MEMORANDUM RE: PETITION FOR HABEAS CORPUS
Petitioner Ernest Morris filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, raising four grounds for relief (Doc. No. 1). However, since Petitioner is in state custody prior to receiving a state court conviction, this Court will construe Petitioner's request pursuant to 28 U.S.C. § 2241.*fn1 This Court referred the matter to Chief Magistrate Judge Rueter for a Report & Recommendation ("R & R") (Doc. No. 3), and the Government responded to Petitioner's petition (Doc. No. 5).
On March 17, 2009, Judge Rueter recommended that the petition be dismissed without prejudice for failure to exhaust state court remedies (Doc. No. 8). Petitioner did not object to the R & R. Upon independent and thorough review, this Court will deny Petitioner's Writ of Habeas Corpus, but writes separately from the R & R and bases dismissal on different grounds relating to Petitioner's first claim, violation of double jeopardy.
II. Background and Procedural History
On March 24, 2005, Petitioner and two co-Defendants were charged with the January 30-31, 2005 murders of two individuals and an unborn child in the Court of Common Pleas for Montgomery County (C.P No. 46-0005182-2005). (Answer & Mem. Law Opp'n Pet. 1.) On August 12, 2005, the Commonwealth filed notice of intent to seek the death penalty. (Id.) On January 12, 2006, after eight days of jury selection, Petitioner's jury trial commenced. (Id.)
During his opening statement, the prosecutor remarked that Petitioner's co-defendant had given a statement regarding Petitioner and the other co-defendant. (Hr'g Tr. 54:15-21, Jan. 12, 2006.) Specifically the prosecutor stated: "I'm going to focus for a moment on Riz [co-defendant Maurice Jones] . . . . He gave a statement, gave a statement to police. And in that statement he was asked whether he knew Mikey [co-Defendant Harold Murray] or Dinero [Petitioner]." Id. Co-defendant's counsel objected, arguing at a sidebar conference that the prosecutor's statement constituted a violation of Bruton v. United States, 391 U.S. 123 (1968), in that admission of a non-testifying co-defendant's statement implicating the defendant violates the defendant's Sixth Amendment right to cross-examination. (Id. at 54:22-56:15.) Defense counsel moved for a mistrial. (Id.) The trial judge, Judge Hodgson, denied the motion for mistrial but gave a curative instruction to the jury, and the lawyers continued their opening statements. (Id. at 57:14-15; 59:15-24.)
However, later in the day, Judge Hodgson reread the offending statement into the record and heard additional argument from counsel as to the potential Bruton violation. (Id. at 104-116.) After doing independent research, asking counsel to submit cases overnight, and hearing additional argument the next morning, Judge Hodgson granted a mistrial the next day, January 13, 2006. (Hr'g Tr. 33:25-34:26, Jan. 13, 2006.) In considering the issue, Judge Hodgson stated that she "poured over [the relevant cases] for hours." (Id. at 17:24-25.) She further stated, "I will admit that it is an unusual circumstance or unusual set of circumstances under which the violation occurred. As a result, I don't attribute any evil motives or any purposeful intent to prejudice the Co-Defendants by your [prosecutor's] action." (Id. at 33:7-12.)
On January 17, 2006, Petitioner filed a motion to bar retrial based on double jeopardy, claiming that the prosecutor's actions were deliberate and undertaken to prejudice Petitioner. (Def.'s Pet. Bar Prosecution ¶ 10.) Judge Hodgson denied the motion from the bench that day and subsequently filed a written opinion. (Ans. Ex. B, App. A.) In that opinion, Judge Hodgson reiterated that there was no evidence of prosecutorial bad faith or intent to deny the defendants a fair trial. (Id. at 6.) Moreover, Judge Hodgson stated that the defendants' theory of prosecutorial intent was "premature, speculative, and illogical." (Id. at 7.) Petitioner appealed to the Superior Court.
On January 7, 2008, the Superior Court affirmed the trial judge's order in an unpublished opinion. (Ans. Ex. A); see also Commonwealth v. Morris, 947 A.2d 829, 165 EDA 2006 (table) (Pa. Super. Jan. 7, 2008). The court found that Petitioner's co-defendant's statement did not present a Bruton problem because it did not directly incriminate Petitioner or his other co-defendant and was therefore admissible. (Id. at 10-12.) However, even assuming a Bruton violation, the court found no evidence of intentional misconduct that would constitute a double jeopardy violation to bar re-trial. (Id. at 6.) The court found this case readily distinguishable from cases in which the prosecutor's conduct was egregious. (Id.)
Petitioner missed the deadline to file an allowance of appeal with the Pennsylvania Supreme Court, but the court granted his application to file an appeal nunc pro tunc on September 25, 2008. (Ans. 4.) Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court on January 15, 2009. (Id.) On January 27, 2009, the Commonwealth indicated it would not be filing an opposition brief. See Commonwealth v. Morris, 48 MAL 2009 (Pa. Docket). On May 27, 2009, the Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal. Commonwealth v. Morris, 972 A.2d 521 (table) (Pa. May 27, 2009).
Petitioner filed a habeas petition with this Court on December 9, 2008 (Doc. No. 1), in which he raised the following claims:
(1) Double jeopardy motion should have been granted by the trial court or Pennsylvania Superior Court;
(2) Defendant was charged by way of Information, not Grand Jury Indictment or Presentment. ...