United States District Court, E.D. Pennsylvania
February 10, 2004.
THEOPHALIS WILSON, Petitioner,
DONALD T. VAUGHN, et al., Respondents
The opinion of the court was delivered by: BERLE SCHILLER, District Judge
MEMORANDUM AND ORDER
This case requires the Court to determine whether a criminal
appellate attorney's failure to raise a crucial change in the law
governing his client's appeal falls within the United State Supreme
Court's standard for ineffective assistance of counsel. Presently before
the Court is the Report and Recommendation ("Report") of Magistrate Judge
Peter B. Scuderi recommending that the Court deny Theophalis Wilson's
petition for a writ of habeas corpus and issue a certificate of
appealability. Petitioner and Respondents have each filed objections to
the Report requesting de novo determinations by the Court pursuant to
28 U.S.C. § 636(b). For the reasons set out below, the Court declines to
adopt the Report; instead, the Court grants the petition, vacates
Petitioner's convictions, and orders a new trial.
Petitioner was indicted and tried in the Pennsylvania Court of Common
Pleas on charges of first-degree murder, robbery, criminal conspiracy,
violating the Pennsylvania Corrupt Organizations Act ("PCOA"), and
possessing an instrument of crime. At Petitioner's trial, the
Commonwealth argued that Petitioner and a co-defendant, both members of a
criminal gang, killed three people
whom they had lured to a meeting on the premise of a phony gun
sale. Commonwealth v. Wilson, No. 02646 Philadelphia 1995, slip
op. at 1 (Pa. Super. Ct. Dec. 31, 1996) (upholding conviction). In
addition to evidence supporting the murder and conspiracy allegations,
the Commonwealth introduced, over Petitioner's objections, a substantial
amount of evidence regarding acts that Petitioner had allegedly performed
approximately eight months after the murders in question, including
illegal gun dealing.*fn1 See id. at 2. The trial court admitted
this evidence as relevant to Petitioner's alleged violation of the PCOA,
an anti-racketeering statute that requires the Commonwealth to prove a
"pattern" of criminal activity "in the conduct of an enterprise." 18 PA.
CONS.STAT.ANN. § 911(b)(3)(1998). On August 6, 1993, Petitioner was
convicted of three counts each of first-degree murder, criminal
conspiracy, and robbery, as well as one count of violating the PCOA and
one count of possessing an instrument of crime. Wilson, No.
02646 Philadelphia 1995, slip op. at 2. Petitioner was sentenced to life
in prison, and one of his co-defendants was sentenced to death, although
the latter's conviction was eventually vacated on a state habeas corpus
petition. See Commonwealth v. Williams, Nos. 1770-96, 1825-46,
slip op. (Pa. Ct. Com. Pl. May 29, 2003) (entering acquittal on PCOA
charge and ordering new trial on remaining counts).
Petitioner, represented by Jack McMahon, Esquire, appealed his
conviction to the Superior Court of Pennsylvania. While this appeal was
pending, the Supreme Court of Pennsylvania issued an opinion holding that
in order to obtain a conviction under the PCOA, the Commonwealth was
required to prove that a defendant was a member of a "legitimate"
enterprise, as opposed to a gang or other wholly illegitimate
organization. Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996).
Despite this ruling, Mr. McMahon failed to raise Besch before
the Superior Court.*fn2 On December 31, 1996, the Superior Court
affirmed Petitioner's convictions in an opinion that makes no mention of
the new precedent. See Wilson, No. 02646 Philadelphia 1995, slip
op. Thereafter, the Pennsylvania Supreme Court declined to hear
Petitioner's appeal. Commonwealth v. Wilson,
698 A.2d 67 (Pa. 1997).
Petitioner then filed a state habeas corpus petition pursuant to the
Pennsylvania Post-Conviction Relief Act ("PCRA"). Petitioner alleged a
variety of errors in his trial and direct appeal, including claims that
the holding in Besch warranted reversal of his PCOA conviction
and that appellate counsel McMahon was constitutionally ineffective in
failing to raise Besch before the Superior Court. The PCRA
petition was denied by the Court of Common Pleas, in part because the
court found the substantive Besch claim defaulted due to
Petitioner's failure to raise it on direct appeal, and in part because
the court held that vacating the PCOA conviction would have no impact on
Petitioner's life sentence for murder. See Commonwealth v.
Wilson, No. 1779, slip op. (Pa. Ct. Com. Pl. Oct. 17, 2000).
Petitioner appealed this denial pro se to the Pennsylvania
Superior Court, which affirmed. Commonwealth v. Wilson, No. 2360
EDA 2000, slip op. (Pa. Super. Ct. Mar. 18, 2002). Despite the fact that
Besch was not decided until several months after Petitioner's
post-trial motions, the Superior Court held, inter alia, that
his substantive argument regarding Besch was waived because it
had not been raised during post-trial motions. Id. at 6. The
Superior Court also held that Petitioner's counsel was not ineffective in
failing to raise this argument in post-trial motions because
counsel could not have been expected to "predict a change in the
law," id. at 7, but the court did not address whether appellate
counsel was ineffective in failing to raise Besch before the
Superior Court on direct appeal. Rather than appealing these rulings to
the Pennsylvania Supreme Court, Petitioner filed the instant habeas
corpus petition pursuant to 28 U.S.C. § 2254.
The federal petition, as amended, alleges fourteen bases for relief:
five trial court errors; eight instances of ineffective assistance of
counsel; and one charge of prosecutorial misconduct. On October 27, 2003,
Magistrate Judge Scuderi issued the Report recommending that the Court
deny the petition in its entirety and issue a certificate of
appealability. Wilson v. Vaughn, Civ. No. 02-1605, 2003 WL
22462251 (E.D. Pa. Oct. 27, 2003). Both Petitioner and Respondents filed
timely objections to the Report. Although these objections address nearly
the entire Report, the Court finds that only one of the fourteen
underlying claims-ineffective assistance of counsel in failing to raise
the Besch issue on direct appeal-need be addressed in order to
reach a dispositive result. This claim is discussed below.
II. STANDARD OF REVIEW
In reviewing a Magistrate Judge's report regarding a habeas corpus
petition, the district court "shall make a de novo determination of those
portions of the [Magistrate Judge's] report . . . to which objection is
made. A [district court] may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge."
28 U.S.C. § 636(b); see also Young v. Vaughn, 83 F.3d 72, 76
n.4 (3d Cir. 1996) ("[T]he district court must review a Report and
Recommendation de novo if the [habeas] petitioner files objections to
it. . . .").
In order to address the claim that Petitioner's counsel was
ineffective in failing to raise the Besch issue on direct
appeal, the Court must first determine whether Petitioner properly
exhausted this claim in state court. If the claim is properly brought,
the Court must then determine what standard applies to its consideration.
Finally, the Court must apply that standard to the merits of the claim.
A. Exhaustion and Default*fn3
The habeas corpus statute for state prisoners, 28 U.S.C. § 2254,
provides that a claim for relief shall not be granted if the petitioner
has failed to "exhaust the remedies available in the courts of the
State." 28 U.S.C. § 2254(b)(1)(A). Pursuant to this Section, a
federal court generally may not consider a petitioner's claim unless that
claim was raised before all of the appropriate state courts. See,
e.g., Whitney v. Horn, 280 F.3d 240, 252-53 (3d Cir. 2002). An
exception to this rule, however, exists where the petitioner can show
"that failure to consider the claims will result in a fundamental
miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750
(1991), such as the conviction of one who is "actually innocent."
Sawyer v. Whitley, 505 U.S. 333, 335 (1992).*fn4 Although the
more common situation is one in which the petitioner provides new
evidence that establishes his factual innocence, the Third Circuit has
recognized that in situations such as the instant case, where the
elements of the crime are changed after conviction, the petitioner may
on the record as it now stands and thus require the prosecution to
present additional admissible evidence of his factual guilt." United
States v. Garth, 188 F.3d 99, 110 n.13 (3d Cir. 1999) (citing
Bousley v. United States, 523 U.S. 614, 624 (1998)) (internal
quotations omitted); see also Cristin v. Brennan, 281 F.3d 404,
421 (3d Cir. 2002) ("In [Garth], it was not a question of what
new evidence of innocence the petitioner could present, but whether the
evidence currently in the record was sufficient to convict.").
Petitioner's claim regarding the ineffectiveness of his appellate
counsel in failing to raise Besch on direct appeal was argued on
collateral review before the state courts in a PCRA petition. The PCRA
court rejected this claim, and the Superior Court affirmed. Petitioner
did not, however, appeal this affirmance to the Pennsylvania Supreme
Court. Thus, the Court must determine whether this failure to seek state
Supreme Court review renders the claim defaulted, and if so, whether the
default is excused under the miscarriage of justice exception.
Normally, a petitioner's failure to pursue his state habeas petition
through each of the state's courts would render his claims defaulted.
See Whitney, 280 F.3d at 252-53. However, Petitioner has met his
burden of showing that the error resulted in the conviction of one who
was "actually innocent" of violating the PCOA, Garth, 188 F.3d
at 110 n.13 (discussing actual innocence claim where elements of crime
were altered by judicial ruling after conviction), for it is undisputed
that Petitioner was not a member of a legitimate organization, as
required by Besch. See Resp. to Pet. for Writ of Habeas Corpus
at 35; Wilson, No. 2360 EDA 2000, slip op. at 6 ("[I]f
Besch were applied to Wilson's case, the evidence would be
insufficient to sustain Wilson's conviction of corrupt organizations.");
see also Commonwealth v. Shaffer, 734 A.2d 840, 844 (Pa. 1999)
(holding that "legitimate organization" requirement applies to PCOA
convictions that were on direct appeal
when Besch was decided).*fn5 Accordingly, the Court finds
that even if the instant claim is defaulted, such default is excused
under the miscarriage of justice exception to § 2254(b)(1)(A), and
the merits of Petitioner's claim are properly before this Court.
In addition, the facts of this case present an alternative
justification for excusing Petitioner's default under the miscarriage of
justice exception. Approximately two years before Petitioner's PCRA
appeal was rejected by the Superior Court, the Pennsylvania Supreme Court
issued Judicial Administration Order 218. In re: Exhaustion of State
Remedies in Criminal and Post-Conviction Relief Cases, No. 218
Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam)
[hereinafter "Order 218 "].*fn6 Order 218 provides that
in all appeals from criminal convictions or
post-conviction relief matters, a litigant shall
not be required to petition for rehearing or
allowance of appeal following an adverse decision
by the Superior Court in order to be deemed to
have exhausted all available state remedies
respecting a claim of error. When a claim has been
presented to the Superior Court, or to the Supreme
Court of Pennsylvania, and relief has been denied
in a final order, the litigant shall be deemed to
have exhausted all available state remedies for
purposes of federal habeas corpus relief.
Id. As of March 18, 2002, the date the Superior Court upheld
the dismissal of Petitioner's PCRA petition, two of the three federal
district courts sitting in Pennsylvania-including the Eastern
District-had ruled that a habeas claim not need not be appealed to the
state Supreme Court to be preserved because Order 218 "makes
discretionary review [by the Pennsylvania Supreme Court]
unavailable for the purpose of the exhaustion requirement in §
2254." Mattis v. Vaughn, 128 F. Supp.2d 249, 261 (E.D.
Pa. 2001); see also Lambert v. Blackwell, 175 F. Supp.2d 776, 785
(E.D. Pa. 2001) ("For federal habeas purposes, Lambert did not have to
petition for allocator to exhaust her state remedies."); Blasi v.
Attorney Gen. of Commw. of Pa., 120 F. Supp.2d 451, 469 (M.D.
Pa. 2000) ("[W]e conclude that the order of the Supreme Court of Pennsylvania
removes a petition for allocator from the one complete round of
Pennsylvania's established appellate review process."). In addition, the
Third Circuit had expressly declined to address the issue. See Wenger
v. Frank, 266 F.3d 218
, 225 (3d Cir. 2001) ("Although it will
undoubtedly be necessary for our court to address the broader question
whether the filing of a petition for discretionary review with the
Pennsylvania Supreme Court is now `part of the ordinary appellate review
procedure in the state,' we find it unnecessary to reach that issue
here."). Thus, every relevant legal source on record at the time would
have led Petitioner to believe that the applicable law permitted him to
file his federal claim without appealing his PCRA petition to the state
Under these circumstances, it would constitute the
most manifest miscarriage of justice to refuse to consider Petitioner's
claims on the merits, for to do so would penalize him for his completely
reasonable, rational, and informed reliance upon the law of both the
state in which he litigated his collateral appeal and the federal
district in which he brought his habeas corpus petition. Cf. Kratz v.
Kratz, 477 F. Supp. 463, 481 (E.D. Pa. 1979) (noting "intolerable
injustice" of holding defendant who acted in reliance upon judicial
opinion criminally liable) (citing Marks v. United States,
430 U.S. 188 (1977)).
B. Standard for Consideration on the Merits
Pursuant to § 2254(d), as amended by the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), a petition for habeas
corpus may be granted if the state courts' determination of the
petitioner's claim "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1).*fn8 This standard, however, "does not
apply unless it is clear from the face of the state court decision that
the merits of the petitioner's constitutional claims were examined in
light of federal law as established by the Supreme Court of the United
States." Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002). If AEDPA
does not apply, the federal court "owes no deference to a state court's
resolution of mixed questions of constitutional law and fact." Id.
(citing Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring)).
In the instant case, the Magistrate Judge found that AEDPA deference
was not warranted because the Pennsylvania standard for ineffective
assistance of counsel as applied by the state courts deviates from the
federal standard. Report, supra, at 28 (citing
Everett). Respondents strenuously object that the Magistrate Judge
has misinterpreted Everett and subsequent Supreme Court
decisions. See Early v. Packer, 537 U.S. 3 (2002);
Woodfordv. Visciotti, 537 U.S. 19 (2002); Bell v. Cone,
535 U.S. 685 (2002). This Court, however, need not resolve this dispute,
for even under AEDPA's stringent standard, the state court decisions
regarding Petitioner's PCRA petition constitute "an unreasonable
application of clearly established federal law."
28 U.S.C. § 2254(d)(1).
Thus, for the purposes of the instant Petition, the Court will apply
the AEDPA standard.
C. Petitioner's Claim of Ineffective Assistance of Counsel
The federal standard for ineffective assistance of counsel claims
derives from Strickland v. Washington, 466 U.S. 668 (1984). In
Strickland, the Supreme Court held that to prevail on such a
claim, a petitioner must show that: (1) "counsel's representation fell
below an objective standard of reasonableness," id. at 688; and
(2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 694. This standard applies to both trial and
appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000)
("[T]he proper standard for evaluating [a] claim that appellate counsel
was ineffective . . . is that enunciated in Strickland. . . .").
The ineffectiveness prong requires defendant to show that "counsel's
actions were not supported by a reasonable strategy," Massaro v.
United States, 123 S.Ct. 1690, 1694 (2003), in light of "all the
circumstances." United States v. Day, 969 F.2d 39, 42 (3d Cir.
1992). Regarding the prejudice requirement, the Supreme Court held that
"[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. This
standard requires "less than a preponderance of the evidence." United
States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
The substance of Petitioner's claim is that his appellate counsel was
constitutionally ineffective in failing to raise the Besch
decision on direct appeal. The Superior Court did not address this claim
directly but implied that to raise Besch on direct appeal would
have been fruitless because the issue had been waived by Petitioner's
failure to include it in post-trial motions. Wilson, No. 2360
EDA 2000, slip op. at 7. Thus, the rationale behind the Superior Court's
rejection of this
claim appears to be that counsel was not ineffective in failing to
raise Besch on appeal because he was procedurally prohibited
from doing so by virtue of having "failed" to preserve the issue after
trial. However, regarding Petitioner's corollary claim that counsel was
ineffective in failing to raise Besch in post-trial motions, the
Superior Court upheld the rejection of this claim in Petitioner's PCRA
petition on the grounds that "counsel cannot be deemed ineffective for
failing to predict a change in the law." Id. at 7.
These holdings are internally inconsistent, for as the Superior Court
itself noted in rejecting the claim of counsel's post-trial
ineffectiveness, see id., Besch could not possibly have
been raised in post-trial motions because it did not yet exist. In
contrast, it is indisputable that Petitioner could have raised
Besch on direct appeal. See Shaffer, 734 A.2d at 844
(reversing PCOA conviction of defendant whose direct appeal was pending
when Besch was decided).*fn9 Thus, the Superior Court opinion
does not provide a plausible rationale for Mr. McMahon's omission of the
Besch issue on appeal. Accordingly, this Court finds that the
Superior Court's Strickland analysis constitutes "an
unreasonable application of clearly established federal law" because
despite Petitioner's showing that he was entitled to have his PCOA
conviction vacated, the court failed to identify any reasonable strategy
under which counsel might have chosen not to do so.
Having determined that the Superior Court applied Strickland
unreasonably, this Court must still determine whether counsel's failure
to raise Besch on appeal constitutes ineffectiveness under the
first prong of Strickland. There are only two possible causes
for counsel's inaction: (1)
Appellate counsel was not aware of Besch; or (2) he was
aware of Besch and chose not to raise it. Regarding the first
possibility, the Court finds that if McMahon did not conduct sufficient
research regarding the PCOA to determine that Petitioner had an
indisputable legal defense to the charge thereunder, McMahon did not
function at the minimum standards required by the Sixth Amendment.
See Strickland, 466 U.S. at 688 (noting that Sixth Amendment
relies on legal profession to ensure that counsel "fulfill the role in
the adversary process that the Amendment envisions"); see also Pagan
v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991) ("No tactical
reason . . . other than oversight or incompetence . . . can be assigned
for the lawyer's failure to raise the only substantial claims that Fagan
had."); Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)
("Had appellate counsel failed to raise a significant and obvious issue,
the failure could be viewed as deficient performance."); Commonwealth
v. Balenger, 704 A.2d 1385, 1390-91 (Pa. Super. 1997) (affirming
grant of state habeas petition where appellate counsel failed to raise
new Pennsylvania Supreme Court precedent on appeal); cf. Wiggins v.
Smith, 123 S.Ct. 2527, 2538 (2003) (reversing denial of ineffective
assistance of counsel claim where counsel's failure to conduct factual
investigation of client's case was "objectively unreasonable"). In other
words, if appellate counsel was unaware of a clear and indisputable legal
defense to one of the charges Petitioner faced, counsel did not perform
the service required of him by the adversarial process. See
Strickland, 466 U.S. at 688.
Nonetheless, counsel cannot be deemed ineffective if his actions, while
ultimately unsuccessful, were part of a "sound trial strategy."
Id. at 689 (quotation omitted). Thus, the Court must consider
the possibility that appellate counsel was aware of Besch, yet
made a strategic decision not to raise it. The only possible rationale of
which the Court can conceive would be that raising Besch would
be fruitless because vacating the PCOA conviction would not affect his
life sentence for murder. This hypothetical strategy, however,
would not only have reflected an incorrect view of the law, see
Wilson, No. 02646 Philadelphia 1995, slip op. at 3-5 (noting
prejudical impact of PCOA-related evidence on non-PCOA charges and
upholding admission of evidence in part on PCOA grounds), but it would
also have been at odds with the strategy actually pursued by counsel, who
raised many other vigorous challenges to the PCOA-related evidence at
trial and on appeal. See id. In light of these arguments
actually made by counsel, it seems clear that McMahon realized the danger
that this evidence posed to his client, and thus there is no rational
basis upon which he might have chosen to omit Besch, which was a
far stronger argument leading to his desired result, namely exclusion of
the PCOA-related evidence. See United States v. Cook,
45 F.3d 388, 395 (10th Cir. 1995) ("[A]n appellate advocate may deliver
deficient performance . . . by omitting a `dead-bang winner,' even
though counsel may have presented strong but unsuccessful claims on
appeal."); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)
("[A] petitioner may establish constitutionally inadequate performance
if he shows that counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker.");
Fagan, 942 F.2d at 1157 (upholding grant of habeas petition where appellate
counsel failed to argue "winning claim" that evidence was insufficient
to support conviction); Gray, 800 F.2d at 646 ("Generally, only when
ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome."); see
also Smith v. Robbins, 528 U.S. 259, 288 (2000) (noting that
although appellate counsel need not raise all possible claims, counsel is
expected to "maximize the likelihood of success on appeal"). Accordingly,
the decision to omit Besch if this was indeed a conscious
decision-was not made as part of a reasonable legal strategy pursued by
appellate counsel, and the ineffectiveness prong of Strickland
is therefore satisfied.
As noted previously, in order to obtain relief Petitioner must show
that the ineffectiveness of his counsel "undermine [d] confidence in the
outcome" of his trial. Strickland, 466 U.S. at 694. In this
case, the alleged prejudice is that if counsel had raised Besch
on appeal, the Superior Court would have vacated Petitioner's PCOA
conviction. See Wilson, No. 2360 EDA 2000, slip op. at 6 ("[I]f
Besch were applied to Wilson's case, the evidence would be
insufficient to sustain Wilson's conviction of corrupt organizations.").
This, Petitioner argues, would have led the Superior Court to determine
that in light of the non-murder-related evidence introduced at trial to
support the PCOA charge, Petitioner's trial was so infused with
prejudicial and irrelevant evidence that a new trial was warranted.
Petitioner's argument in this regard is more than mere speculation, for
his co-defendant Christopher Williams has already been granted a new
trial on these very grounds. Williams, Nos. 1770-96, 1825-46,
slip op. at 3 ("[W]e find that there was an opportunity to raise . . .
Besch during the appeal of this case, and that had appellate
counsel done so, Supreme Court precedent would have required that the
[PCOA] conviction be reversed."). In its decision vacating Williams'
conviction and sentence, the Court of Common Pleas held that "[c]learly,
there was a mass of highly prejudicial evidence presented to the jury,
which it would never have heard, had there been no Corrupt Organizations
charge." Id. The court went on to hold that a death sentence
should not be imposed based upon such evidence. Id. at 3-4.
Although the instant petitioner does not face a death sentence, the
Court finds the logic of the Court of Common Pleas equally applicable
here.*fn10 Petitioner was convicted of three murders
after the jury heard a substantial amount of evidence relating to
gun sales that occurred long after the murders. It is difficult to
believe that this evidence did not influence the jury regarding the
murder charges, especially given that both the charges and the
prejudicial evidence involved allegations of Petitioner engaging in
illegal gun sales. Thus, it "undermines confidence in the outcome" of the
trial to know that the PCOA charge upon which the admission of this
evidence was based would likely have been vacated on appeal if
Petitioner's counsel had not been ineffective, and that there is a
reasonable probability that the murder convictions would also have been
vacated in light of the highly prejudicial evidence unrelated to those
charges. See Gray, 800 F.2d at 646 ("If an issue which was not
raised may have resulted in a reversal of the conviction, or an order for
a new trial, the failure was prejudicial."); see also Balenger,
704 A.2d at 1390-91 (affirming grant of state habeas petition based on
"reasonable probability that [petitioner] would have been awarded a new
trial on direct appeal" had appellate counsel raised intervening change
in governing precedent). Accordingly, the Court holds that Petitioner was
prejudiced by his counsel's ineffectiveness, in that "there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland,
466 U.S. at 694.
For the foregoing reasons, the Court finds that the Superior Court
decision upholding the dismissal of Petitioner's state habeas corpus
petition was an unreasonable application of clearly established federal
law, and that Petitioner's counsel on direct appeal was constitutionally
ineffective, resulting in prejudice to Petitioner. Accordingly, the Court
declines to adopt the Report and Recommendations of the Magistrate Judge.
Instead, the Court grants Theophalis Wilson's petition for a writ of
habeas corpus and vacates his August 6, 1993 convictions for first-degree
murder, robbery, criminal conspiracy, violation of the PCOA, and
possession of an instrument of crime. An appropriate Order follows.
AND NOW, this 10th day of February, 2004, upon consideration
of Theophalis Wilson's Petition for a Writ of Habeas Corpus, the response
thereto, the Report and Recommendation of the Magistrate Judge, and the
objections thereto, it is hereby ORDERED that:
1. The Report and Recommendation of the Magistrate Judge (Document No.
32) is REJECTED.
2. Theophalis Wilson's Petition for a writ of habeas corpus is
3. Petitioner's convictions of August 6, 1993 for first-degree murder,
robbery, criminal conspiracy, violation of the Pennsylvania Corrupt
Organizations Act, and possession of an instrument of crime are
VACATED, and a new trial is ordered.
4. The Clerk of Court is directed to close this case.