United States District Court, W.D. Pennsylvania
DAVID STEWART CERCONE, District Judge.
On August 2, 2013, the petitioner, Gerald Szakal, by his counsel, Noah Geary, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenged his conviction on two counts of second-degree murder, two counts of robbery, one count of theft by unlawful taking, one count of receiving stolen property and two counts of conspiracy to commit robbery and the two concurrent life sentences, without the possibility of parole, imposed by the Court of Common Pleas of Washington County, Pennsylvania on November 25, 2009. On November 5, 2013, United States Magistrate Judge Robert Mitchell filed a Report and Recommendation which recommended that the petition be dismissed and that a certificate of appealability be denied (ECF No. 12).
On November 22, 2013, petitioner's counsel filed objections to the Report and Recommendation (ECF No. 13), in which he contended that the magistrate judge committed both procedural error (by denying him the opportunity to file a brief and a petition for leave to conduct discovery) and substantive error (by failing to address his challenge to a state court decision as being an unreasonable determination of the facts in light of the evidence presented in the state court proceeding). In addition, counsel filed a document titled Petition for Leave of Court to File Document Under Seal (ECF No. 14), in which he requested leave to file under seal an additional document which would provide "additional information in further support of the Petitioner's allegations that the trial Court directed the trial stenographer to tamper with the trial transcripts in the underlying murder trial in this matter." On December 11, 2013, Chief Judge Conti granted the motion for leave to file documents under seal (ECF No. 15) and on January 31, 2014, the petitioner was directed to file such documents by February 7, 2014.
On February 8, 2014, counsel filed a reply to this Court's order, in which he indicates that: "Upon conducting further interviews of the employees referenced in the Petition for Leave, the undersigned determined that the information of the employees referenced therein was not as probative of the tampering allegation as originally represented by the employees." (ECF No. 16 ¶ 3.) Counsel then reiterates the arguments made in the objections and, for the first time, submits (as an exhibit to the reply) a document entitled "Petition for Leave to Conduct Discovery Pursuant to Rule 6 of Federal Rules of Procedure Governing Section 2254 (Habeas Corpus) Cases, " which he contends "the Petitioner was denied the opportunity to file by the Magistrate Judge." (Id. ¶ 14.)
For the reasons that follow, petitioner's objections will be overruled and his submission, even assuming it constituted a motion for leave to conduct discovery, will be dismissed as moot.
In his first objection, petitioner contends that:
The most serious error committed by the [magistrate judge] was in denying the Petitioner his opportunity and his right to have his issues decided on their merits.
Despite a specific reference at paragraph 34 of his application that Petitioner would be filing a petition for leave of court to conduct discovery pursuant to Rule 6, the [magistrate judge] issued an opinion upon receipt of an answer by the Commonwealth and receipt of the state trial record. The Petitioner was denied the opportunity to present the Petition for Leave to Conduct Discovery.
(ECF No. 13 at 6.) The Court notes that paragraph 34 of the petition stated that, "in conjunction with this Application for Writ of Habeas Corpus, the Petitioner is filing a Petition for Leave of Court to conduct discovery pursuant to Rule 6 of the Federal Rules of Procedure governing Section 2254 cases. The Petitioner has good cause to justify the grant of leave to conduct discovery, which is set forth in detail in the corresponding Petition for Leave." (ECF No. 1 ¶ 34.) However, no such motion for leave to conduct discovery was submitted with the petition for writ of habeas corpus, nor has any motion for leave to conduct discovery been filed at any time. As explained below, the "petition" counsel finally has submitted is an exhibit to his reply to this Court's order directing him to submit his sealed documents and is not a separately filed motion. Thus, counsel has misrepresented the procedural history of this case and falsely accused the magistrate judge of denying a motion for leave to conduct discovery that he never filed or "preventing" him from filing a motion that he never sought leave to file. This objection is overruled.
Next, counsel claims that the magistrate judge:
inexplicably chastised both parties for not citing Federal law in their Briefs. Yet, neither party even filed Briefs. They never had the opportunity. The [magistrate judge] drafted [his] opinion upon the close of the pleadings. Petitioner explicitly indicated that it would be filing a Brief at paragraph 62 of his Application. Petitioner was denied his opportunity and his right to litigate his issues.
(ECF No. 13 at 6.) Again, however, counsel has misconstrued the record and in addition has not adhered to the Federal Rules of Civil Procedure. Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts states that: "The answer must address the allegations in the petition. In addition, it must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations." Rule 5(b). Thus, the answer submitted by the respondent is a brief. There is no other provision for a brief on behalf of the respondent.
With respect to the petitioner, it is true that the petition stated that "The Superior Court decision was contrary to and involved unreasonable application of clearly-established Federal law relating to abuses of discretion by trial judges in denying mistrial motions and in giving erroneous jury instructions, which will be briefed in detail by the Petitioner." (ECF No. 1 ¶ 62.) However, the petition, which was filed on August 2, 2013 and was 26 pages long, also contained legal argument (albeit not citing any federal law) and petitioner never submitted a separate brief. Respondents filed an answer on October 9, 2013 (ECF No.9), yet petitioner never submitted a reply brief, nor did he request permission to do so. After the Report and Recommendation was filed on November 5, 2013, petitioner did not file a motion for reconsideration, nor did he make any attempt to file a brief. He has not even submitted a brief as part of his objections.
Moreover-and contrary to the assertion made by counsel-the Report and Recommendation addressed on the merits all of the claims made in the petition. The magistrate judge frequently and properly cited the extremely thorough published opinion of the Pennsylvania Superior Court, Commonwealth v. Szakal , 50 A.3d 210 (Pa.Super. 2012). The Superior Court reviewed at length petitioner's allegations that the trial court: improperly denied his motion for a mistrial based upon an incident during jury selection when a member of the venire who was annoyed with the wait made an outburst that the petitioner was guilty; erred in denying his motion for a mistrial following an incident where a Commonwealth witness spoke directly to jurors during a court recess (including his contention that the trial court "moved" counsel's motion for a mistrial to a later portion of the proceeding, "which enabled the trial judge to dismiss the mistrial motion as being untimely made"); erred in denying his motion for a mistrial following certain comments made during the prosecutor's closing arguments (including his contentions that the trial court "moved" counsel's motion for a mistrial to a later portion of the proceeding, "which enabled the trial judge to dismiss this mistrial motion as being untimely made, " and that, despite a curative instruction given by the trial court, a juror came forward after the verdict and produced a "sworn affidavit" that the jury disregarded the instruction during its deliberations, which it declined to credit under the "no impeachment rule" contained in Pennsylvania Rule of Evidence 606(b)); and erred in giving an incomplete and misleading jury instruction regarding unanimity of the verdict in response to a ...