner's procedural default. It opined:
If the evidence [of PTSD] had been presented at trial, there is certainly a fair probability that a trier of fact would have entertained a reasonable doubt as to his guilt of murder in the first degree. Thus, the court concludes that petitioner has suffered a fundamental miscarriage of justice in that a constitutional violation, ineffective assistance of counsel, has probably resulted in the conviction of petitioner of murder in ...