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Colon v. Rozum

United States District Court, Third Circuit

January 7, 2014

FRANKLIN COLON
v.
GERALD ROZUM, et al.

MEMORANDUM

STEWART DALZELL, J.

Franklin Colon (“Colon” or “petitioner”) is a prisoner at the State Correctional Facility at Forest, in Forest County, Pennsylvania. He filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his custody. The Hon. Linda K. Caracappa, to whom the matter was referred for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B). Judge Caracappa recommended denial of the habeas petition and Colon raised three objections. For the reasons that follow, we will sustain Colon’s objection regarding denial of his Confrontation Clause rights and issue a conditional writ of habeas corpus to free petitioner from custody until his retrial, if any, by the Commonwealth.

I. Factual and Procedural Background

On the evening of October 29, 2001, three men drove to the Lehigh Valley Mall and parked in an isolated area reserved for Macy’s employees. Tr. at 72. Colon, the driver, turned off the engine and stayed in the car, listening to the radio. Gonzalez Stmt. at 77-78. The other two, Eliut Betancourt (“Betancourt”), who was armed with a handgun, and Joey Gonzalez (“Gonzalez”), got out and headed for the entrance to Macy’s, where they loitered for fifteen or twenty minutes. Id. at 4. They then followed an exiting shopper to her car when they tried to carjack her. Trial Ct. Op. at 3. A struggle ensued and two shots rang out, killing the shopper. Id. at 4. Betancourt and Gonzalez ran back to their car and the three men drove off. Id.

A few days later, Betancourt turned himself in and confessed to the crime, leading police to Gonzalez and Colon. Id. Subsequently, Betancourt pleaded guilty in March of 2003 to murder in the first degree, robbery-theft of a motor vehicle, robbery and criminal conspiracy, and was sentenced to life imprisonment. See Colon Am. Pet. at 9. He did not testify against the other two men.

In October of 2002, Gonzalez and Colon were tried together (after Gonzalez’s initial guilty plea aborted a month before) in a jury trial before the Honorable Edward D. Reibman of the Court of Common Pleas of Lehigh County. Report and Recommendation (“R&R”) at 6. Judge Reibman denied Colon’s pre-trial motion to sever. Lehigh County Dkt. pg. 11. Neither defendant testified. Toward the conclusion of trial, the prosecutor read into the record statements each defendant had made earlier to the police, prefaced by the judge's cautionary instruction to the jury that “[a] statement made before trial may be considered as evidence only against the defendant who made that statement.” Tr. at 844. With respect to petitioner’s co-defendant, the judge further instructed the jury, “You must not use the Gonzalez statement in any way against Mr. Colon.” Id. The jury charge included similar limitations. Id. at 1277-1278.

On October 10, 2002, petitioner was found guilty of second-degree murder, robbery and criminal conspiracy to commit robbery. R&R at 1. On November 25, 2002, Colon was sentenced to a term of life imprisonment for second-degree murder, a concurrent term of not less than forty-five months nor more than one hundred and eight months for robbery, and a term of not less than thirty-three months nor more than seventy-two months for criminal conspiracy, to run concurrently with the second-degree murder sentence but consecutive to the sentence for robbery. Id. at 1-2.

On March 7, 2003, the judge denied Colon’s motion for post-sentence relief. Id. at 2. Colon appealed to the Superior Court alleging the trial court erred by: (1) failing to sever his trial from Gonzalez’s trial, either before or after Gonzalez’s aborted guilty plea; (2) admitting Gonzalez’s redacted confession during the joint trial; (3) failing to permit the use at trial of an allegedly exculpatory statement made by Gonzalez during Gonzalez’s aborted guilty plea proceeding; (4) failing to suppress Colon’s statements; and (5) permitting the admission of testimony at trial regarding the use of the murder weapon by Betancourt in another crime several weeks prior to the crime at issue here. Id.

The Superior Court affirmed Colon’s conviction on March 30, 2004 in a published opinion, Commonwealth v. Colon, 846 A.2d 747 (Pa.Super. 2004). The Pennsylvania Supreme Court subsequently denied petitioner’s request for allowance of appeal. R&R at 2.

The procedural history thereafter has little bearing on the habeas petition before us, so we condense it to reflect only that Colon took the steps necessary to exhaust his state remedies as required prior to filing a petition for writ of habeas corpus. On January 10, 2006, Colon filed a petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., and the Court dismissed the counselled PCRA petition on March 11, 2008. Id. Colon filed a notice of appeal to the Superior Court on April 8, 2008, followed by a pro se brief in support of his appeal. Id. With newly-appointed counsel, he filed a PCRA appeal to the Superior Court. Id. On April 7, 2011, the Superior Court affirmed the PCRA dismissal, and counsel did not appeal to the Pennsylvania Supreme Court. Id. at 3.

Colon filed the instant petition on June 6, 2011 in the United States District Court for the Western District of Pennsylvania, and it was transferred to this District on June 15, 2011.[1] Id. Counsel for petitioner sought and was granted a stay of this petition in order to exhaust petitioner's state-court remedies. Id. The Pennsylvania Supreme Court denied Colon’s petition for allowance of appeal on December 12, 2012, and Colon petitioned to have the stay lifted on the habeas petition. Id. Judge Caracappa also on January 9, 2013 granted Colon leave to amend his habeas petition. Id.

Colon’s amended habeas petition raised four claims: (1) the trial court erred in not admitting Gonzalez’s allegedly exculpatory statements made during his aborted guilty plea proceeding; (2) the trial court erred in not suppressing Colon’s statements made during his interrogation -- a claim he subsequently abandoned, see dkt. no. 21 at 11; (3) the trial court erred in not granting severance which denied him a fair trial and his right to confrontation; and (4) trial counsel was ineffective for failing to properly object to evidence -- introduced through Gonzalez’s statement -- that Betancourt had several weeks earlier shot someone. See Supp. to Pet., Dkt. no 13.

On October 31, 2013 Judge Caracappa issued a Report recommending denial of Colon’s habeas petition. On November 13, 2013, Colon timely filed three objections to Judge Caracappa’s Report and Recommendation.

For the reasons set forth below, we will sustain Colon’s Confrontation Clause objection and overrule his other two objections.

II. Standard of Review

A prisoner may object to the conclusion of a Magistrate Judge’s report and recommendation within fourteen days of being served. 28 U.S.C. § 636(b)(1)(C); Local R. Civ. P. 72.1 (IV)(b). We must then “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made [and] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge, ” 28 U.S.C. § 636(b)(1)(C); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts must afford considerable deference to state court decisions and may grant an application for a writ of habeas corpus “on behalf of a person in custody pursuant to the judgment of a State court” only if that state-court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The Supreme Court of the United States has defined clearly established law as “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

In Williams v. Taylor, 529 U.S. 362 (2000), Justice O’Connor delineated for the Court the degree of deference that § 2254(d)(1) demands, i.e., a state court decision is “contrary to” clearly established federal law only if “the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts, ” and a decision involves an “unreasonable application” of clearly established federal law if “the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 412-13. In short, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable”, id. at 411.

As the Supreme Court explained four years later,

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. . . . As a result, evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Outside of the review § 2254(d) describes, pre-AEDPA law held that federal courts are without the power to review a state court’s interpretation of state law. The Supreme Court emphasized that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

III. Discussion

A. Colon’s Confrontation Rights and His Co-defendant’s Redacted Statement

In his third objection to Judge Caracappa’s report, Colon took issue with her conclusion that the trial court did not err in failing to sever his trial because his codefendant Gonzalez’s statement was properly redacted and therefore did not violate Colon’s constitutional right to confrontation. Colon Obj. at 23. Specifically, Colon objected to Judge Caracappa’s conclusion that the redaction of Gonzalez’s statement and the limiting jury instruction sufficed to avoid a violation of his confrontation rights. Id. at 24.

The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him.” U.S. Const. Amend. VI, cl.5. Colon’s entire defense at trial rested on a claim that he had no prior knowledge of Betancourt’s intent to commit an armed robbery, see Tr. at 1210, although he admitted driving the others to the mall and waiting for them in the car with the engine turned off (indeed, one prosecution witness supported his statement to police that he did not leave the car and that there was no one else in the car with him). Id. at 1210. Therefore, the ultimate issue for Colon at trial was what he knew and when he knew it.

Neither Colon nor Gonzalez testified. In a mid-trial hearing about each defendant’s prior statements to police, held outside the jury's presence, the judge overruled both defendants’ lawyers' objections that portions of each defendant’s statement violated the Confrontation Clause by implicating the other defendant. The judge held there was no confrontation-right violation because both statements were redacted, see Tr. at 736-780. Specifically, Gonzalez’s statement was redacted by replacing Colon’s name with the words “another person” or, more often, “the other person, ” Colon, 846 A.2d at 752 (emphasis added); see also Gonzalez Stmt. Passim. Toward the end of the trial, Detective Procanyn read co-defendant Gonzalez’s entire 95-page statement into the record. Tr. at 846, 857. As to the existence of an accord between the co-defendants before the crime, that statement included the following exchange:

D.A. Martin: Ah, the group of you go up there, why did you ...

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