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Tucker v. Wenerowicz

United States District Court, E.D. Pennsylvania

April 9, 2015

TERRANCE TUCKER, Petitioner
v.
MIKE WENEROWICZ, SUPERINTENDENT, Respondent

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Petitioner: ARIANNA J. FREEMAN, ESQUIRE.

For Respondent: MOLLY SELZER LORBER, ESQUIRE.

OPINION

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James Knoll Gardner, United States District Judge.

TABLE OF CONTENTS

Page

SUMMARY OF DECISION

FACTUAL & PROCEDURAL BACKGROUND

Conviction and Sentence

Underlying Offense

State-Court Appellate Proceedings

Federal Proceeding

Petition and Response

Report and Recommendation and Objections by Petitioner Pro Se

Counseled Objections

STANDARD OF REVIEW

" Contrary To"

" Unreasonable Application"

Factual Determinations

DISCUSSION

Petitioner's Claims

Ground One: Ineffective Assistance of Direct-Appeal Counsel

State-Court Treatment of Trial Closure Question

Subsequent History of Superior Court's Opinion in Constant

Refusal to Apply Waller

Application of Waller

Unreasonableness of Strickland Application

Remedy

Ground Two: Ineffective Assistance of Trial Counsel

CONCLUSION

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SUMMARY OF DECISION

Petitioner Terrance Tucker seeks federal habeas corpus relief from his Pennsylvania state-court conviction for Murder of the third degree, and related offenses, arising from the February 10, 2002 shooting death of Mikal Scott in Philadelphia, Pennsylvania.

For the reasons expressed below, I decline to adopt the magistrate judge's Report and Recommendation as it pertains to the first ground for relief asserted by petitioner. Instead, I grant petitioner's request for habeas corpus relief on his first claim. I do so because I agree with petitioner that his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution was violated by the failure of his direct-appeal counsel to raise the clearly meritorious claim that the trial court's closure of the courtroom to the public for the entirety of the trial violated petitioner's right to a public trial also guaranteed by the Sixth Amendment to the United States Constitution.

Specifically, petitioner is entitled to federal habeas corpus relief because the state courts' rejection of that ineffective-assistance claim is based on an objectively unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), vis-a'-vis Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Put differently, the Pennsylvania state courts identified the appropriate legal principle governing petitioner's ineffective-assistance-of-appellate-counsel claim (the Strickland standard) but applied that principle in an objectively unreasonable manner based on the record in this case.

Here, the Pennsylvania courts disposed of petitioner's ineffective-assistance-of-appellate-counsel claim on prong one of the Strickland framework based on the state courts' conclusion that petitioner's underlying Sixth-Amendment public-trial claim was meritless and, thus, appellate counsel's failure to raise that claim on direct appeal could not be deemed deficient for Strickland purposes.

The Superior Court of Pennsylvania on collateral appeal under Pennsylvania's Post-Conviction Relief Act (" PCRA" )[1] concluded that petitioner's underlying Sixth-Amendment public-trial claim was meritless. That conclusion rested on the Superior Court's explicit refusal to apply then-existing, binding precedent from the United States Supreme Court governing Sixth-Amendment public-trial claims (that is, Waller). Instead, the Superior Court applied its own precedent which imposed a less-demanding standard to justify courtroom closures than that mandated by the Sixth Amendment to the United States Constitution.

The state courtroom closure here began after the parties' opening statements and continued through the end of closing arguments. That closure was a plain violation of Waller. A Sixth-Amendment public-trial violation is a structural defect in the proceedings. The remedy for such a violation is a new trial.

If appellate counsel had raised the properly-preserved and clearly-meritorious Sixth-Amendment public-trial claim on direct appeal and if the Superior Court of Pennsylvania had applied Waller to that claim, defendant would have been entitled to a new trial. Because appellate counsel did not do so, petitioner was deprived of effective assistance of appellate counsel.

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Petitioner was prejudiced by that deprivation because it deprived him of a new trial. The Pennsylvania courts' denial of petitioner's ineffective-assistance-of-appellate-counsel claim was based on an unreasonable application of Strickland. Therefore, petitioner is entitled to habeas corpus relief.

Because the underlying violation was a violation of petitioner's Sixth-Amendment public-trial right, it represents structural error and, as such, entitles petitioner to a new trial.

FACTUAL & PROCEDURAL BACKGROUND

Conviction and Sentence

On November 9, 2003, after a three-day trial in the Court of Common Pleas of Philadelphia County, Pennsylvania, a jury found petitioner Terrance Tucker guilty of one count of Murder of the third degree[2], one count of Recklessly endangering another person[3], one count of Criminal conspiracy[4], and one count of Possessing instruments of crime.[5]

On January 13, 2004 petitioner was sentenced by the trial judge, Honorable René e Cardwell Hughes, to a term of not less than twenty, nor more than forty, years imprisonment on the third-degree murder charge; and a term of not less than ten, nor more than twenty, years imprisonment on the conspiracy charge. Judge Hughes imposed those terms of imprisonment to run consecutively, resulting in a total term of not less than thirty, nor more than sixty, years imprisonment. Petitioner received no further penalty for the charges of Recklessly endangering another person and Possessing instruments of crime.[6]

Underlying Offense

As stated by trial court in its May 4, 2005 Opinion issued pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, and quoted by the Superior Court of Pennsylvania in its Memorandum filed June 20, 2006 affirming petitioner's conviction and sentence on direct appeal, the facts underlying petitioner's conviction are as follows:

On March 30, 2000, there were two shootings in the areas of 25th and Norris Streets and 29th and Glenwood Streets in the City and County of Philadel-phia. (N.T. 11/13/0[3], pgs. 41-42). Damon Walls, Edward Watts, Marcus 'Naime' Scott, and Rodney Abrams were charged with shooting at and injuring Terrance 'Boo-Boo' Tucker (appellant), Samuel Jones, Terrance Slappy, and Gary Corbett. (N.T. 11/13/0[3], pgs. 44-45). Appellant was arrested that evening for possess-ion of a weapon and for firing back at Walls and Watts. (N.T. 11/13/0[3], p. 43). On March 31, 2000, Mikal Scott (decedent) was driving Isa Muhammed and Kaamil Jones when Damon Walls, Marcus Scott, and Edward Watts gunned down Isa Muhammed in the area of 26th and Master Streets in the City and County of Philadelphia. (N.T. 11/13/0[3], pgs. 53-76). Detective Marlena Mosely investigated the case and received information from Mikal Scott, an eyewitness to [the] shootings. Id. at p. 55. Subsequently, Walls and Watts are arrested for both cases. (N.T. 11/13/0[3], pgs. 45-46). Although Mikal Scott testified at the preliminary hearing and the trial of Walls and Watts,

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he denied the statement given to Detective Mosely. (N.T. 11/13/03, p. 60-62). Despite Mr. Scott's recan-tation both Walls and Watts were convicted of the murder of Isa Muhammed. (CP# 0007-1201).

In the early morning hours of February 10, 2002, Mikal Scott went to Anne 'Mookie' Williams' house located at 24th and Stewart Streets, in the City and County of Philadelphia, Pennsylvania. (N.T. 11/12/03, pgs. 109 and 113). Shortly thereafter, appellant, and three other men showed up at Anne Williams' house. (N.T. 11/12/03, p. 114). Mikal Scott went upstairs while the appellant used a cell phone. (N.T. 11/12/03, pgs. 116, 117, and 140). The appellant then stated that he needed to use the bathroom and went upstairs. (N.T. 11/12/03, pgs. 118, 119, 139). Mikal returned downstairs and the appell-ant followed as Mikal stated that he wanted to go home. (N.T. 11/12/03, pgs. 119 and 120). By that time, the men that appellant came to the house with had already left. (N.T. 11/12/03, p. 121). Mikal asked Naima Scott, his sister, to take him home, she said no, but Anne Williams agreed to take him. Tonaysha Austin asked if she could ride along to get some-thing to eat. (N.T. 11/12/03, p. 122). All three left the house for the car where Mikal Scott sat in the front seat and Tonaysha Austin sat in the rear passenger's seat. (N.T. 11/12/03, p. 123). Anne Williams was about to get into the car but was called back to the house. Id. As she was about to return to the car, she immediately stopped and began to retreat to her house as she saw the appellant and another make approaching the car with guns. (N.T. 11/12/03, p. 124). Appellant was wearing a Woolridge jacket [Footnote 1] and the other male wore [a] ski jacket and a tight fitting hat. (N.T. 11/12/03, pgs. 137 and 160). Both men stood at the passenger side of the car and started shooting. Id. Mikal was seriously wounded and wanted to be taken to the hospital. (N.T. 11/12/03, p. 125). There were no keys in the car and Tonaysha Austin did not know how to drive. Id. Once she felt that it was safe to leave the car, she ran to a pay phone on 24th and Jefferson Streets. Anne Williams' daughter spotted Tonaysha running and followed her to the pay phone. (N.T. 11/12/03, p. 126). Ms. Williams' daughter spoke to the police because Tonaysha Austin was too upset. Id. Simulta-neously, Tonaysha Austin observed Anne Williams and Keisha Cotton drive off with Mikal Scott. (N.T. 11/12/03, pgs. 135, 165). They drove him to Hahnemann Hospital. (N.T. 11/12/03, pgs. 139 and 166-169). Mikal Scott was pronounced dead at 9:49 a.m. (N.T. 11/14/03, p. 13).
[Footnote 1] Commonwealth witnesses Tonaysha Austin and Anne Williams described a Woolridge jacket as a jacket that comes to a person's thighs with large pockets and a hood with fur around it. (N.T. 11/12/03, pgs. 137, 160).

Commonwealth of Pennsylvania v. Tucker, No. 618 Eastern District Appeal 2004, Slip Op. at 1-3 (Pa.Super. June 20, 2006)(non-precedential decision)(" Tucker II" ) (quoting Commonwealth of Pennsylvania v. Tucker, No. 1173, May Term 2002, Slip Op. at 8-10 (Phila.C.P. May 4, 2005)(" Tucker I" ))(alterations provided by Superior Court).

State-Court Appellate Proceedings

Petitioner took a direct appeal to the Superior Court of Pennsylvania from his conviction and sentence in the Court of Common Pleas of Philadelphia County. On direct appeal, the Superior Court affirmed

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petitioner's conviction and sentence. See Tucker II, Slip. Op. at 12. The Supreme Court of Pennsylvania denied allocatur on November 15, 2006. See Commonwealth of Pennsylvania v. Tucker, 590 Pa. 660, 911 A.2d 935 (2006)(Table).

Petitioner sought state-court collateral relief pursuant to Pennsylvania's Post-Conviction Relief Act following the completion of his direct appeal in the Pennsylvania courts. The PCRA court appointed petitioner counsel and, ultimately, dismissed the amended PCRA petition filed on petitioner's behalf. Commonwealth of Pennsylvania v. Tucker, No. CP-51-CR-0511731-2002, Slip. Op. at 6 (Phila.C.P. Nov. 5, 2008)(" Tucker III" ).

Petitioner took an appeal to the Superior Court of Pennsylvania from the PCRA court's dismissal of his amended petition for post-conviction relief. The Superior Court affirmed the PCRA court's dismissal of petitioner's amended petition for post-conviction relief. Commonwealth of Pennsylvania v. Tucker, No. 3224 EDA 2008, Slip. Op., at 14 (Pa.Super. Mar. 30, 2010)(non-precedential decision) (" Tucker IV" ).

Petitioner sought discretionary review in the Supreme Court of Pennsylvania of the PCRA appeal court's denial of his petition for post-conviction relief. The Supreme Court of Pennsylvania denied petitioner's allocatur request. Commonwealth of Pennsylvania v. Tucker, 608 Pa. 622, 8 A.3d 345 (Sept. 24, 2010)(Table).

Federal Proceeding

Petition and Response

On February 9, 2011, following completion of his Pennsylvania state-court collateral appeal proceedings, petitioner Terrance Tucker pro se timely filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (" Petition" ), which initiated this action.[7] He filed a Petition for Appointment of Counsel on March 1, 2011.

On July 11, 2011, respondent Michael Wenerowicz, Superintendent of State Correctional Institution -- Graterford, filed his Response to Petition for Writ of Habeas Corpus (" Response" ).[8] Petitioner filed a Traverse on July 26, 2011.[9]

Report and Recommendation and Objections by Petitioner Pro Se

On September 28, 2011, United States Magistrate Judge Timothy R. Rice issued a Report and Recommendation[10] which recommended that that the Petition be denied. Petitioner pro se filed objections[11] to the Report and Recommendation on October 13, 2011.

On May 9, 2012 petitioner pro se filed a motion[12] to amend his Petition to add an unexhausted claim of ineffective assistance

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of counsel relating to his trial counsel's performance or, in the alternative, to stay this proceeding while he exhausted that proposed claim in the Pennsylvania courts. I denied the motion to amend or stay by, and for the reasons expressed in, my footnoted Order dated and filed March 29, 2013.[13]

On May 3, 2013 petitioner pro se filed a motion for reconsideration[14] of the denial of his prior motion to amend or stay. Petitioner's motion for reconsideration was denied by, and for the reasons expressed in, my footnoted Order dated and filed March 31, 2014.[15]

On July 1, 2013, petitioner pro se filed a Supple-mental Petition.[16] The Supplemental Petition does not seek to assert an additional ground for relief. Rather, it is in the nature of a brief concerning supplemental legal authority in further support of petitioner's claim of ineffective assistance on the part of his direct appeal counsel for failing to preserve the federal constitutional claim that the trial court's closure of the courtroom for the remainder of trial immediately after opening statements violated petitioner's Sixth-Amendment public-trial right.

Counseled Objections

By Order dated and filed March 31, 2014,[17] I appointed the Federal Community Defender Office for the Eastern District of Pennsylvania to represent petitioner and scheduled oral argument.

Petitioner's Counseled Objections to the Magistrate Judge's Report and Recommendation were filed on May 21, 2014 (" Counseled Objections" ).[18] Respondent filed a Response to Petitioner's Counseled Objections to the Magistrate Judge's Report and Recommendation on June 2, 2014 (" Response to Counseled Objections" ).[19]

Oral argument was held before me on June 19, 2014.[20] At the close of the argument, I took the matter under advisement.

Hence this Opinion.

STANDARD OF REVIEW

In describing the role of federal habeas corpus proceedings, the Supreme Court of the United States, in Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 77 L.Ed.2d 1090, 1100 (1983), noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence. ... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 (" AEDPA" ), which further " modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court ...


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