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Ricciardi v. Lane

United States District Court, W.D. Pennsylvania

July 19, 2017

PERRY S. RICCIARDI, II, Petitioner,
v.
JAY LANE, et al., Respondents.

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Judge

         On March 8, 2016, petitioner Perry S. Ricciardi, II ("Ricciardi" or "petitioner"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, to challenge his 2003 Pennsylvania conviction and sentence to life imprisonment without possibility of parole. On June 16, 2016, Ricciardi's attorney filed an amended petition. (ECF No. 20). On March 8, 2017, a United States magistrate judge filed a 26-page Report and Recommendation ("R&R"), recommending that the amended petition be denied. (ECF No. 25). The parties were granted a period of time after being served with a copy of the R&R to file written objections, and petitioner filed objections. (ECF No. 28). Although the respondents were permitted to respond, they did not do so.

         In his objections to the R&R, the petitioner contends that: (1) the jury instructions violated his federal due process rights because they relieved the Commonwealth of Pennsylvania of its burden to prove that Ricciardi acted with the specific intent to kill the victim; and (2) his trial counsel was ineffective in failing to call character witnesses, failing to object to the jury instructions regarding the specific intent to kill, and filing a deficient appellate brief.

         Ricciardi challenges to his conviction and sentence were rejected in the Pennsylvania court system on direct appeal and under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-9546 ("PCRA"). Federal court habeas review of state court proceedings is limited. Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), federal courts must give "considerable deference" to the factual findings and legal determinations of the state post-conviction relief court. Branch v. Sweeney, 758 F.3d 226, 232 (3d Cir. 2014); Werts v. Vaughn, 228 F.3d 178, 195-96 (3d Cir. 2000). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a petition for habeas corpus may be granted only if the state court's adjudication of the claim (1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).

         The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000). An "unreasonable" application of federal law requires more than merely an incorrect application of law. A petitioner must show that the state court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). A petitioner's hurdle is high because federal habeas review of state convictions frustrates states' sovereign power to punish offenders, their good-faith attempts to honor constitutional rights, and their interest in repose for concluded litigation. Id.

         1. Due Process

         Ricciardi's challenge to the jury instructions was presented as a state law issue in his direct appeal and as an ineffective assistance of counsel theory in his PCRA proceedings. (R&R at 10). The magistrate judge deemed the federal due process claim exhausted because the PCRA courts addressed the merits of Ricciardi's argument and recommended that Ricciardi's due process claim be denied on the merits. Assuming that the claim is properly exhausted, Ricciardi is not entitled to relief, as explained below.

         A jury instruction violates the due process clause if it "reliev[es] the State of the burden of proof... on the critical question of petitioner's state of mind." Sandstrom v. Montana, 442 U.S. 510, 521 (1979). "[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004). The question is whether the ailing instruction "so infected the entire trial that the resulting conviction violates due process." Id. (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991). An instruction "may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72. A state court's PCRA ruling that the jury instructions are adequate must be given deference under AEDPA. Murray v. Diguglielmo, 591 F.App'x 142, 147 (3d Cir. 2014) (deferring to PCRA court's conclusion that even if first-degree murder instruction in isolation misstated Pennsylvania law, the charge as a whole adequately advised jury of specific intent to kill element). In Bennett v. Wenerowicz, No. CV 13-1203, 2014 WL 11191050, at *11 (E.D. Pa. May 30, 2014), report and recommendation adopted, No. 2013-CV-1203, 2016 WL 1086555 (E.D. Pa. Mar. 21, 2016), the court summarized the two-step burden for a petitioner to obtain habeas relief:

         "First, he must demonstrate that there is a reasonable likelihood that the jury applied the challenged instructions in a way that violated the Constitution by alleviating the Commonwealth's burden to prove every element of first-degree murder beyond a reasonable doubt. Second, in considering his petition, this court must determine whether the state court's determination of the claim was objectively unreasonable, meaning that it was not only erroneous, but also unreasonable." Id. at * 11 (citations omitted).

         Pennsylvania has a special rule of vicarious liability for first-degree murder: a defendant cannot be convicted as an accomplice or conspirator unless he has the "specific intent to kill." Coleman v. Superintendent Forest SCI, 613 F.App'x 138, 139 (3d Cir. 2015) (citing Commonwealth v. Speight, 854 A.2d 450, 460 (Pa. 2004)). A Pennsylvania trial court must instruct a jury that it can only find a defendant guilty of first-degree murder as an accomplice or co-conspirator if he possessed the specific intent to kill. Bennett, 2014 WL 11191050, at *4 (citations omitted). If the court's charge to the jury "allowed the jury to find that [the defendant] was an accomplice to first degree murder without finding that he possessed the mens rea required for that offense, then the instructions were constitutionally infirm." Williams v. Beard, 637 F.3d 195, 220 (3d Cir. 2011).

         Ricciardi recognizes that the jury instruction for first degree murder in his case correctly included the "specific intent to kill" element.[1] (Trial Transcript of Feb. 13, 2003 at 229-230). Ricciardi argues, however, that the jury instructions regarding accomplice and co-conspirator liability allowed the jury to convict him without the "specific intent to kill" element. The jury was instructed: "It is the theory of the Commonwealth that the Defendant did not commit the actual act that killed [S.K.] but did so as an accomplice and/or as a coconspirator." Id. at 227.

         The accomplice instruction stated that "You may find the defendant guilty of a crime on the theory that he was an accomplice and as long as you're satisfied beyond a reasonable doubt that the crime was committed and that the Defendant was an accomplice of the person who committed it." Id. at 225-226 (emphasis added). The conspiracy instruction provided: "You may find the Defendant guilty of the crimes as a conspirator if you are satisfied beyond a reasonable doubt, first that the Defendant agreed with Billy Monday and David Garvey that he or one or more of them would commit the crimes." Id. at 226 (emphasis added). Ricciardi was charged with, and the jury was instructed on, numerous crimes: first degree murder, second degree murder, third degree murder, conspiracy to commit homicide, conspiracy to commit rape by forcible compulsion, conspiracy to commit rape of a person less than thirteen years old, kidnapping to inflict injury, unlawful restraint, and abuse of a corpse.[2] Ricciardi contends, in essence, that the accomplice and conspiracy instructions did not distinguish first degree murder from the other charges and should have specifically included Pennsylvania's special rule requiring specific intent for first degree murder.

         The trial judge explained to the jury that the charge would be divided into three general areas: (1) general principles of law applicable in all criminal cases; (2) the specific charges and their elements and rules of law specifically relating to this case; and (3) guidelines for deliberations. Trial Tr. at 200. The instructions on accomplice and conspirator liability challenged by Ricciardi are in the "general principles of law" section of the charge. It is clear, in context, that the trial judge was explaining the general rules governing accomplice and conspirator liability "before I get to the specific crimes." Id. at 224-225. When instructing the jury on the specific elements of the crimes charged, the trial judge identified the elements of first degree, second degree and third degree murder, all of which were on the verdict slip. The jury was instructed: "You have the right to bring in a verdict finding the Defendant guilty or finding him not guilty of one of these three types of criminal homicides." Id. at 240. As noted above, the first degree murder instruction required defendant to have a specific intent to kill. The trial judge included a thorough explanation of the "specific intent to kill" element. Id. at 229-230. There was no reference to accomplice or coconspirator liability in the first degree murder instruction.

         The jury was then instructed on the elements of second degree murder, which did include accomplice and co-conspirator liability. The elements were: "First, that Billy Monday and/or David Garvey killed or caused the death of [S.K.]; Second, that Billy Monday and/or David Garvey did so while they and Defendant were partners in the kidnapping and/or rape of the victim; Third, that Billy Monday and/or David Garvey did the act that killed or caused the death of the victim in furtherance of the kidnapping and/or rape; and fourth, that Defendant was acting with malice." Id. at 232. The trial judge revisited the concepts of accomplice and conspirator ...


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