The opinion of the court was delivered by: Lisa Pupo Lenihan United States Magistrate Judge
Petitioner Ronald A. Williams, who is currently an inmate at the State Correctional Institution at Greene, Pennsylvania, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 6, 1998, challenging his conviction on January 24, 1985 in the Court of Common Pleas of Butler County, Pennsylvania, on charges of first degree murder and related offenses and the sentence of life imprisonment and a consecutive term of five to ten years, imposed by the trial court on August 11, 1989 following his appeal to the Pennsylvania Supreme Court, which reversed the death sentence originally imposed by the trial court on June 27, 1985. Commonwealth v. Williams, 561 A.2d 714 (Pa. 1989). The charges against Petitioner and his brother and co-defendant, Raymond Williams, arose out of the shooting death of Archie Bradley, a truck driver, who was killed in the Norsub parking lot in Cranberry Township on August 5, 1984. Pending before the Court is Petitioner's motion to amend the petition.
In the petition, he presented many claims of trial error, including two claims of jury bias:
1) that the trial court denied him his right to self-representation when a juror stated that he had received ex parte information of Petitioner's criminal record from the district attorney and an alternate juror stated that he had received similar ex parte information from a prosecution team police officer (i.e., the jury overheard information that he and Raymond were involved with murders committed in Michigan); and 2) that he was denied a full and fair hearing in his Post Conviction Relief Act (PCRA) proceedings*fn1 where the state courts failed to allow him to raise the disingenuousness of the jurors on voir dire, where they denied having racial bias but some of them referred to Petitioner, his brother and black people as "niggers" and to other jurors as "nigger lovers" outside of the jury room and then stated that "all niggers do is cause trouble" and then carried this bias into their deliberations which denied him a trial by a fair and impartial jury. (Pet. ¶¶ 13-14.)*fn2
On February 28, 2000, a report and recommendation was filed by Magistrate Judge Sensenich (Docket No. 19), which recommended that the petition be denied. With respect to these two claims, the report and recommendation stated as follows: 1) as to the claim of an external influence on the jury, the Pennsylvania Supreme Court had adjudicated this claim on the merits, determined that the information was not given to the jury until after the guilt phase of the trial had concluded and provided a remedy by reducing Petitioner's sentence to life imprisonment; and 2) as to the claim of racial bias on the jury, the state courts had concluded that Petitioner could not support this claim by means of juror statements because of the "no-impeachment rule" and this conclusion was not contrary to or an unreasonable application of Tanner v. United States, 483 U.S. 107, 117 (1987), and other relevant Supreme Court cases. The report and recommendation was adopted by Judge Ziegler and the case was closed on June 27, 2000 (Docket No. 26). Petitioner filed a motion for reconsideration (Docket No. 27), which was denied by Judge Ziegler in an order dated July 11, 2000 (Docket No. 28).
On August 4, 2000, Petitioner filed a notice of appeal (Docket No. 29) and on May 17, 2002, the Court of Appeals for the Third Circuit granted him a certificate of appealability limited to two questions: was he denied due process in violation of the Fourteenth Amendment or a fair trial or impartial jury in violation of the Sixth Amendment because (1) jurors were disingenuous on voir dire in answering questions about racial bias; or (2) is this a rare case which is an exception to the "no-impeachment rule"? (Docket No. 30.) On October 1, 2003, the court issued a judgment that affirmed in part and reversed in part this Court's order and remanded the case for an evidentiary hearing (Docket No. 32).
The opinion, dated September 9, 2003, was published as Williams v. Price, 343 F.3d 223 (3d Cir. 2003). The Court of Appeals affirmed this Court's conclusion that the jury received the information about other criminal activity after the guilt-phase of the trial had ended and that the Pennsylvania Supreme Court had already provided Petitioner with a remedy. Id. at 235.
The court parsed the claim of racial bias on the jury more finely. It held that the PCRA court did not violate clearly established federal law by excluding evidence as presented in an affidavit by Juror Judith Montgomery that she had heard racist remarks*fn3 by other jurors based on the "no-impeachment rule." Id. at 235-39.*fn4
However, Petitioner also had presented the affidavit of Jewel Hayes, a trial witness, who stated that, after the trial concluded, she encountered Juror Number Two in the lobby of the courthouse and he made racial remarks to her.*fn5 Because Hayes was not a juror, the remarks were made in a public place and they had no connection to the jury deliberations, the Court of Appeals held that her affidavit was not excluded by the "no-impeachment rule." Moreover, because the PCRA court simply excluded Hayes's affidavit and did not make specific findings that Petitioner failed to produce her, that her testimony was not credible or that Juror Number Two had spoken truthfully on voir dire, the Court of Appeals concluded that the state court had unreasonably applied clearly established federal law, namely that a state evidence rule may not severely restrict a defendant's right to put on a defense if the rule is entirely without any reasonable justification. Id. at 232, 234. The court remanded the case "for an evidentiary hearing at which Williams has the opportunity to make the showing mandated by McDonough." Id. at 239.*fn6
Upon remand, Petitioner began making requests to raise new issues. His first request was denied following a status conference before Magistrate Judge Sensenich in an order dated February 24, 2004 (Docket No. 38). He filed a motion for reconsideration (Docket No. 42) on April 22, 2004 and it was denied by the undersigned on April 29, 2004.*fn7 On April 29, 2005, Petitioner (now represented by Lisa Freeland, the Federal Public Defender),*fn8 filed a motion for leave to amend the petition (Docket No. 52), but before the Court could rule on it, Petitioner filed a motion to stay proceedings so that he could exhaust his state court remedies (Docket No. 56), which was granted in an order dated July 27, 2005 (Docket No. 57). On September 22, 2005, the undersigned entered an order dismissing Petitioner's motion to amend without prejudice to be refiled after completion of state court proceedings and the lifting of the stay (Docket No. 58).
Petitioner was concerned about the running of the statute of limitations and requested that the Court instead stay all pending motions. On November 30, 2005, Judge Cercone*fn9 entered an order rescinding the September 22, 2005 order, closing the case statistically and staying all pending motions until such time as Petitioner exhausted his state court remedies and filed a motion to reopen (Docket No. 62).
On April 18, 2008, Petitioner filed a motion to reopen the case (Docket No. 63) and the case was reopened on April 24, 2008 (Docket No. 64). The Butler County District Attorney withdrew from the case because of a conflict and Jennifer Buck of the Attorney General's Office entered her appearance on behalf of the Respondent on October 1, 2008.*fn10 During a telephone status conference on December 29, 2008, dates were set for the Respondent to file an answer to the "amended petition" and for the parties to file further briefs prior to an evidentiary hearing.
Because of the convoluted history of the case, no one raised the issue that Petitioner's motion to amend the petition that had been filed on April 29, 2005 remained pending. However, in preparing a response, Respondent realized that the motion had not been ruled upon and on April 2, 2009, he filed a second response to the motion to amend, in which he presented three arguments as to why the Court should not permit Petitioner to amend the petition or expand the scope of the evidentiary hearing from what had been ordered by the Court of Appeals (Docket No. 71). In response to an order of Court (Docket No. 73), Respondent filed a supplement to this response on April 13, 2009 (Docket No. 76), to which he attached the records from Petitioner's most recent PCRA petition.*fn11
During the time that the case was statistically closed, the following occurred. On June 29, 2005, Petitioner filed a second PCRA petition in the Court of Common Pleas of Butler County. In it, he presented the following claims: 1) the prosecution suppressed, withheld and interfered with his access to the 911 tape which is exculpatory evidence and denied him a fair trial; 2) the government interfered with his right to prove that jury tampering concerning the jury's receipt of information about his criminal record occurred before the verdict of guilt or innocence; 3) three other jurors had also lied about racial bias during the voir dire; 4) one of these jurors had also lied when he said he had not read pre-trial newspaper accounts about the case; 5) another juror had third-party contact with a Commonwealth witness who relayed prejudicial information; and 6) the jury had engaged in premature deliberations (Docket No. 76 Ex. A at 6, 13, 14, 25, 28, 32, 38, 41, 48, 53). On November 30, 2005, Judge Thomas J. Doerr filed an opinion and notice of his intent to dismiss Petitioner's second PCRA petition without a hearing as untimely (Docket No. 76 Ex. C). Petitioner did not respond and on February 1, 2006, Judge Doerr dismissed the petition (Docket No. 76 Ex. D).
Petitioner filed an appeal in the Pennsylvania Superior Court, docketed at No. 455 WDA 2006. He filed a brief on September 5, 2006 and the Commonwealth filed its brief on November 6, 2006 (Docket No. 76 Exs. E, F). He raised the following issues:
I. Did the lower court err by deeming all issues waived for failing to file a concise statement of matters complained of on appeal when such concise statement was timely filed under the prisoner mailbox rule?
II. Did the PCRA court commit an error of law by dismissing Mr. Williams' PCRA petition as time barred without conducting a hearing and without appointing counsel when that petition raises claims of exculpatory evidence previously unknown to the petitioner which could not have been ascertained by due diligence as well as claims of governmental interference?
A. Did the prosecution suppress, withhold and interfere with petitioner's access to the 911 tape--which is exculpatory evidence--and in doing so violate his right to a fair trial under the Pennsylvania and United States Constitutions?
B. Was Pennsylvania Supreme Court's Opinion based on Unreliable Information as a Result of Prosecutorial Misconduct, Obstruction of Justice and Numerous Cover-Ups?
C. Did Governmental Interference deny Petitioner the right to prove that jury tampering occurred before the verdict of guilt or innocence?
D. Was the petitioner denied a fair trial by an impartial jury in violation of due process under the Pennsylvania and United States Constitutions? (Docket No. 76 Ex. E at 4.)
On August 7, 2007, the Superior Court affirmed the PCRA court's dismissal of the petition as untimely (Docket No. 76 Ex. G). In its opinion, the Superior Court disagreed with the PCRA court and held that Petitioner had complied with Pennsylvania Rule of Appellate Procedure 1925(b) in filing his concise statement of matters complained of on appeal and his issues were not waived.*fn12 However, the court held that the PCRA petition was untimely because it had not been filed within a year of the date upon which Petitioner's judgment became final (that is, by January 17, 1996), 42 Pa. C.S. § 9545(b), and that he failed to demonstrate that he filed it within 60 days of the date interference by government officials prevented him from doing so or the facts became known to him and could not have been ascertained previously, § 9545(b)(1)(i)(ii), (2).
Specifically, the court held that: 1) Petitioner's claim that the Commonwealth intentionally suppressed a 911 tape that tended to exculpate him had been raised and disposed of in his first PCRA petition; 2) his claim that the prosecution obstructed justice during his direct appeal of his death sentence was belied by the fact that the Supreme Court had reversed his death sentence in 1987; 3) his claim that the Commonwealth covered up the fact that the jury had been tampered with when it was provided information about his criminal record had been adjudicated and remedied by the Supreme Court in 1987 and the claim that the Commonwealth was somehow responsible for the tainting of the jury had been disposed of in his first PCRA petition; and 4) the affidavits he submitted did not contain facts previously unknown to him that he could not have ascertained with the exercise of due diligence and/or they did not prove that a juror failed to answer honestly a material question on voir dire and that a correct response would have provided a valid basis for a challenge for cause. (Docket No. 76 Ex. G at 15-18.)
First, the two Montgomery affidavits (written in 1985 and 1988) and Hayes affidavit (also written in 1988) were all in existence prior to January 17, 1996 and therefore by definition they did not present new facts. (Id. at 19-21.) Thomas Baughman, a former co-worker of Juror Paul Bowser, stated in an affidavit dated April 22, 2005 that he had worked with Bowser for eight years and that he heard Bowser make racial remarks,*fn13 but Petitioner offered no reason why he could not have obtained Baughman's statement earlier. (Docket No. 76 Ex. G at 21-22.) Trial witness Sallie Lane stated in an affidavit dated April 25, 2005 (Docket No. 52 Ex. L) that she heard one male juror make a racial remark to another male juror in the courthouse parking lot one day after proceedings had commenced and also that she responded to a female juror's question by stating that she (Lane) thought the Williams brothers were guilty because they stored guns at her house (contrary to her trial testimony that all they stored at her house was clothes), but Petitioner offered no explanation for why it took him 20 years to obtain Lane's affidavit. (Docket No. 76 Ex. G at 22-23.)
Jeffrey Lake, a former co-worker of Juror Robert Hancheck, stated in an affidavit dated April 27, 2005 that he had worked with Hancheck for four years and that Hancheck gave him the impression that he harbored racial animus toward him because he would "talk down" to him, "belittle" him and "would avoid having to shower close to [him]." (Docket No. 52 Ex. G.) However, Petitioner offered no excuse for failing to present Lake's affidavit in his first PCRA petition in 1994, although the petition asserted allegations of juror bias and the affidavit did not uncover "facts" proving that Hancheck lied on voir dire, but instead relied only on inferences and it was equally likely that Hancheck did not like Lake for reasons unrelated to race. (Docket No. 76 Ex. G at 23-24.) Eric Cook, who also worked with Hancheck, stated in an affidavit dated April 27, 2005 that he had a discussion with a third party in 2004 and that the third party "said something about there being a [Ku Klux] Klan meeting on Robert Hancheck's farm though he did not mention when this occurred" and that "[t]here were several incidents where I had a conversation where he would complain about blacks getting benefits and he would use the term 'nigger' to refer to them." (Docket No. 52 Ex. H.) However, the court found that the testimony about a Klan meeting was inadmissible hearsay and that a fair reading of the second item suggested that it was the third-party declarant (and not Hancheck) who used the offensive racial slur. (Docket No. 76 Ex. G at 24-25.)
Richard Goldinger served as trial counsel for Petitioner's brother Raymond. In a March 28, 2005 affidavit, Attorney Goldinger stated that he had a discussion with Juror Montgomery following the sentencing and that she told him she had been called a "nigger lover," that the jurors had been discussing the rumor that Petitioner had murdered someone in Detroit, and that Alternate Juror Gary Archer was not properly sequestered from the jury and was permitted to taint the jury pool with information he had learned from a third-party law enforcement official during the course of the proceedings. (Docket No. 52 Ex. A.) However, the court noted that Attorney Goldinger was clearly aware of these facts at the time of the trial and Petitioner offered no reason for failing to take this affidavit for twenty years. (Docket No. 76 Ex. G at 25-26.)
Finally, Petitioner proffered the April 29, 2005 affidavit of Marc Caudel, an investigator with the Federal Public Defender's Office, following his interviews with every living member of the jury.*fn14 Caudel reported that, although the jurors denied making racial remarks themselves, three of them (Francis Geisler, Robert Hancheck and Bruce Heim) admitted either that such comments might have been made by others or that if such remarks had been made, they would not have left a lasting impression because such language was very common in Butler at that time. In addition, during his interview, Juror Geisler blurted out that he "didn't know what to call" blacks and admitted (in a seeming contradiction to his testimony at voir dire) that he had read articles about the shooting, Juror Judy Chilleo admitted that one juror tried to sway the jury into voting guilty from day one, and Juror Bowser admitted that he had gone to lunch with Alternate Juror Archer and that Archer told him he was convinced the Williams brothers were guilty.
The Superior Court found that Geisler's statement did not clarify whether he read newspaper articles before or after the trial but in any event, numerous potential jurors admitted during voir dire to reading articles or headlines about the shooting, but none of them was challenged for cause. As for Geisler's alleged comments to Caudel about not knowing what to call blacks, they did not demonstrate that he lied on voir dire. Chilleo did not admit to hearing any racially insensitive remarks during the trial, nor did Bowser, Hancheck or Heim. Finally, the court held that Bowser's ...