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Zachary Wilson v. Jeffrey A. Beard

April 20, 2012

ZACHARY WILSON
v.
JEFFREY A. BEARD, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

On April 19, 2004, we granted Petitioner Zachary Wilson's Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254 because Wilson had established, by a preponderance of the evidence, that the assistant district attorney who prosecuted him for the murder of David Swift engaged in intentional racial discrimination during jury selection, in violation of the Fourteenth Amendment to the United States Constitution. Wilson v. Beard, 314 F. Supp. 2d 434, 438, 450 (E.D. Pa. 2004) ("Wilson I"), aff'd 426 F.3d 653 (3d Cir. 2005). Our April 19, 2004 Order conditionally granted the Writ and permitted the Commonwealth to retry Wilson within 180 days, after which the Writ became unconditional. Id. at 450. In January 2010, nearly six years after we granted Wilson's Petition, the Commonwealth began proceedings to retry Wilson for the Swift murder. Presently before the Court are two Motions filed by Wilson, the "Motion to Enforce Writ of Habeas Corpus" and "Motion for Relief under FRCP 60(b)(6)," through which he seeks to prevent the Commonwealth from ever retrying him for the Swift murder. For the reasons that follow, both Motions are denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Swift Murder

Wilson was tried before a jury in the Philadelphia County Court of Common Pleas between May 10, 1986 and May 16, 1986, for the February 1, 1982 murder of David Swift. The only eyewitness to the murder was Leonard Guess, whose credibility was a central issue in Wilson's trial. Guess testified about the circumstances of Swift's murder as follows. Guess called Scotty's Garage on the evening of February 1, 1982, looking for a game of craps. N.T. at 2.36-2.37, Commonwealth v. Wilson, No. 51-CR-1229141-1983 (Phila. Cnty. C. P. May 11, 1984) ("N.T. 5/11/84"). Swift answered the garage's phone and told Guess he would pick him up and drive him to the garage. Id. at 2.37-2.38. Swift picked up Guess and also stopped to pick up Wilson on the way back to the garage. Id. at 2.38-2.39. Once they arrived at Scotty's Garage, Swift and Wilson shot craps for a while, then got into an argument over a $20 bet. Id. at 2.41-2.42. During the argument, Wilson pulled out a .38 caliber pistol and threatened to kill Swift if Swift didn't give him $20. Id. at 2.42-2.43. Louis Scott, the owner of the garage, then stepped in and told Swift to comply. Id. at 2.44-2.45. Swift gave Wilson the $20. Id. at 2.45. Scott then told Swift, Guess and Wilson to leave. Id. at 2.45-2.46. Swift left first, Wilson and Guess left two or three minutes later. Id. at 2.46. Guess and Wilson initially left the garage together, but Guess returned to the garage to retrieve his dice. Id. at 2.46-2.48. After Guess re-entered the garage he heard a shot outside, he then ran back outside, towards Swift's car and, from a distance of 40-50 feet, saw Wilson shoot into the driver's side of Swift's car three times Id. at 2.48-2.50. Guess then went back into the garage and asked Scott to call the police. Id. at 2.51. Guess left the scene after the police arrived. Id. Guess was questioned by the police ten days later. Id. at 2.54.

Wilson attempted to impeach Guess's credibility at trial through his own testimony, and through the testimony of two attorneys who had represented Guess before trial, Darryl Irwin and Adam Renfroe, Jr. Wilson testified that he saw Guess after he (Wilson) was arrested for Swift's murder and Guess told him that he (Guess) had implicated Wilson in the shooting because the police threatened to prosecute him (Guess) for the murder unless he implicated Wilson. N.T. at 3.24, Commonwealth v. Wilson, No. 51-CR-1229141-1983 (Phila. Cnty. C. P. Pleas May 14, 1984) ("N.T. 5/14/84"). Irwin, who also briefly represented Wilson in connection with the Swift murder, testified that, on October 5, 1983, he represented Guess in an effort to persuade a judge to lift a bench warrant that had been lodged against Guess for failing to appear to testify against Wilson in 1982. Id. at 3.54-3.57, 3.59. Guess told Irwin that he was acting as a prosecution witness because he had been threatened by homicide detectives and, in fact, he had not seen anything. Id. at 3.60-3.61.

Renfroe testified that he had represented Guess during Wilson's prosecution for Swift's murder, at which time he also represented Wilson in connection with the murder. Id. at 3.107, 3.110, 3.112. Renfroe testified that Guess had been jailed for at least one week, because he did not want to testify against Wilson. Id. at 3.110-3.111. Renfroe further testified that Guess told him that detectives had threatened to prosecute him (Guess) for the Swift murder if he refused to testify against Wilson. Id. at 3.126.

The Commonwealth called four witnesses on rebuttal to support Guess's testimony. Police Detective Harmon, Assistant District Attorney James Long , Assistant District Attorney Carroll, and Guess all testified that Guess was not harassed or threatened by police or the prosecution and that he had always been consistent in reporting that he had seen Wilson shoot Swift. Id. at 3.149-3.150, 3.153-3.154, 3.162, 3.173-3.176; N.T. at 8, Commonwealth v. Wilson, No. 51-CR-1229141-1983 (Phila. Cnty. C. P. May 15, 1984).

Wilson was convicted of first degree murder and possession of an instrument of crime and sentenced to life in prison. Commonwealth v. Wilson, No. 51-CR-1229141-1983, docket (Phila. Cnty. C. P.). On November 17, 1987, the Superior Court of Pennsylvania affirmed his conviction. Commonwealth v. Wilson, 536 A.2d 830 (Pa. Super. Ct. 1987). On January 4, 1988, he filed a pro se petition for relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq., and counsel was appointed to represent him. Wilson I, 314 F. Supp. 2d at 438. On March 30, 1994, the PCRA Court denied the petition and on November 13, 1995, the Superior Court affirmed. Commonwealth v. Wilson, No. 1421 PHL 1994 (Pa. Super. Ct. Nov. 13, 1995) (per curiam).

On June 2, 1997, Wilson filed a second PCRA petition, claiming for the first time that Jack McMahon, the assistant district attorney who prosecuted him for the Swift murder, had discriminated on the basis of race in jury selection in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and Swain v. Alabama, 380 U.S. 202 (1965). Wilson I, 314 F. Supp. 2d at 438. Wilson's claim was based on a videotaped lecture delivered by McMahon, sometime in 1986, two years after Wilson was convicted of the Swift murder, but which was not released to the public until late March or early April 1997. Id. at 438-39. On February 10, 1999, the PCRA Court denied Wilson's second PCRA petition and the Superior Court affirmed that decision on July 31, 2000. Commonwealth v. Wilson, No. 783 EDA 1999 (Pa. Super. Ct. July 31, 2000) (per curiam).

On January 23, 2002, Wilson filed a counseled petition for writ of habeas corpus in this Court, asserting a claim of racial discrimination in jury selection under Batson and Swain. Wilson I, 314 F. Supp. 2d at 439. On April 19, 2004, after holding an evidentiary hearing on Wilson's claim, we found that he had "established, by a preponderance of the evidence, that Mr. McMahon's decision to exercise a peremptory strike against one or more African-American members of the jury venire at [his] trial was motivated by racial discrimination." Id. at 439, 450. We granted the Writ as follows:

AND NOW, this 19th day of April, 2004, upon careful and independent review of the Petition for a Writ of Habeas Corpus (Docket # 1), the Report and Recommendation of Magistrate Judge Linda Caracappa, the hearings held on January 29, 2003, and September 29, 2003, and all related submissions, IT IS HEREBY ORDERED that the Petition for a Writ of Habeas Corpus is GRANTED. IT IS FURTHER ORDERED that Petitioner's convictions of May 16, 1984 for First Degree Murder and Possessing an Instrument of Crime, seeCommonwealth v. Wilson, Nos. 2914, 2916 (December Term, 1983), are VACATED. The Commonwealth of Pennsylvania may retry Petitioner on these charges within 180 days of the date of this Order.

Id. at 450. The United States Court of Appeals for the Third Circuit affirmed our Order granting the Writ on October 13, 2005. Wilson v. Beard, 426 F.3d at 670. The Third Circuit issued its mandate on October 31, 2005. Wilson v. Beard, No. 04-2461, docket (3d Cir.). The Commonwealth sought additional time to file a petition for writ of certiorari with the Supreme Court and the filing deadline was extended until March 13, 2006. Id. The Commonwealth notified the Supreme Court on March 13, 2006, that it would not file a petition for writ of certiorari. (Resp'ts' 11/18/11 Mem. at 8.)

B. The Lamb Murder

On January 7, 1988, after his conviction for the Swift murder, Wilson was convicted and subsequently sentenced to death for first degree murder and possession of an instrument of crime for the August 3, 1981 murder of Jamie Lamb. See Wilson v. Beard, Civ. A. No. 05-2667, 2006 WL 2346277, at *1 (E.D. Pa. Aug. 9, 2006) ("Wilson II"). Wilson's conviction for the Swift murder was one of the aggravating circumstances leading to his death sentence. Id. ("The jury found two aggravating circumstances -- a significant history of violent felony convictions and the knowing creation of a grave risk of death to others -- and no mitigating circumstances. The jury returned a death sentence." (citations omitted)). The Pennsylvania Supreme Court affirmed on direct appeal. Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1994). On March 11, 1996, Wilson filed a counseled PCRA petition, which was later amended to include a claim that the prosecutor failed to provide his trial counsel with exculpatory evidence regarding the Commonwealth's three main witnesses against him. Commonwealth v. Wilson, 861 A.2d 919, 923, 927-28 (Pa. 2004). The PCRA Court denied the PCRA petition on May 6, 1998. Commonwealth v. Wilson, 230 CAP, docket (Pa.). The Pennsylvania Supreme Court affirmed the denial of the PCRA petition on November 19, 2004. Wilson, 861 A.2d at 935.

On June 6, 2005, Wilson filed a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this Court. The Petition asserted a claim that the assistant district attorney who prosecuted Wilson for the Lamb murder violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide his counsel with exculpatory information that would have allowed his counsel to impeach the testimony of the three main witnesses against him (two eyewitnesses and one individual who claimed that Wilson had made a jailhouse confession). Wilson II, 2006 WL 2346277, at *3. We conditionally granted the Writ on August 9, 2006. Id. at *17; The Commonwealth appealed and, on January 29, 2007, at the Commonwealth's request, we stayed our order granting the Writ. Wilson v. Beard, Civ. A. No. 05-2667 (E.D. Pa. Jan. 29, 2007) (order staying case). The Third Circuit affirmed our August 9, 2006 Order granting the Writ on December 23, 2009. Wilson v. Beard, 589 F.3d 651 (3d Cir. 2009). On June 3, 2010, the Third Circuit certified its December 23, 2009 order in lieu of issuing a mandate, and we lifted the stay imposed by our January 29, 2007 order on June 9, 2010. Wilson v. Beard, Civ. A. No. 05-2667 (E.D. Pa. June 9, 2010) (order lifting stay).

C. The Commonwealth's Proceedings to Retry Wilson for Both Murders The Commonwealth began proceedings to retry Wilson for Swift's murder soon after the Third Circuit affirmed our Order granting the Writ with respect to Wilson's conviction for the Lamb murder. On January 22, 2010, the Philadelphia County Court of Common Pleas appointed counsel for Wilson in connection with his prosecution for the Swift murder, and on February 16, 2010, he appeared before Judge Benjamin Lerner and was re-arraigned on the charges relating to the Swift murder. See Commonwealth v. Wilson, No. 51-CR-1229141-1983, docket (Phila. Cnty. C. P.). The Philadelphia County Court of Common Pleas appointed counsel for Wilson in connection with his prosecution for the Lamb murder on September 7, 2010, and he was re-arraigned on the charges relating to the Lamb murder on October 5, 2010 and is currently awaiting trial. Commonwealth v. Wilson, No. 51-CR-0929501-1986, docket (Phila. Cnty. C. P.).

D. The Current Federal Court Proceedings

On February 18, 2010, Wilson filed the Motion to Enforce Writ of Habeas Corpus (the "Motion to Enforce") in this Court, seeking to prevent the Commonwealth from retrying him for the Swift murder. Wilson's prosecution for the Swift murder has been stayed since Wilson filed the Motion to Enforce. Commonwealth v. Wilson, No. 51-CR-1229141-1983, docket (Phila. Cnty. C. P.).

We held argument on the Motion to Enforce on June 2, 2010 and scheduled the matter for an evidentiary hearing. On September 29, 2010, Wilson filed the "Motion for Relief Under FRCP 60(b)(6)" (the "Rule 60(b)(6) Motion"), asking that we vacate our April 19, 2004 Order and issue a new order, granting an unconditional writ and prohibiting Wilson's retrial for the Swift murder. We held evidentiary hearings in connection with both Motions on May 31, 2011, June 2, 2011, June 24, 2011, and July 14, 2011. The parties subsequently filed proposed findings of fact and conclusions of law and a final argument was held on the Motions on April 11, 2012.

II. THE MOTION TO ENFORCE

Wilson argues, in the Motion to Enforce, that the Commonwealth is forever barred from retrying him for the Swift murder because it waited more than 180 days after we issued the Writ to commence proceedings relating to his reprosecution.*fn1 Wilson relies on the portion of our April 19, 2004 Order that states: "The Commonwealth of Pennsylvania may retry Petitioner on these charges within 180 days of the date of this Order." Wilson I, 314 F. Supp. 2d at 450. Wilson, however, cites no authority for the proposition that we may bar his retrial based solely on the Commonwealth's failure to retry him within 180 days, and his argument evidences a misunderstanding of the nature of a conditional writ of habeas corpus.

The issuance of a writ of habeas corpus is, in essence, a declaration, "that the petitioner is being held in custody in violation of his constitutional (or other federal) rights." Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008) (citing 28 U.S.C. § 2254(a), and Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). When the district court issues the writ, it may order that the petitioner be released immediately, or it may make his release conditional:

"Where a state prisoner has obtained from a district court a decision that his state confinement is unlawful, he is entitled to an order that such confinement be ended. The district court's final order may be in one of two forms. It may unconditionally order the prisoner's release, or it may order his release at some time in the near future if, in the meantime, he has not been afforded a new trial."

Carter v. Rafferty, 781 F.2d 993, 994 n.2 (3d Cir. 1986), overruled on other grounds by Hilton v. Braunskill, 481 U.S. 770 (1987) (quoting United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 742 (3d Cir. 1973)). Our April 19, 2004 Order is "a conditional order of release . . . which orders the State to release the petitioner unless the State takes some remedial action" that would make his detention constitutional. Harvest, 531 F.3d at 741-42 (citations omitted). Conditional writs "'are essentially accommodations accorded to the state . . . [that] provide[] the state with a window of time within which it might cure the constitutional error. Failure to cure that error . . . justifies the district court's release of the petitioner.'" Gibbs v. Frank, 500 F.3d 202, 208 (3d Cir. 2007) (quoting Phifer v. Warden, 53 F.3d 859, 864-65 (7th Cir. 1995)). Consequently, an order granting the state a limited window of time to retry the petitioner is not an absolute deadline for retrial. Rather, if the state fails to retry the petitioner within the time period set in the conditional writ, the writ simply comes absolute. See Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006) ("[T]he sole distinction between a conditional and an absolute grant of the writ of habeas corpus is that the former lies latent unless and until the state fails to perform the established ...


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