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Romansky v. Superintendent Greene SCI

United States Court of Appeals, Third Circuit

August 8, 2019

STEVEN L. ROMANSKY, Appellant
v.
SUPERINTENDENT GREENE SCI; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; DISTRICT ATTORNEY OF PIKE COUNTY, PENNSYLVANIA

          Argued March 6, 2019

          Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-09-cv-01472) District Judge: Honorable Sylvia H. Rambo

          Ronnie J. Fischer (Argued) Bugaj Fisher, P.C. Counsel for Appellant

          Josh Shapiro Jennifer C. Selber James P. Barker (Argued) Criminal Law Division Appeals & Legal Service Section Kelly M. Sekula Counsel for Appellees

          Before: SMITH, Chief Judge, AMBRO, and RESTREPO, Circuit Judges

          OPINION

          AMBRO, CIRCUIT JUDGE

         A long time ago a Pennsylvania jury convicted Steven L. Romansky of car theft-related crimes. Over the decades his case wound its way through the Pennsylvania courts and eventually generated this federal habeas corpus petition in the Middle District of Pennsylvania. The District Court denied Romansky's lengthy, multifaceted petition in full and declined to grant a certificate of appealability. We did grant a certificate of appealability as to two claims related to an alleged discrepancy between the charging documents and the jury instructions at Romansky's trial over three decades past. But because we conclude that this petition is not timely as to the undisturbed events at that first trial, and are unpersuaded by his other claims, we affirm.

         I. Background

         One Pennsylvania court described this case as a "procedural quagmire." We have no quibble with that portrayal.

         Steven Romansky came under suspicion in 1985 for his involvement in an auto theft ring in northeastern Pennsylvania. The Commonwealth convened an investigative grand jury, and in May 1985 it issued Presentment No. 33. The Presentment recommended charges against Romansky, among others, that included receiving stolen property under 18 Pa.C.S.A. § 3925, conspiracy under 18 Pa.C.S.A. § 903, removal or falsification of identification numbers under 75 Pa.C.S.A. § 7102(b), dealing in vehicles with removed or falsified numbers under 75 Pa.C.S.A. § 7103(b), dealing in titles and plates for stolen vehicles under 75 Pa.C.S.A. § 7111, and false application for certificate of title or registration under 75 Pa.C.S.A. § 7121. (The presentment stated that it recommended bringing charges "including, but not limited to[, ] the listed offenses.") In late August 1985 the Commonwealth filed a criminal complaint leveling the same slate of charges against Romansky. They included three counts of each offense (except false application for certificate of title or registration), with each count pertaining to a different vehicle: a 1977 Pontiac Trans-Am Firebird, a 1979 Ford Bronco, and a 1977 GMC truck.

         As the proceedings continued, the substantive offenses remained intact, but the conspiracy charges changed. At a preliminary hearing in September 1985, two of the three conspiracy counts were dismissed, and notes from the hearing indicate that the remaining count-dealing with the Pontiac- was amended to conspiracy to receive stolen property. In December 1985, however, a criminal information formally charged Romansky with conspiracy to commit dealing in vehicles with removed or falsified identification numbers and/or theft. This information was the operative charging document at the time of trial.

         In May 1987 the case proceeded to trial on the conspiracy charge for the Pontiac and on the substantive charges for all three cars. The jury acquitted Romanksy as to each charge relating to the GMC truck, but convicted on most others dealing with the Pontiac and the Bronco. Importantly for our purposes, he was convicted on the conspiracy charge, which the jury instructions described as "conspiracy to deal in vehicles with removed or falsified numbers and/or theft." In explaining the elements of this charge, however, the trial judge omitted the "and/or theft" component and stated only that the jury had to find that the defendant entered into an agreement with others to deal in vehicles with removed or falsified numbers. The verdict form indicated only that the jury found Romansky guilty of "conspiracy" with no elaboration.

         Romansky's sentence in 1987 was 9 to 18 years' total incarceration, including 2 to 4 years on the conspiracy charge. He appealed in state court, unsuccessfully, and then brought a state post-conviction claim. Among other things, he alleged that the evidence was insufficient to show conspiracy to deal in vehicles with removed or falsified numbers; and in responding to this argument the Commonwealth noted that the charge had been changed to conspiracy to receive stolen property.

         Ten years after the trial, the Pennsylvania Superior Court ultimately ruled that the Commonwealth had unlawfully used false testimony and therefore vacated Romansky's convictions as to the Bronco, but not as to the Pontiac-and therefore not including the conspiracy charge as to the latter. Romansky was retried on the vacated charges in January 2000, again resulting in conviction on all of those counts. Two months later he received the same sentence on each of the counts as in 1987-9 to 18 years in total, including 2 to 4 years on the conspiracy charge. Romansky later testified that he mentioned the discrepancy about the conspiracy charge to his counsel prior to his resentencing, and then asked to file a motion on the issue after the sentencing, but that his counsel did not raise the issue at any time.

         After resentencing, Romansky filed another direct appeal, and the Superior Court affirmed in June 2001. He did not seek allowance of appeal from the Pennsylvania Supreme Court. Instead, he filed another state post-conviction petition in April 2001, while his direct appeal was still pending, as well as several addenda to the petition in April a year later. The post-conviction court dismissed the petition in June 2002, but the Superior Court vacated that order in September 2003, remanding with instructions to allow Romansky's newly appointed counsel to review the petition and ...


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