The opinion of the court was delivered by: BERLE SCHILLER, District Judge
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.
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 ...