IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 7, 2010
PHILLIP ANTONIO THOMPSON, PETITIONER,
LOUIS S. FOLINO, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Anita B. Brody, J.
EXPLANATION AND ORDER
Phillip Antonio Thompson ("Petitioner") petitions this Court for a federal Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. I referred the petition to Magistrate Judge Arnold C. Rapoport for a Report and Recommendation ("R&R") in accordance with 28 U.S.C. § 636(b)(1)(B). The R&R recommended that I deny the petition; Petitioner filed Objections. After careful consideration of the R&R (ECF No. 13) and Petitioner's Objections (ECF Nos. 14, 15), I agree with the Magistrate's recommendation and I will deny the petition.
On November 6, 2000, Petitioner was charged with robbery and murder; he was arrested the next day. Petitioner's coconspirator, Michael Bagley, was not charged until April of 2001. The Commonwealth of Pennsylvania (the "Commonwealth") requested the trial court sever the two cases to ensure that Petitioner received a prompt trial. The motion to sever was granted and, beginning on July 17, 2001, Petitioner was tried in the Court of Common Pleas of Delaware County. On July 24, 2001, mistrial was declared when the jury was unable to unanimously agree upon a verdict.
On August 23, 2001, the Commonwealth moved to join the cases as Bagley was also ready to proceed to trial. Petitioner's counsel requested that the cases be severed. After holding a hearing, Judge Toal granted the motion for joinder. In October 2001, a joint trial was held and Petitioner was convicted of second degree murder, robbery, and criminal conspiracy. On December 11, 2011, he was sentenced to life imprisonment.
After unsuccessful direct appeals of his conviction, and after seeking relief pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), Petitioner filed a timely pro se petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on November 4, 2008. The next day, Petitioner filed a second PCRA petition in state court. On November 18, 2008, the second PCRA petition was summarily dismissed by the Court of Common Pleas of Delaware County as time-barred.
On May 28, 2009, Magistrate Judge Arnold C. Rapoport submitted an R&R to this Court recommending that the federal petition be denied with prejudice. Petitioner filed objections on June 11, 2009 and amended objections on July 20, 2009 (collectively "Objections"). Petitioner's Objections appear to challenge the R&R on two bases: (1) that it was premature because Petitioner's second PCRA petition was still pending in state court and (2) that it misconstrued his claim regarding the state trial court's joinder of his trial.*fn2 Subsequent to the issuance of the R&R, both the Superior Court and Supreme Court of Pennsylvania affirmed the Court of Common Pleas's dismissal of Petitioner's second PCRA petition as time-barred.
This Memorandum reviews de novo those portions of the R&R to which Petitioner objects. See 28 U.S.C. § 636(b)(1)(C). To fully consider the Objections, this case was placed in suspense until the complete state court records were received by the Court.*fn3 For the reasons below, I will overrule the Objections, approve and adopt the R&R, and dismiss the petition with prejudice.
A. The Claims in Petitioner's Second PCRA Petition are Procedurally Defaulted
Judge Rapoport's R&R explains that he found it unnecessary to stay the petition until the second PCRA petition was rejected by the state's appellate courts. In his Objections, Petitioner argues that the R&R is "premature" because he is still "exhausting the second round of issues."
Objections 7, 6.Petitioner does not identify which claims he believes to be presented in both his federal petition and second PCRA petition.*fn4 Presumably the significance of Petitioner's statements is that he objects to Magistrate Judge Rapoport's finding that the federal petition does not raise claims presented in his second PCRA petition. See R&R 8 n.3. It would follow that Petitioner means to argue that his petition is mixed and that it should have been stayed until all claims were exhausted in state court.
It would be futile to engage with the merits of this argument. We now know that even if a stay had been issued,*fn5 the R&R would not have been able to reach the merits of the claims raised in his second PCRA petition. Assuming arguendo that additional claims in the second PCRA petition are incorporated into the instant petition and that Petitioner would have successfully convinced the Court not to dismiss his unexhausted claims, such a stay would now have been lifted only to find that federal review of those claims is barred. Petitioner's second petition was denied by the state courts as procedurally barred under state law. Commonwealth v. Thompson, No. cp-23-cr-0003788-2000 (Pa. Ct. Com. Pl., Del. County, Nov. 18, 2008) (dismissing second PCRA motion for relief without a hearing as being untimely under Pennsylvania law); Commonwealth v. Thompson, No. cp-23-cr-0003788-2000 (Pa. Ct. Com. Pl., Del. County, Jan. 6, 2009) (recommending that the only issue that should be addressed on appeal is whether the PCRA was properly denied as being untimely and suggesting that the issue lacked merit); Commonwealth v. Thompson, No. 3573 EDA 2008 (Pa. Super. Ct. June 4, 2009) ("we discern no basis upon which to disturb the ruling of the trial court that appellant's second PCRA petition was untimely"); Commonwealth v. Thompson, No. 538 MAL 2009 (Pa. Nov. 23, 2009) (denying the petition for allowance of appeal). Federal review of his second PCRA petition claims is barred because they were procedurally defaulted under state procedural rules. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred . . . ."). While there are exceptions to this rule, Petitioner has not demonstrated that any are applicable here. Thus, I find no reason to reconsider the R&R's findings on the basis of this Objection.
B. The State Trial Court's Joinder of Trials Was Not Contrary to Clearly Established Federal Law Petitioner claims that the trial court committed error when it granted the Commonwealth's motion for joinder, thereby joining Petitioner's trial with that of his coconspirator. Judge Rapoport reviewed the state court's rejection of this claim and recommended that its decision was not contrary to Supreme Court law. R&R 20-22. Petitioner objects that the R&R "erred in mischaracterizing [his] claim as a 'severance issue' and disposing of [his] claim based upon this mischaracterization." Am. Objections 5. His argument is not that the trial court abused his discretion in allowing a joint trial contrary to caselaw on the propriety of severance, but rather that "the trial court abused its discretion by reversing its prior order severing petitioner from his co-defendant." Id. 2. The trial court's reversal of his ruling on the previous motion to sever violated the Supreme Court's "law of the case doctrine." Id.
I am reluctant to take seriously the assertion that the R&R "mischaracterizes" Petitioner's claim considering that this characterization was not previously made in this petition. More importantly, this argument may never have been presented before to any court. Petitioner's "law of the case" argument was not discussed by the state courts, nor does it appear to have been presented to them.*fn6
Notwithstanding the threshold inquiry of whether Petitioner exhausted review of this argument, the argument can also be rejected for failing to provide a basis for a federal writ of habeas corpus. Petitioner does not identify a state court "decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). The Supreme Court cases Petitioner cites discuss the law-of-the-case doctrine, but neither case teaches that the doctrine prevents a trial court from reconsidering pretrial rulings for a later retrial.*fn7 Certainly these cases did not involve the Supreme Court finding the doctrine applied to facts such as these: where a trial court revisited its ruling on severance after a mistrial, a timely pre-retrial motion for joinder was made by the government, about which Petitioner was given notice and an opportunity to oppose, and after a hearing on the motion for joinder was held.*fn8 Thus, the trial court's decision to join Petitioner's trial with his coconspirator's was not contrary to clearly established federal law regarding the case-of-the-law doctrine.
III. CONCLUSION AND ORDER
For the reasons stated in Judge Rapoport's R&R and over Petitioner's Objections, I find that Petitioner is not entitled to habeas corpus relief from his conviction.
AND NOW, this _7th___ day of December, 2010, it is hereby ORDERED that:
1. The Report and Recommendation (Doc. 13) is APPROVED as to its recommendation to deny the petition.
2. Petitioner's objections are OVERRULED.
3. The petition for a writ of habeas corpus is DENIED with prejudice.
4. There is not probable cause to issue a Certificate of Appealability.
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