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Hubert L. Michael v. John E. Wetzel

November 7, 2012


The opinion of the court was delivered by: (Judge Jones)



Before the Court is a motion to reopen these habeas proceedings under Federal Rule of Civil Procedure 60(b)(6), filed on behalf of Petitioner Hubert L. Michael, a death-sentenced prisoner in the custody of the Pennsylvania Department of Corrections. (Doc. 195.) For the reasons set forth below, the Court will deny the motion because it, in fact, constitutes a second or successive habeas corpus application that has been brought without adherence to AEDPA's mandates, and thus the Court lacks jurisdiction to consider it.


The factual background and procedural history of this case are well known to the parties, and thus need not be discussed at length. What is germane to the Court's discussion here is Petitioner's history of vacillation with regard to his desire to pursue his appeals from his criminal conviction and death sentence.

In 1994, Petitioner pleaded guilty to first-degree murder and kidnaping in the Court of Common Pleas of York County, Pennsylvania. After Petitioner stipulated that there were two aggravating circumstances and no mitigating circumstances, the trial court sentenced Petitioner to death. On automatic direct appeal to the Pennsylvania Supreme Court, Petitioner asked that his conviction and sentence be affirmed. After conducting an independent review of the sufficiency of the evidence, the Pennsylvania Supreme Court affirmed Petitioner's conviction and sentence. Commonwealth v. Michael, 674 A.2d 1044 (Pa. 1996).

In 1996, Petitioner authorized the filing of a counseled petition for post-conviction collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. ANN. §§ 9541-9546. Petitioner's then-counsel, the Federal Community Defender Office, Capital Habeas Unit ("FCDO"), also filed for a stay of execution in this Court.*fn1 (Doc. 1.) On August 22, 1996, the Court issued an Order granting a stay of execution and suspending this habeas case pending the PCRA proceedings. (Doc. 4.)

On January 2, 2001, after Petitioner's state court remedies were exhausted, see Commonwealth v. Michael, 755 A.2d 1274 (Pa. 2000), Petitioner submitted a letter to this Court requesting that no appeals be filed on his behalf. (Doc. 56). In response, Petitioner's FCDO counsel argued that Petitioner was not competent to make such a request. (See Doc. 57.) The Court appointed psychiatrist Robert Wettstein, M.D., to evaluate Petitioner's competency. (See Doc. 80.) The Court also appointed another attorney, Joseph Cosgrove, Esquire, to represent Petitioner due to the potential conflict of interest with the FCDO.*fn2 (See Doc. 102.) On September 26, 2001, the Court held an evidentiary hearing and conducted a colloquy with Petitioner regarding his waiver. (See Doc. 137.) As described by the Court in its March 10, 2004 memorandum and order granting Petitioner's motion to dismiss his habeas petition:

The hearing began with this Court's colloquy of Mr. Michael. His responses to the Court's questions revealed a rational understanding of each inquiry. He acknowledged his right to proceed with this case, and that a possible outcome would be a new trial that could result in an acquittal or a sentence other than death. He also acknowledged that termination of this litigation would provide no assurance of the prompt execution of the death penalty, and that it may take years before he would be executed in any event. He also understood that a moratorium on the death penalty could be imposed, placing his sentence in limbo for a long time. He also understood that, in light of the one-year statute of limitations on habeas corpus cases, a change of mind occurring in the future with respect to pursuit of a collateral attack on his conviction may be time-barred. He confirmed his desire to not be represented by the [FCDO]. He reiterated that he wanted this proceeding terminated. In response to the question as to why he wanted to dismiss counsel and abandon any challenge to his conviction, he explained that he was not opposed to the death penalty. In response to the court's inquiry concerning his written statement to the Pennsylvania Supreme Court that he wanted a decision on the appeal from the denial of his PCRA petition, Mr. Michael said that it was simply his intention to expedite the process. (Doc. 137 at 24) (citations omitted) (emphasis added).

After counsel submitted post-hearing briefing, the Court received several letters from Petitioner regarding his competency to waive his appeals. (See Docs. 128, 130, 132-36.) Several of these letters directly advised the Court of Petitioner's desire to waive his appeal regarding his death sentence and to dismiss his counsel. (See Doc. 133, 135.)

On March 10, 2004, the Court issued an Order granting Petitioner's motion to dismiss his habeas petition, dismissing all counsel on behalf of Petitioner, and closing the case. (Doc. 137.) In that Order, the Court also vacated the stay of execution imposed by the Court's August 22, 1996 Order. (Id.) On April 8, 2004, the FCDO filed a notice of appeal to the United States Court of Appeals for the Third Circuit on behalf of Petitioner. (See Doc. 138.)

Before the Third Circuit Court, Petitioner's apparent conflict with his counsel over his desire to proceed with appeals continued. On April 14, 2004, Petitioner submitted a letter to the Third Circuit Court indicating that he did not wish to proceed with his appeal. See Michael v. Horn, 476 F. App'x 277, 278 (3d Cir. 2011). The Commonwealth subsequently filed a motion to dismiss the appeal. See id. The Third Circuit Court granted the motion to dismiss, but withheld judgment for ten days to give Petitioner an opportunity to decide whether he wished to proceed with the appeal. See id. On May 5, 2004, Petitioner stated that he wished to proceed with the appeal. See id. The Third Circuit Court appointed Mr. Cosgrove and ordered briefing on whether the Court should grant a certificate of appealability. Id. After oral argument, the Third Circuit Court granted a certificate of appealability on the issue of whether this Court violated 21 U.S.C. 848(q)(4)(B)*fn3 in dismissing Petitioner's counsel and, if so, whether the error was harmless.

In the months following the Third Circuit Court's granting of the certificate of appealability, Petitioner again vacillated on whether to proceed with his appeal. See id. In light of Petitioner's vacillation, Dr. Wettstein opined that further evaluation of Petitioner's competency may be necessary. See id. In August 2006, the Third Circuit Court remanded to this Court to again determine Petitioner's competency. Id. Further, the Third Circuit Court instructed this Court that if the Court were to find Petitioner competent, it should ask him the following question: "Do you wish the Court of Appeals to dismiss the appeal taken in your name from the order entered in this Court dismissing the habeas corpus petition filed in your case?" Michael v. Horn, 459 F.3d 411, 420-21 (3d Cir. 2006).

After the case was remanded, Petitioner submitted several letters to the Court, through counsel, indicating his desire to pursue his appeal and to have Mr. Cosgrove represent him. (Docs. 172, 174, 180, 187.) Dr. Wettstein re-evaluated Petitioner, concluding that Petitioner had "the mental capacity to understand the choice between life and death and can make a knowing and intelligent decision to pursue his further legal remedies." See Michael, 476 F. App'x at 278. Further, at the video conference held by this Court on December 10, 2007, Petitioner, present with his counsel, answered "no" in response to the question of whether he wished the Court of ...

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