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WILSON v. VAUGHN

February 10, 2004.

THEOPHALIS WILSON, Petitioner,
v.
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.

I. BACKGROUND

  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 Page 2 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). Page 3

  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 Page 4 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. . . .").

 III. DISCUSSION Page 5

  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 ...


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