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Nakia William Garrus v. *Secretary of the Pennsylvania Department of Corrections; the

September 21, 2012

NAKIA WILLIAM GARRUS,
APPELLANT
v.
*SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL FOR THE STATE OF PENNSYLVANIA



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-07-cv-00187) District Judge: Honorable Timothy J. Savage

PRECEDENTIAL

*Pursuant to Rule 43(c), Fed. R. App. P.

Argued En Banc May 30, 2012

Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR. and VANASKIE, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge, joined by McKEE, Chief Judge, and SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, and JORDAN, Circuit Judges.

William Garrus ("Garrus"), a Pennsylvania state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Garrus was found guilty in state court of voluntary manslaughter in 2001. At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s "three strikes" law. In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied). In the habeas petition now before us, Garrus argues that this judicial factfinding violated the rule of Apprendi v. New Jersey, requiring that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). The District Court denied the petition on the basis that the highest state court determination upholding Garrus‟s sentence was not contrary to or an unreasonable application of clearly established Federal law.

Key to our determination is a single question: whether, pursuant to AEDPA, the state court unreasonably applied Apprendi by allowing Garrus to be sentenced beyond the statutory maximum based on a judicial finding that Garrus burglarized an occupied building, despite his plea to the contrary.*fn1 For the reasons set forth below, we hold that the state court determination upholding Garrus‟s sentence was objectively unreasonable, and that Garrus is entitled to habeas relief. Accordingly, we will reverse the order of the District Court.

I.

On February 10, 2000, Garrus was at the home of his girlfriend, Toi Bryant, with whom he has a daughter, when Bryant‟s ex-boyfriend, Charles Goode, showed up at the residence. Shortly after Goode arrived, an argument ensued between him and Bryant involving their child. As the argument escalated, Garrus took his daughter upstairs. He later returned downstairs to the kitchen where Goode and Bryant were arguing. After Garrus and Goode exchanged some heated words, a fight broke out between the two men. Garrus picked up a kitchen knife and stabbed Goode several times in the chest area. Goode broke away from Garrus and ran upstairs to the bathroom. Garrus left the home. When police arrived, both Goode and Bryant identified Garrus as the attacker. Goode later died from his injuries.

Following a jury trial in the Philadelphia County Court of Common Pleas, Garrus was convicted on March 9, 2001, of voluntary manslaughter and possession of an instrument of crime. A conviction for voluntary manslaughter carries a maximum sentence of 20 years of imprisonment. 18 Pa. Cons. Stat. §§ 1103, 2503(c). However, the Commonwealth of Pennsylvania (the "Commonwealth") notified the trial court that it would seek a sentencing enhancement under Pennsylvania‟s "three strikes" law, which requires a judge to sentence a defendant to a minimum term of 25 years‟ imprisonment (and a maximum of up to life imprisonment) if the defendant was previously convicted of two or more separate "crimes of violence." 42 Pa. Cons. Stat. § 9714.

"Crimes of violence" may include first degree burglary (defined as, inter alia, burglary of an occupied structure), but do not include second degree burglary (defined as, inter alia, burglary of an unoccupied structure).*fn2

On April 30, 2001, the trial court held the first of two sentencing hearings. The Commonwealth offered evidence that Garrus had three prior convictions for "crimes of violence:" (1) a January 1995 conviction for first-degree robbery; (2) a February 1995 conviction for first-degree robbery; and (3) a February 1997 plea and conviction for second-degree burglary. The Commonwealth argued that although Garrus had only pled guilty to second degree burglary in 1997, the trial court should consider a police report and witness statements regarding that burglary to find instead that the building Garrus had burglarized in 1997 was occupied. On the basis of the police report and witness statements, the trial court found at the second sentencing hearing on May 8, 2001, that Garrus‟s prior 1997 conviction for second-degree burglary constituted a crime of violence under § 9714. Commonwealth v. Garrus, June Term 2000 No. 0092, slip op. at 17 (Phila. Cnty. Ct. Com. Pl. Jan. 16, 2002). Additionally, it found that the two 1995 robberies constituted two separate crimes of violence, and that his conviction for voluntary manslaughter was his fourth crime of violence. Id. The trial court sentenced Garrus to a term of 25 to 50 years‟ imprisonment. Id.

Garrus appealed his conviction and sentence to the Superior Court of Pennsylvania.*fn3 He argued that, by definition, his 1997 second-degree burglary conviction did not constitute a "crime of violence" under Pennsylvania‟s "three strikes" law. The Superior Court of Pennsylvania adopted the trial court‟s opinion in its entirety. Commonwealth v. Garrus, No. 2592 EDA 2001 (Pa. Super. Ct. Oct. 18, 2002). The Supreme Court of Pennsylvania granted Garrus‟s petition seeking allocatur on the sole issue of Garrus‟s sentence, Commonwealth v. Garrus, 817 A.2d 455 (Pa. 2003), but later dismissed the appeal in September 2003 as having been improvidently granted. Commonwealth v. Garrus, 832 A.2d 1063 (Pa. 2003).

In April 2004, Garrus filed a pro se petition for post- conviction relief in the Philadelphia County Court of Common Pleas, pursuant to Pennsylvania‟s Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq., challenging his sentence. He argued that the trial court, at sentencing, violated his constitutional rights, as articulated in Apprendi, 530 U.S. at 476, by relying on the police report and victim statement to determine that his 1997 burglary conviction was a "crime of violence" under Pennsylvania‟s "three strikes" law. Garrus also asserted that state law required his two 1995 robbery convictions to be considered as one "crime of violence" under the "three strikes" law. As a result, Garrus claimed that he had, at most, one prior conviction for a "crime of violence," rendering him ineligible for the 25-year mandatory minimum sentence he had received.

Garrus‟s PCRA petition was dismissed in February 2005. A month later, the Supreme Court rendered a decision in Shepard v. United States, 544 U.S. 13 (2005), in which the Court held that a sentencing court is not permitted to consider police reports in determining whether a prior conviction constituted a "violent crime" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924, a federal recidivism statute. Id. at 16, 26.

On appeal from the denial of his PCRA petition, Garrus argued that the sentencing court‟s consideration of the police report and victim statement, with respect to his 1997 burglary conviction, violated his rights under Apprendi and Shepard, and he again argued that his two 1995 robbery convictions constituted one "crime of violence." The Superior Court of Pennsylvania affirmed the denial of his PCRA petition. Commonwealth v. Garrus, No. 961 EDA 2005 (Pa. Super. Ct. Apr. 18, 2006). In its opinion, the Superior Court acknowledged that Apprendi requires that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 8-9 (quoting Apprendi, 530 U.S. at 476). However, it determined that the prior conviction exception permitted the sentencing judge to find that Garrus had burglarized an occupied building despite his plea to the contrary, and to sentence him beyond the statutory maximum accordingly. The Superior Court also determined that the Supreme Court‟s decision in Shepard did not affect the validity of the prior conviction exception established in Apprendi. Finally, on the basis that the 1997 burglary constituted a "crime of violence," the Superior Court declined to reach the issue of whether the two 1995 robberies constituted separate crimes. The Supreme Court of Pennsylvania denied Garrus‟s petition seeking further appellate review. Commonwealth v. Garrus, 906 A.2d 639 (Pa. Aug. 29, 2006) (table).

On January 16, 2007, Garrus filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 2254. Garrus raised the same challenges to both his 1997 burglary conviction and the two 1995 robbery convictions. The Magistrate Judge denied Garrus‟s petition, Garrus v. Mazurkiewicz, No. 07-187 (E.D. Pa. May 28, 2008), and concluded that it was precluded from granting federal habeas relief because the sentencing court‟s consideration of the police report and victim statement in determining whether Garrus had two prior convictions for crimes of violence under Pennsylvania‟s "three strikes" law was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Id. at 38-39.

The Magistrate Judge also concluded that Garrus‟s argument that his two 1995 robbery convictions should be considered as one for purposes of the recidivism statute was therefore moot, as Garrus still had at least two prior convictions for crimes of violence - the 1997 burglary conviction and at least one of the 1995 robbery convictions. In any event, the Magistrate Judge reasoned, Garrus‟s challenge to the 1995 robbery convictions involved an interpretation of state law and could not be considered by federal courts in a habeas petition.

Nevertheless, the Magistrate Judge recommended that the District Court issue a certificate of appealability to this Court, limited to the issue involving the 1997 burglary conviction. The District Court adopted the Magistrate Judge‟s recommendation, with the exception that it rejected the Magistrate Judge‟s determination that sufficient grounds existed to issue a certificate of appealability. Garrus v. Johnson, No. 07-187 (E.D. Pa. Aug. 18, 2009). Garrus appealed, and on March 12, 2010, we granted a certificate of appealability to consider the issue of whether the state sentencing court violated Garrus‟s constitutional rights by labeling the 1997 second-degree burglary conviction a "crime of violence" for purposes of applying Pennsylvania‟s "three strikes" law.

II.

The District Court had jurisdiction to consider Garrus‟s habeas petition pursuant to 28 U.S.C. § 2254, as the claim raised in the petition has been properly exhausted in the state courts. See Alston v. Redman, 34 F.3d 1237, 1242 (3d Cir. 1994).*fn4 We have jurisdiction to review the District Court‟s judgment pursuant to 28 U.S.C. §§ 1291 and 2253. We exercise de novo review over a District Court‟s denial of habeas relief, Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007), and apply the highly deferential AEDPA standard, which, in this case, precludes us from granting habeas relief unless the challenged state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law[.]" 28 U.S.C. § 2254(d)(1).

III.

Core to a criminal defendant‟s constitutional rights is the principle that "criminal convictions [must] rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995); see also In re Winship, 397 U.S. 358, 364 (1970). In Apprendi, the Supreme Court held that this same right applies to a sentencing factor that would increase a defendant‟s sentence beyond the statutory maximum because, like an element of a separate crime, such a sentencing factor results in a higher sentence than that which could be prescribed for the original crime. 530 U.S. at 476, 490.

Thus, there is no "principled basis" for treating such a sentencing factor differently than an element of a crime. Id. at 476. The exception is that a judge can increase the sentence beyond the statutory maximum based on "the fact of a prior conviction" because a prior conviction has already been established through procedural safeguards. Id. at 488- 90; Jones v. United States, 526 U.S. 227, 249 (1999) ("[A] prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.").

These precepts are "rooted in longstanding common- law practice[.]" Cunningham v. California, 549 U.S. 270, 281 (2007). Apprendi recounted their historical context, noting that early on in our history, judges had "very little explicit discretion in sentencing." 530 U.S. at 479. Any "circumstances mandating a particular punishment" had to be charged to the jury in the indictment; there was "[no] distinction between an element‟ of a felony offense and a sentencing factor[.]‟" Id. at 478, 480. In the 19th century, this idea began to shift, "from statutes providing fixed-term sentences to those providing judges discretion within a permissible range[.]" Id. at 481. Crucially, this shift "has been regularly accompanied by the qualification that [such judicial] discretion was bound by the range of sentencing options prescribed by the legislature." Id.

By the late 20th century, the Supreme Court began to address state laws that increased a defendant‟s punishment based on factors found at sentencing, rather than based on factors found at trial. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Supreme Court, "for the first time, coined the term sentencing factor‟ to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge." Apprendi, 530 U.S. at 485 (construing McMillan). Consistent with longstanding constitutional principles, McMillan held that a "sentencing factor" must at times be found by a jury because "(1) constitutional limits exist to States‟ authority to define away facts necessary to constitute a criminal offense, and (2) . . . a state scheme that keeps from the jury facts that expos[e] [defendants] to greater or additional punishment,‟ may raise serious constitutional concern[s]." Apprendi, 530 U.S. at 486 (quoting McMillan, 477 U.S. at 85-88) (internal citations omitted).

A decade later, the Supreme Court decided Almendarez-Torres v. United States, 523 U.S. 224, 242-47 (1998), a case in which the defendant was convicted for his presence in the United States after being deported, a violation which normally carried a maximum of two years‟ imprisonment. 523 U.S. at 227. Prior to his initial deportation, Almendarez-Torres was convicted of three aggravated felonies, and according to the sentencing statute, where the original deportation had occurred subsequent to an aggravated felony, the court could impose a maximum sentence of up to twenty years‟ imprisonment. Id. at 227, 229. Almendarez-Torres argued that he could not be subject to more than two years‟ imprisonment, because his indictment had not mentioned his earlier aggravated felony convictions. Id. at 227. Importantly, there was no contention that the defendant had not been convicted of the three aggravated felonies, but only that the fact of his prior convictions should have been included in the indictment and charged to the jury. Id. Thus, Almendarez-Torres had earlier been convicted of the facts necessary for the sentencing enhancement, "pursuant to proceedings with substantial procedural safeguards of their own[.]" Apprendi, 530 U.S. at 488. In other words, by judicially finding that Almendarez-Torres‟s three prior convictions existed, the sentencing judge did not "change a pre-existing definition of a well-established crime, nor . . . evade‟ the Constitution, either by presuming‟ guilt or restructuring‟ the elements of an offense." AlmendarezTorres, 523 U.S. at 246.

The Supreme Court found that the fact of Almendarez- Torres‟s prior convictions did not have to be charged to the jury because the constitutional limitations articulated in McMillan did not apply.*fn5 Almendarez-Torres, 523 U.S. at 228, 242-43. As the Supreme Court later explained in Apprendi: "[b]oth the certainty that procedural safeguards attached to any fact‟ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that fact‟ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact‟ increasing punishment beyond the maximum of the statutory range." 530 U.S. at 488.

A year after Almendarez-Torres, the Supreme Court explained that Almendarez-Torres‟s recidivism exception was permitted because "a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." Jones, 526 U.S. at 249. In Jones, the trial court gave the defendant a sentence beyond the statutory maximum based on a judicial finding that the carjacking offense he was convicted of involved "serious bodily injury." Id. at 230-31. The Supreme Court found that the carjacking statute required a jury, rather than a judge, to determine whether the crime involved "serious bodily injury," citing "grave" constitutional questions that would arise if the statute were to be interpreted otherwise. Id. at 231, 239. Although Jones did not actually reach the constitutional issue, its explanation of Almendarez-Torres and its constitutional discussion were significant, especially given that Apprendi explicitly "confirm[ed] the opinion expressed in Jones[,]" 530 U.S. at 490, that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." 530 U.S. at 476 (quoting Jones, 526 U.S. at 243 n.6).

Against this historical backdrop, the Supreme Court decided Apprendi, where a defendant pled guilty to unlawful possession of a weapon, a second-degree offense punishable by up to ten years‟ imprisonment. Despite the defendant‟s plea and conviction for a second-degree offense, the trial court sentenced him to twelve years‟ imprisonment, a "punishment identical to that . . . provide[d] for crimes of the first degree," based on a judicial finding pursuant to a New Jersey hate crime sentencing enhancement, "that the defendant‟s purpose‟ for unlawfully possessing the weapon was to intimidate‟ his victim on the basis of a particular characteristic the victim possessed." 530 U.S. at 468-69, 471, 491. The Apprendi Court began by stating that "[a]t stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without due process of law,‟ Amdt. 14, and the guarantee that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.]‟" 530 U.S. at 476-77. It then discussed several centuries of precedent, summarizing that a criminal defendant may not be "expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Id. at 482-83.

Apprendi explained that Almendarez-Torres was "at best an exceptional departure from . . . historic practice" and a "limited" and "narrow" exception based on "unique facts[.]" Id. at 487, 488 n.14, 489-90. Twice in its opinion, the Apprendi Court emphasized that Almendarez-Torres was different because "Almendarez-Torres had admitted the three earlier convictions for aggravated felonies[,]" and those prior convictions "had been entered pursuant to proceedings with substantial procedural safeguards of their own[.]" Id. at 488; see also id. (reiterating the same points). Thus, "no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court." Id.

Having explained the historical principles and the Almendarez-Torres exception, the Apprendi Court summarized the law as follows, in the now-famous Apprendi rule:

"[O]ur reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: [I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.‟"

Id. at 490 (quoting Jones, 526 U.S. at 252-53 (Stevens, J., concurring); citing id. at 253 ...


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