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Spann v. Shannon

United States District Court, Third Circuit

July 29, 2013

PETER SPANN, Petitioner,
ROBERT SHANNON, et al., Respondents.


EDUARDO C. ROBRENO, District Judge.

Peter Spann (Petitioner) filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Habeas Petition) challenging his custody. Petitioner is currently incarcerated at the State Correctional Institution-Frackville in Pennsylvania. Magistrate Judge Angell, determining the Habeas Petition to be a mixed petition, recommended that it be denied and dismissed without prejudice for Petitioner's failure to exhaust state-court remedies. Both parties filed objections. For the reasons that follow, the Court will overrule Petitioner's objections, sustain Respondents' objections, and deny and dismiss the Habeas Petition with prejudice.


Petitioner is currently serving a mandatory life sentence and a concurrent term of ten to twenty years of imprisonment based on convictions of second-degree murder, possession of an instrument of crime, and criminal conspiracy in the Court of Common Pleas of Philadelphia County. Commonwealth v. Spann, No. 379 EDA 2004, slip op. at 1-3 (Pa. Super. Ct. Oct. 7, 2005). Petitioner filed a timely appeal following his conviction, and the Superior Court of Pennsylvania affirmed the lower court's judgment. Commonwealth v. Spann , 889 A.2d 119 (Pa. Super. Ct. 2005). Petitioner then appealed to the Supreme Court of Pennsylvania. Petition for Allowance of Appeal at 3, Commonwealth v. Spann, No. 634 EAL (Pa. Oct. 31, 2005). On December 28, 2005, the Supreme Court of Pennsylvania denied discretionary review. Commonwealth v. Spann , 8941 A.2d 732 (Pa. 2005).

On September 18, 2006, Petitioner filed a timely collateral appeal pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). Motion for Post Conviction Collateral Relief, Commonwealth v. Spann, No. CP-51-CR-0909971-2002 (Ct. Com. Pl. Phila. Cnty. Sept. 18, 2006). Post-conviction counsel was subsequently appointed, and Petitioner filed an amended petition. Memorandum of Law in Support of Petitioner's First Amended PCRA Petition at 2, Spann, No. CP-51-CR-0909971-2002. In his amended PCRA petition, Petitioner argued that his trial counsel "was ineffective for failing to properly preserve the issue of reversible error in the showing of a gruesome inflammatory autopsy photo of the deceased." Id . On August 9, 2010, the PCRA Court granted the PCRA petition without a hearing, vacated his sentence, and ordered a new trial. Spann, No. CP-51-CR-0909971-2002. The Commonwealth appealed, and the Superior Court of Pennsylvania reversed the PCRA Court. Commonwealth v. Spann, No. 1369 EDA 2010, at 8 (Pa. Super. Ct. July 13, 2011). Petitioner appealed to the Supreme Court of Pennsylvania, raising two issues: "Whether the fact that the PCRA court did not see all of the photographs in question was not determinative" and "Whether the Commonwealth presented overwhelming evidence of the [petitioner's] guilt at trial." Petition for Allowance of Appeal at 1, Commonwealth v. Spann, No. 577 EAL 2011 (Pa. Oct. 3, 2011). On March 29, 2012, the Pennsylvania Supreme Court declined to review the lower court's decision. Commonwealth v. Spann , 42 A.3d 293 (Pa. 2012).

On June 4, 2012, Petitioner filed a second PCRA petition, raising the issue of ineffective assistance of his PCRA counsel. Post Conviction Relief Act Petition at 3, Spann, No. CP-51-CR-0909971-2002. In that petition, Petitioner listed several grounds regarding his trial counsel's ineffectiveness that he argued his PCRA counsel should have addressed during Petitioner's collateral review of his sentence. Id . The PCRA Court recently indicated its intent to dismiss Petitioner's second petition as untimely. Notice of Intent to Dismiss, Apr. 22, 2013, ECF No. 16.

On July 13, 2012, Petitioner filed the instant pro se Habeas Petition that alleges claims of ineffective assistance of trial counsel and insufficient evidence for conviction. Habeas Pet. ¶ 12. Upon referral, Magistrate Judge Angell submitted her Report and Recommendation, recommending that the Habeas Petition be dismissed without prejudice. Report & Recommendation 9, ECF No. 14 [hereinafter R&R]. Petitioner and Respondents objected, and the matter is now ripe for disposition.


The Court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. Section 2254 R. 10; see also 28 U.S.C. § 636(b)(1)(B) (2006 & Supp. V 2011). Parties may object to the magistrate judge's report and recommendation within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court does not review general objections. See Brown v. Astrue , 649 F.3d 193, 195 (3d Cir. 2011) ("We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific." (internal quotation marks omitted)). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id . Therefore, the Court will conduct a de novo review of those portions of the Report and Recommendation to which the parties object.

On habeas review, the Court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d) (2006).


The Habeas Petition presents three claims: (1) ineffective assistance of trial counsel in failing to timely object to three unfairly prejudicial autopsy photos displayed to the jury; (2) insufficient evidence on which to convict Petitioner; and (3) ineffective assistance of trial counsel in failing to object to various other evidentiary matters. Habeas Pet. ¶ 12.

In her Report and Recommendation, Magistrate Judge Angell determined that the Habeas Petition is a mixed petition that includes both exhausted and unexhausted claims. She also determined that there was no reason to stay the case pending exhaustion of the unexhausted claims because Petitioner failed to demonstrate good cause to do so. She therefore recommends that the Habeas Petition be dismissed without prejudice so that Petitioner's second PCRA petition may be disposed of in state collateral proceedings with the presumption that Petitioner can re-file the Habeas Petition after that time.

In their objections, Petitioner and Respondents agree that dismissing the Habeas Petition without prejudice would, in reality, serve as a dismissal with prejudice because any subsequent federal habeas petition would be time-barred. Respondents further argue that the Habeas Petition should be dismissed with prejudice in its entirety because Petitioner's first ineffective-assistance-of-counsel was reasonably denied by the state courts, the insufficient-evidence claim "was a combination of a non-cognizable claim and one that had reasonably been denied by state courts, " and the second ineffective-assistance of counsel claim is procedurally defaulted. Resp.'s Objections 4, ECF No. 15. Petitioner requests a stay and abeyance so that he can preserve his federal action while returning to state court to exhaust his unexhausted claims. Pet'r's Objections 5, ECF No. 17.

After reviewing the applicable statutes of limitations, exhaustion requirements, and procedural-default exceptions, the Court finds that Petitioner's insufficient-evidence claim and second ineffective-assistance-of-counsel claim are procedurally defaulted, and Petitioner's ineffectiveness claim regarding the autopsy ...

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