Tag Archives: Habeas corpus opinions

New opinion

Piasecki v. Bucks County Court — habeas — reversal — McKee

[Disclosure: as explained below, I assisted Peter Goldberger in representing the petitioner-appellant in this appeal.]

For a federal court to consider a habeas petition, the petitioner must be “in custody” at the time the petition is filed. Past cases have found custody to include parole restrictions, own-recognizance release pending appeal, and community service obligations. Today, the Third Circuit held that the requirements that come with registration under Pennsylvania’s Sex Offender Registration and Notification Act satisfy the habeas custody requirement because SORNA restricts registrants’ physical liberty in various ways, including banning computer internet access and requiring them to appear frequently at a state police barracks, in person. The court distinguished rulings from other Circuits involving other, less-restrictive sex-offender-registry statutes.

In an interesting footnote, the opinion focused more deeply on the condition banning computer internet access and observed that computer and internet bans are common, “Yet it is not at all clear that the judges imposing such sweeping  and unconditional bans appreciate the impact they would have if literally interpreted and enforced,” barring things like using an ATM, having a smartphone, navigating by GPS, or simply driving a late-model car. It noted with a lengthy stringcite that “many courts have struck down statutes or vacated sentences that impose broad bans on computer and internet usage.”

Joining McKee were Ambro and Restrepo. Arguing counsel were Stephen Harris of the Bucks County district attorney’s office for the Commonwealth and me for the petitioner — I had the privilege of arguing in place of Mr. Piasecki’s counsel, Peter Goldberger, who wrote the briefs, because he was out of state attending to a compelling family matter.

Two new opinions, including Workman

Workman v. Superintendent — habeas corpus — reversal — Fuentes

In an amended opinion, the Third Circuit today held that a habeas petitioner had shown that his trial counsel provided ineffective assistance of counsel by failing to mount a defense and, while that issue was procedurally defaulted, his post-conviction counsel’s ineffectiveness excused the default. [As I’ve disclosed in prior posts about this case, I did some minor consulting for petitioner’s counsel.]

In the court’s original opinion (and again in an amended one that it also later withdrew) the panel had presumed prejudice from trial counsel’s errors under US v. Cronic, but today the court held that the petitioner had shown prejudice under Strickland v. Washington. I wrote that the prior amended opinion was “puzzling” and that “something seems not quite right here,” and urged readers to stay tuned, so today’s ruling isn’t surprising and strikes me as substantially sounder than the previous ones. So, all’s well that ends well.

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA FD for the petitioner and Catherine Kiefer of the Philly DA’s office for the superintendent.

 

Patterson v. Pa. Liquor Control Board — civil — affirmance — Restrepo

The Third Circuit held that the Pennsylvania Liquor Control Board is an arm of the state (arm of the Commonwealth?) entitled to Eleventh Amendment sovereign immunity, affirming dismissal of a former employee’s civil rights suit against it.

Joining Restrepo were Greenaway and Bibas. Arguing counsel were Charles Sipio of Kolman Ely for the former employee and Claudia Tesoro of the PA Attorney General’s office for the LCB.

Three new opinions [updated]

Update: on October 30 the panel granted the Commonwealth’s petition for panel rehearing and vacated the original opinion, with a new opinion and judgment to come.

Workman v. Superintendent — habeas corpus — reversal — Fuentes

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that his trial counsel was ineffective for failing almost entirely to mount a defense and that post-conviction counsel’s ineffectiveness excused default of that issue under Martinez v. Ryan. Notably, the court held that the petitioner did not need to prove prejudice from his counsel’s error because, under United States v. Cronic, prejudice was presumed due to counsel’s near-total failure to contest the prosecution’s case.

[Disclosure: I provided minor consulting assistance to counsel for the petitioner.]

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA defender for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

 

US v. Renteria — criminal — affirmance — Fuentes

The Third Circuit today split with the Second Circuit in holding that venue for a conspiracy conviction does not require proof that it was reasonably foreseeable that conduct in furtherance of the conspiracy would occur in the venue district, affirming a defendant’s conviction and sentence.

[Disclosure: I assisted counsel for the defendant by being a judge for her oral argument moot.]

Joining Fuentes were Greenaway and Rendell. Arguing counsel were Susan Lin of Kairys Rudovsky for the defendant and Bernadette McKeon of the EDPA U.S. Attorney’s office for the government.

 

 

Trinity Industries v. Greenlease Holding Co. — civil — partial reversal — Jordan

One company built railcars at a particular site for over 75 years, then another company bought the site and built railcars there for another 14 years. A state investigation of the site revealed illegal waste dumping on the site, resulting in a criminal prosecution and almost $9 million in clean-up costs. The two companies disputed how the clean-up costs should be allocated between them under CERCLA and an analogous state law. The district court allocated 62% of the clean-up cost to the first company; today, the Third Circuit vacated and remanded, holding that the district court’s allocation methodology was speculative because it materially deviated from the second company’s expert’s allocation methodology.

Joining Jordan were Chagares and Hardiman. Arguing counsel were Steven Baicker-McKee of Babst Calland for the first company and Paul Steinman of Eckert Seamans for the second.

Five new opinions

Five precedential opinions today! I was in Harrisburg today for a Third Circuit Bar advocacy CLE event with Judges Vanaskie and Krause, which was super but perhaps not perfectly timed for Five Opinion Day.

 

Preston v. Superintendent Graterford SCI — habeas corpus — affirmance — Rendell

Damien Preston was tried for third-degree murder, convicted, and sentenced to 20 to 40 years in prison. The Third Circuit today held that, at his trial, his constitutional right to confront the witnesses against him was violated when the prosecution introduced a witness’s prior statements to help convict Preston and the witness refused to answer any substantive questions on cross-examination. But, because this is a habeas corpus case, he lost anyway for opaque reasons.

Preston’s trial lawyer missed the Confrontation Clause issue, a blunder the opinion describes as “clearly substandard.” Then his direct appeal lawyer and his post-conviction lawyer did, too. Preston was able to overcome post-conviction counsel’s mistake based on Martinez v. Ryan. Significantly for habeas nerds, the court held that Martinez requires only trial counsel’s deficient performance, not prejudice, and that Martinez‘s substantiality requirement is the same as COA reasonable debatability. And he even proved that his trial counsel’s performance was deficient. But Preston lost in the end because the court held that he failed to show a reasonable probability that, but for counsel’s error, the outcome would have changed.

So, in the end, important good news for future defendants and habeas petitioners, but bad news for Mr. Preston.

Joining Rendell were Greenaway and Fuentes. Arguing counsel were Tom Gaeta of the EDPA federal defender (and former CA3 staff attorney) for the petitioner and Max Kaufman of the Philadelphia DA’s office for the Commonwealth.

 

Lee v. Sixth Mount Zion Baptist Church — civil — affirmance — Shwartz

When a church fired its pastor, the pastor sued for breach of contract. The district court granted summary judgment on the ground that deciding the claim would violate the Establishment Clause by entangling the court in religious doctrine, and today the Third Circuit affirmed.

Joining Shwartz were Roth and Rendell, a rare Third Circuit panel where all three judges are women. By contrast, all five lawyers listed in the caption for the parties appear to be men. Arguing counsel were Gregg Zeff of Zeff Law Firm for the pastor and Daniel Blomberg of Becket Fund for the church.

 

In re: Tribune Media — bankruptcy — affirmance — Ambro

The Third Circuit today affirmed a district court’s ruling rejecting employment discrimination claims brought by a former television station employee. The opinion’s conclusion aptly summarizes:

Younge challenges the Bankruptcy Court’s statutory and constitutional authority to decide his employment discrimination claims and asks if he can recover for an incident of racial harassment by Schultz, a co-worker at WPHL. We lack any basis to question the Court’s authority at this stage, as Younge never objected to it during bankruptcy proceedings
and instead knowingly and voluntarily submitted to the Court’s jurisdiction.

When we turn to the merits, we also see no reason to disturb the District Court’s decision affirming that of the Bankruptcy Court.  Although Schultz exhibited racial animosity toward Younge, we cannot impute liability to WPHL for a hostile work environment claim because we have no evidence that it had knowledge of Schultz’s racial bias at the time of the incident. Similarly, we cannot say that Younge was wrongfully terminated because WPHL provided a legitimate, non-discriminatory reason for his discharge. More importantly, its rationale was not pretextual because Younge and Schultz were both fired for engaging in the same conduct. Younge gives us no examples of similarly situated individuals who were disciplined more leniently for the same type of conduct. Without this type of evidence, we cannot rule in his
favor. Thus we affirm.

Joining Ambro were Scirica and Siler CA6 by designation. Arguing counsel were Timothy Creech of Philadelphia for the plaintiff and Robert Hochman of Sidley Austin for the station.

 

Vorchheimer v. Philadelphian Owners Assoc. — civil / disability — affirmance — Bibas

The Third Circuit affirmed dismissal of a suit brought under the Fair Housing Act by a woman with a disability alleging that her apartment building owners failed to accommodate her disability by rejecting her request to leave a walker in the lobby but offering alternative accommodations: ” Necessity is a demanding legal standard. For a housing accommodation to be “necessary” under the Act, it must be required for that person to achieve equal housing opportunity, taking into account the alternatives on offer.”

Joining Bibas were Hardiman and Roth. Arguing counsel were Stuart Lurie of Rosenthal Lurie for the woman and Christopher Curci of Freeman Mathis for the building owners.

 

Twp. of Bordentown v. FERC — civil / environmental — partial reversal — Chagares

Two New Jersey townships and an environmental group brought “a bevy of challenges” to  the approval of an interstate natural gas pipeline by FERC and New Jersey’s Department of Environmental Protection. The Third Circuit rejected their challenges to FERC’s approval, but remanded to the NJDEP because it misinterpreted federal law in denying the challengers’ request for a hearing. Not often do you see a 69-page opinion, complete with table of contents, in a case decided without oral argument.

Joining Chagares were Greenberg and Fuentes.

A new habeas opinion

Mitchell v. Superintendent — habeas — affirmance — Greenberg

Two defendants were jointly tried for murder. One of the defendants, Eley, won habeas relief in the Third Circuit in 2013 on a claim arising from the admission of certain evidence at the trial. Eley’s co-defendant Mitchell raised the same legal issue in exactly the same posture, but his case moved more slowly then Eley’s, and the district court denied Mitchell relief, based on a Supreme Court case decided years before the Third Circuit decided Eley.

Today, the Third Circuit affirmed. The court’s view appeared to be that, while Eley had gotten a windfall because his panel had missed controlling law fatal to his claim, Eley’s win didn’t help poor Mitchell. Eley was freed five years ago, but Mitchell is serving life.

Joining Greenberg were Chagares and Fuentes. The case was decided without oral argument.

New opinion — petitioner wins ACCA residual-clause appeal

US v. Peppers — criminal sentencing / § 2255 — reversal — Jordan

The Third Circuit today vacated a district court’s denial of relief in a successor post-conviction challenge to a criminal defendant’s sentencing under the residual clause of the Armed Career Criminal Act. The opinion’s introduction ably summarizes:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm. That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions. Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague. He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause. But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson. Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand. First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim. Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction. We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

Joining Jordan were Chagares and Fuentes. Arguing counsel were MDPA AFD Fritz Ulrich for the petitioner and MDPA AUSA Carlo Marchioli for the government.

New opinion — Third Circuit clarifies the new-evidence standard for proving actual innocence

Reeves v. Coleman — habeas corpus — reversal — Shwartz

[Disclosure: I represented the petitioner-appellant in this appeal, along with my superb pro bono co-counsel David Fine.]

Under habeas corpus law, petitioners who present new evidence of their actual innocence can have federal review of their procedurally barred or untimely constitutional claims if their innocence showing is strong enough. But what evidence qualifies as “new” evidence of innocence? Is innocence evidence “new” any time it was not presented at trial? What if it was available at trial, but counsel failed to discover or present it due to ineffective assistance of counsel?

Today the Third Circuit held that innocence evidence is new if it is the very evidence upon which the petitioner relies to demonstrate his counsel’s ineffective assistance, and that Reeves’s evidence meets that test, vacating the district court’s denial of relief based on the availability of the evidence at trial. The new-evidence standard announced today is more permissive than the various standards most district courts in the circuit have been applying, and today’s ruling is helpful for innocent prisoners fighting to get federal review of their claims.

Judge McKee concurred separately “to emphasize the weight of the evidence that supports Reeves’s claim of actual innocence,” noting that his showing is so substantial that a group of former federal judges and prosecutors filed an amicus brief on his behalf.

Joining Shwartz were McKee and Cowen, with McKee also concurring. Arguing counsel were yours truly for the petitioner and Ryan Lysaght of the Dauphin County D.A.’s office for the Commonwealth. Audio of the argument is here.

 

Update: the Court issued an amended opinion on July 23 that made minor, non-substantive edits to the footnotes in the concurrence. The link in the heading now goes to the amended opinion, the original opinion is here.

 

New opinions — habeas and tax appeals, both featuring waiver [updated]

Bennett v. Superintendent — habeas corpus — reversal — Restrepo

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that erroneous jury instructions deprived him of due process. [Disclosure: I provided consulting assistance on the appeal to petitioner’s counsel.]

The court concluded that the faulty instructions could lead the Pennsylvania jury to believe that a defendant who had no specific intent to kill could still be found guilty of murder based on an accomplice’s intent. The language from the instructions is quoted at p.34 of today’s opinion. The court’s review was de novo because the Pennsylvania courts failed to address the claim during state post-conviction proceedings. The court also held that the Commonwealth waived the harmless-error defense by failing to assert it unequivocally in this appeal.

Joining Restrepo were Ambro and Nygaard. Arguing for the petitioner were Drexel law Appellate Litigation Clinic students Ke Gang and Mischa Wheat, supervised by Richard Frankel. The court thanked the clinic  its “skillful pro bono advocacy.” Arguing for the Commonwealth was former Vanaskie clerk Christopher Lynett of the Philadelphia DA’s Office.

 

Spireas v. Commissioner IRS — tax — affirmance — Hardiman

In a high-stakes tax appeal, the Third Circuit today held that the taxpayer waived his argument on appeal by failing to assert it before the tax court. The taxpayer is a pharmaceutical scientist who earned $40 million in royalties in just two years, and the dispute was over whether this income was capital gains taxed at 15% or regular income taxed at 35%. The court did not discuss the merits of the waived claim.

Joining Hardiman was Shwartz. Judge Roth dissented, arguing that the taxpayer had not waived its argument. Arguing counsel were Brian Killian of Morgan Lewis for the taxpayer and Clint Carpenter of the DOJ Tax Division for the government.

UPDATE: on June 1, 2018, the panel issued an amended opinion along with an admirably clear order noting what had changed (two footnotes discussing waiver). The link above now goes to the new opinion; the old opinion is here.

 

New opinion — appellate counsel’s ineffectiveness can’t excuse default

Greene v. Superintendent — habeas — affirmance — Vanaskie

The Third Circuit today held that a recent Supreme Court opinion foreclosed a habeas corpus petitioner’s argument that Martinez v. Ryan should be expanded to allow review of defaulted or untimely claims based on ineffective assistance of direct appeal (vs. trial) counsel.

Joining Vanaskie were Rendell and Fisher. Arguing counsel were Michael Wiseman for the petitioner and Catherine Kiefer for the state.

New opinion — another reversal of a habeas grant

Wilkerson v. Superintendent — habeas — reversal — Krause

Just last week I wrote,

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

Today it happened again. The Third Circuit reversed a district court order granting habeas relief on a double-jeopardy claim. The court also affirmed denial of an Apprendi claim, holding that the claim was time-barred. The opinion did hold that the double-jeopardy claim was exhausted even the petitioner raised only the analogous state-law claim in state court.

Joining Krause were Hardiman and Stengel EDPA by designation (an unusual situation where a district judge reviews the decision of a district colleague). Arguing counsel were Maria Pulzetti of the federal defender for the petitioner and Max Kaufman of the Philadelphia DA’s office for the state.

New opinion — Third Circuit authorizes successor habeas petition raising ACCA challenge

In re: Hoffner, Jr. — habeas — Restrepo

The Third Circuit today authorized a prisoner to file a successor petition under 28 USC § 2255 (the equivalent of habeas corpus for federal prisoners) raising a claim that the Armed Career Criminal Act is unconstitutionally vague (i.e. a Johnson claim). The court emphasized that it takes a flexible, case-by-case approach to deciding when successor petitions are authorized, rejecting the more rigid approach taken by the Eighth Circuit.

I’ll go way out on a limb and predict that the government seeks rehearing.

Joining Restrepo were McKee and Ambro. Arguing counsel were Lisa Freeland for the petitioner and Robert Zauzmer for the government.

New opinions — wiping out a habeas grant and allowing discovery on the fairness of stash-house stings [updated]

The Third Circuit issued two precedential opinions yesterday, both reflecting the court’s fundamental centrism.

 

Mathias v. Superintendent — habeas corpus — reversal — Krause

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

The Third Circuit held that the district court erred in granting relief based on counsel’s failure to object to a faulty jury instruction involving accomplice liability. The court held that the state court’s ruling that the petitioner did not suffer prejudice was not an unreasonable application of clearly established law because two pertinent Supreme Court rulings were in tension. The court also rejected a related due process claim.

The court also held that the time-limit for cross-appealing is not jurisdictional and is waiveable under a standard set out in the opinion. It further held (as local rule 22.1(d) already provided) that petitioners need a certificate of appealability to cross-appeal, splitting with the Seventh Circuit.

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Maria Pulzetti of the EDPA federal defender for the petitioner and Jennifer Andress of the Philadelphia DA’s office for the state.

UPDATE: On November 20, the court issued an amended opinion. The link at the top of this post now goes to the new opinion. The old opinion is here, and the court’s order helpfully identifying the changes is here. The heart of the change is new footnote 4.

 

US v. Washington — criminal — partial affirmance — Fuentes

This appeal arose out of a stash house reverse sting. A what? The majority opinion explains:

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington [the defendant], contributing to a total sentence of 264 months in prison—far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court—and now again on appeal—people of color are allegedly swept up in the stings in disproportionate numbers.

The panel majority rejected the defendant’s argument that applying the mandatory-minimum sentence violated due process. Judge McKee dissented on this point, arguing that applying the minimums based on fictional drug amounts conjured by law enformcement was unfair, irrational, and not intended by Congress.

The panel unanimously remanded to allow the defendant to pursue discovery in support of a selective-enforcement claim, joining the Seventh Circuit to apply a lower standard than that applicable to selective prosecution claims.

Joining Fuentes was Cowen; McKee dissented in part. Arguing counsel were Mark Greenberg for the defendant and Eric Henson for the government.

Three new opinions, including an interesting actual-innocence case

Bruce v. Warden — habeas corpus — affirmance — Fisher

The Third Circuit today upheld a federal prisoner’s ability to challenge his conviction under 28 USC 2241 instead of 28 USC 2255, but on the merits held that the prisoner failed to prove his actual innocence, and thus affirmed.

On the 2241 issue, the court noted “an entrenched split among the courts of appeals regarding the extent to which a change in statutory interpretation permits a federal prisoner to resort to § 2241 for an additional round of collateral review.” (Emphasis added). The opinion notes that 10 circuits (including the Third) allow it, while the Tenth and Eleventh don’t. In a parenthetical, the opinion provocatively notes that Judge Gorsuch was the author of the 10th Circuit opinion, and it ends by noting that split causes difficulties that “will remain, at least until Congress or the Supreme Court speaks on the matter.” All that sounds a weensy bit like a nudge to grant certiorari and perhaps reverse the Third Circuit rule, but the opinion goes on to emphatically reaffirm the rightness of the circuit’s approach, and perhaps that tension explains why it took 10 months after oral argument to issue the opinion.

On the actual innocence issue, the court began by noting that this was the first time it had considered the merits of an actual innocence claim under 2241. It left open the question of what standard applies to such claims by rejecting Bruce’s claim under the more lenient standard, the Schlup/House/McQuiggan gateway standard. Applying that standard to the facts, the court rejected Bruce’s claim.

Joining Fisher were Vanaskie and Krause. Arguing counsel were Rajeev Muttreja of Jones Day for Bruce and Kevin Ritz for the government.

 

Vanderklok v. US — civil rights — reversal in part — Jordan

This appeal arose from an airport-security-screening dispute. A would-be traveler alleged that a TSA screener violated his First and Fourth Amendment rights by falsely accusing him of making bomb threats after the traveler threatened to file a complaint against the screener. The Third Circuit today held that no Bivens action for First Amendment retaliation exists against airport security screeners who retaliate against travelers for exercising their free-speech rights. As to the Fourth Amendment malicious prosecution claim, the court held that no interlocutory appeal was available because the defendant sought summary judgment on the merits rather than on qualified immunity.

Joining Jordan were Smith and Roth. Arguing counsel were John Connell of Archer for the TSA screener, Thomas Malone of the Malone Firm for the traveler, and Daniel Aguilar for the government as amicus.

 

M.R. v. Ridley School Dist. — civil — reversal — Krause

The introduction:

Under the Individuals with Disabilities Education Act, a parent of a child with a disability can bring administrative and judicial proceedings to challenge a school district’s alleged violations of the Act, and, if the parent emerges as “a prevailing party,” the parent is then eligible for an award of attorneys’ fees. 20 U.S.C. § 1415(i)(3)(B). This case presents the question whether a fee award is available to parents who, after unsuccessfully challenging a school district’s proposed educational placement for their child, later obtain a court order requiring the school district to reimburse them for the costs of the child’s “stay put” placement—the “then-current educational placement” in which the Act permitted the child to remain while administrative and judicial proceedings were pending. Id. § 1415(j). We answer this question in the affirmative and conclude, consistent with the Act’s text and with the opinions of this Court and the other Courts of Appeals, that a court-ordered award of retrospective and compensatory relief, even if awarded under the Act’s “stay put” provision, 20 U.S.C. § 1415(j), confers “prevailing party” status. We therefore will reverse the District Court’s denial of attorneys’ fees and remand for proceedings consistent with this opinion.

Joining Krause were Vanaskie and Restrepo. Arguing counsel were Alan Yatvin of Popper & Yatvin for the appellants and John Francis Reilly of Media for the district.

New opinions — catching up on last week’s ten opinions, including another ACA blockbuster and several notable reversals

Last week I was on vacation. During slow periods it’s not all that rare for the Third Circuit to go a week without issuing a single published opinion. But July/August is never a slow period — that’s when clerkships typically end, so everyone is scrambling to clear the decks. Last week the court issued 10 precedential opinions, 5 on Friday alone.

And there were some big ones, including a hot-button Affordable Care Act case and reversals in criminal, habeas, immigration, and prisoner civil rights cases. But enough wind-up …

 

US v. Wrensford [July 31] — criminal — reversal in part — Shwartz

The Third Circuit held that a defendant was arrested for Fourth Amendment purposes when he was involuntarily taken to a police station and held in a cell. Seems obvious, but the district court ruled to the contrary. The court vacated his criminal conviction and remanded. The court affirmed a co-defendant’s convictions on various grounds.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were FPD Omodare Jupiter for the prevailing appellant, Martial Webster for the other appellant, and Rhonda Williams-Henry and David White for the government.

 

Haskell v. Superintendent [August 1] — habeas corpus — reversal — Ambro

In this significant habeas corpus opinion, the Third Circuit held that a petitioner who has established a reasonable likelihood that the prosecution’s knowing use of false evidence could have affected the outcome need not also show that the error was not harmless. (Or, for my fellow habeas nerds, once you clear Napue you don’t have to clear Brecht too.) On the merits, the court reversed the district court’s denial of relief. Appallingly, the district court had not even granted a certificate of appealability.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were AFPD Elisa Long for the appellant and Mark Richmond of the Erie DA’s office for the Commonwealth.

 

EEOC v. City of Long Branch [August 2] — civil procedure — reversal — Chagares

The Third Circuit summarized its decision vacating a district court ruling in an EEOC enforcement suit thus:

The EEOC raises two issues on appeal: (1) whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies ***, and (2) whether the EEOC may disclose information from the noncharging parties’ employment and personnel records to Lt. Johnson ***. Despite the compelling nature of these issues, we will not reach them because of a procedural error committed by the District Court: the District Court erroneously treated the motion to enforce that the Magistrate Judge had reviewed as a nondispositive motion instead of a dispositive motion. This is a meaningful distinction under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., as the categorization of motion dictates, inter alia, the level of authority with which a magistrate judge may act on a motion and the availability and standard of review afforded by the District Court and our Court.

Joining Chagares were Ambro and Fuentes. The case was decided without oral argument.

 

Ildefonso-Candelario v. AG [August 3] — immigration — reversal — Stearns

The Third Circuit held that a conviction under Pennsylvania’s obstruction-of-justice statute, 18 Pa. Cons. Stat. 5101, is not categorically a crime involving moral turpitude because it sweeps in non-fraudulent conduct. The court firmly rejected the government’s request to remand without decision to let the BIA reconsider its ruling.

Joining Stearns (D. Mass., sitting by designation) were Jordan and Krause. Arguing counsel were Daniel Conklin of the Shagin Law Group for the petitioner and Rebecca Phillips for the government.

 

Blackledge v. Blackledge [August 3] — family — affirmance — Krause

The Third Circuit rejected a father’s appeal from denial of his petition alleging that the mother violated an international treaty by retaining custody of their son.

Joining Krause were Ambro and Nygaard. Arguing counsel for the father was former Fisher clerk M. Patrick Yingling of Reed Smith; Barbara Ernsberger of Behrend & Ernsberger argued for the mother. The opinion thanked the father’s counsel for accepting the court’s appointment in the case and for their “excellent briefing and argument.”

 

Millhouse v. Heath [August 4] — prisoner civil rights — reversal — Cowen

The mean-spirited Prison Litigation Reform Act contains a provision — the PLRA’s three strikes rule — that poor prisoners cannot qualify for the same reduced filing fees as any other poor litigants if they previously filed three or more prisoner suits that were deemed frivolous, because it’s so fair to punish people who are poor and lawyer-less for not accurately assessing the strength of their potential legal claims.

Last week, a partially divided Third Circuit panel held that a prisoner was entitled to file in forma pauperis despite having more than 3 prior suits dismissed as frivolous because (1) the number of PLRA strikes must be assessed as of the time the notice of appeal is filed and (2) dismissals without prejudice for failure to state a claim do not count as strikes. Judge Ambro disagreed on both points but would have reached the same result through equitable tolling.

Joining Cowen was Restrepo, with Ambro dissenting in part. Arguing counsel were Stephen Fogdall of Schnader Harrison for the prisoner and Timothy Judge for the government. The opinion thanked Fogdall and his Schnader co-counsel Emily Hanlon for their “excellent work” as pro bono counsel appointed by the court.

 

US v. Ferriero [August 4] — criminal — affirmance — Scirica

The Third Circuit affirmed the conviction and sentence of a New Jersey county politico convicted of violating the Travel Act, RICO, and the wire fraud statute by lobbying on behalf of commercial clients without disclosing his own financial interest. In a lengthy opinion, the court rejected various challenges to the convictions, including the defendant’s quite plausible-sounding argument that failing to disclose his interest cannot constitute making a false or fraudulent misrepresentation under the wire fraud statute. The court also rejected the defendant’s arguments relying on McDonnell v. United States.

Joining Scirica were Hardiman and Rosenthal SD Tex by designation. Arguing counsel were Peter Goldberger for the defendant and Bruce Keller for the government.

 

US v. Chapman [August 4] — criminal — affirmance — Greenaway

The Third Circuit held that a conviction for mailing a threat to injure constitutes a crime of violence under the Sentencing Guidelines. Judge Jordan concurred “to express dismay at the ever-expanding application of the categorical approach.”

Joining Greenaway were Jordan and Rendell. Arguing counsel were Ronald Krauss of the MDPA federal defender for the defendant and unfairly blocked Third Circuit nominee Rebecca Ross Haywood for the government.

 

In re: AE Liquidation [August 4] — civil — affirmance — Krause

The opinion’s introduction says it best:

This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm ***

Joining Krause were Fisher and Greenberg. Arguing counsel were Jack Raisner of New York for the appellants and Barry Klayman of Cozen O’Connor for the appellees.

 

Real Alternatives v. Secretary DHHS [August 4] — civil — affirmance — Rendell

A sharply split Third Circuit panel held last week that a secular anti-abortion group with no religious affiliation was not entitled to the same exemption as houses of worship from the Affordable Care Act’s requirement that employer-provided health insurance include contraceptive services. The court also held that employees’ religious beliefs are not substantially burdened by the ACA’s contraception mandate. The majority answered both questions “[a]fter careful review, but without any hesitation.” A petition for certiorari seems a certainty and I sure wouldn’t bet against a grant.

Joining Rendell was Greenaway. Jordan dissented as to the rejection of the employees’ claims. Both authors are at the top of their game. Arguing counsel were Matthew Bowman of Alliance Defending Freedom for the employer and employees and Joshua Salzman for the government.

New opinion — a habeas reversal based on Martinez v. Ryan

Lambert v. Warden — habeas corpus — reversal — Ambro

The Third Circuit today held that an error by a habeas petitioner’s post-conviction counsel excused the procedural default of his claim that his trial counsel was ineffective. This is the court’s third major case applying Martinez v. Ryan, following Cox v. Horn in 2014 and Bey v. Superintendent earlier this year.

The appeal arose from a joint criminal trial of two defendants. The prosecution introduced evidence that the other defendant made certain statements to his psychiatrist, and at closing the prosecutor argued that those out-of-court statements helped prove this defendant’s guilt. Trial counsel didn’t ask for a limiting instruction based on this alleged Confrontation Clause violation. PCRA counsel didn’t argue that trial counsel was ineffective, explaining in a no-merit letter that the statements were party admissions.

The Third Circuit held today that the trial-ineffectiveness claim had some merit and that PCRA counsel was ineffective for not raising it, thus excusing under Martinez the default of the trial ineffectiveness claim. The court remanded for an evidentiary hearing on trial counsel’s ineffectiveness.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Cheryl Sturm of Chadds Ford, PA, for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

New opinions — one habeas, one bankruptcy, both with appointed amicus counsel and both reversing [updated]

Vickers v. Superintendent — habeas corpus — reversal — Krause

The Third Circuit reversed a district court’s grant of habeas corpus relief, holding that trial counsel’s failure to secure an on-the-record waiver of his client’s right to a jury trial was deficient performance but that the defendant was not prejudiced given deference to state-court credibility findings. The opinion contains three other notable holdings: (1) that the state court’s ruling was not subject to 28 USC 2254(d)’s limitation on relief because it applied the wrong standard, (2) that prejudice was not presumed because the state court found that defendant had been informed of his jury-trial right, and (3) that the correct prejudice standard for cases like this is whether there was a reasonable probability that the defendant would have opted for a jury trial.

In a blistering footnote, the court catalogued the Washington County (PA) DA’s office’s “‘dereliction of duty'” during the habeas proceedings, noting that it was “deeply disturbed” and urging the office to act with “far greater diligence and professionalism.”

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Jerome Moschetta for the Commonwealth and David Fine of K&L Gates as amicus counsel for the petitioner. The opinion thanked Fine and his co-counsel Nicholas Ranjan for accepting the court’s appointment pro bono and for the quality of their briefing and argument.

 

In re: Ross — bankruptcy — reversal — Vanaskie

A homeowner facing foreclosure twice filed bankruptcy petitions to stave off the sheriff’s sale of the home. After the second filing, the district court entered an injunction barring him from future bankruptcy filings without its permission. The district court did not explain its reasoning for imposing this injunction, which was broader than what the bank had requested and broader than what the same court had imposed in a related, similar case.

The Third Circuit held that the bankruptcy code does not prohibit courts from entering filing injunctions after a debtor moves for voluntary dismissal, but that the broad injunction here was an abuse of discretion, noting that abuse-of-discretion review is less deferential when the challenged ruling below was unexplained.

Joining Vanaskie were Krause and Nygaard. Arguing counsel were Charles Hartwell of Dethlefs Pykosh (the firm’s name is misspelled in the caption) for the bank and former Stapleton clerk William Burgess of Kirkland & Ellis as court-appointed amicus for the debtor. The court expressed its gratitude to amicus for “valuable assistance.”

New opinion — Third Circuit affirms in a difficult habeas case

Johnson v. Lamas — habeas corpus — affirmance — Rendell

When William Johnson was tried in Philadelphia for murder, his co-defendant refused to testify against him, so the prosecution just introduced the co-defendant’s earlier statement implicating Johnson. That violated Johnson’s Confrontation Clause right, the Third Circuit said and the Commonwealth conceded, but on Friday the court affirmed anyway because it held that it was not unreasonable for the state court to rule that the error was harmless. Actually, the state court only addressed whether the error prejudiced the defendant and could not have influenced the outcome of the case, and I’m not sure the panel was correct at fn.21 to treat that as a decision on whether state proved the error was harmless beyond a reasonable doubt. But that’s a byzantine habeas issue and it’s not obvious whether a different analysis would have changed the outcome.

The Third Circuit also rejected Johnson’s argument that the prosecutor violated due process by insisting that the co-defendant take the stand even though the prosecutor knew he would refuse to testify. The state court had denied this claim, and the Third Circuit said: “We do not need to determine whether we owe deference to the Superior Court’s determination because we do not think the authorities Johnson relies upon clearly establish a due process violation.” I’m very skeptical that this reasoning is correct — I’m aware of no support for the idea that 2254(d)’s “clearly established” requirement still applies if the federal court does not owe deference to the state court decision, and the court does not cite any.

Rendell was joined by Fuentes and Krause. Arguing counsel were David Rudovsky of Kairys Rudovsky for Johnson and Catherine Kiefer of the Philadelphia DA’s office for the commonwealth. The argument was over a year ago.

Note: the court issued this opinion on Friday, but I was out of the office.

New opinion — a stone-crazy Philadelphia murder trial results in rare habeas reversal

McKernan v. Superintendent — habeas corpus — reversal — Roth

The Third Circuit today reversed a district court’s denial of habeas corpus relief, holding that the trial counsel provided ineffective assistance and the state court’s ruling to the contrary was unreasonable.

Today’s case arose from a late-90s Philadelphia murder trial.  Mid-trial, the judge told the victim’s family in chambers that she was very disturbed that they were criticizing her publicly and that she did not want to hear the case if they were unhappy with her. The family’s website described how the judge had been criticized by Charlton Heston as “Let ’em Loose Lisa” and “a bleeding heart judge that often sympathizes with murderers,” which the judge told the family was “a total lie.” Defense counsel was present when the judge said all this, but he advised the client not to seek the judge’s recusal. In the end the judge found the defendant guilty of first-degree murder.

In the part of the opinion likely to have the broadest significance, the court held that defendants’ right to an impartial trial extends to bench trials (trials such as this one where judges not juries are the factfinders). On the merits of McKernan’s ineffective-assistance claim, the court found that, “in the unique circumstances of this case,” counsel’s failure to seek the judge’s recusal was deficient performance because any competent attorney would have done so.

Joining Roth were Fisher and Greenaway. Arguing counsel were Maria Pulzetti of the EDPA Federal Community Defender for the petitioner and Joshua Goldwert of the Philadelphia DA’s office for the Commonwealth.

Early Reuters coverage of today’s opinion here, and Jeremy Roebuck’s Philly.com story is here.

New opinion — habeas petitioners can’t establish miscarriage of justice without proving innocence

Coleman v. Superintendent — habeas corpus — affirmance — Hardiman

The Third Circuit today affirmed a denial of habeas corpus relief, holding that the petitioner failed to make a strong enough showing of a miscarriage of justice to excuse the untimeliness of his petition. The court rejected Coleman’s argument that he could satisfy the miscarriage-of-justice standard without proving his innocence.

Joining Hardiman were McKee and Rendell. The case was decided without oral argument.

En banc court upholds habeas relief in capital case, plus two divided panels and a sentencing affirmance

Another blockbuster August day today, with a big capital-habeas en banc ruling and three panel opinions. Over 300 pages of opinion today.

Dennis v. Secretary — capital habeas corpus — affirmance — Rendell

The en banc Third Circuit today affirmed habeas corpus relief for James Dennis, holding in a landmark habeas opinion that the prosecution suppressed evidence that effectively gutted its case and that the Pa. Supreme Court unreasonably applied Brady v. Maryland when it denied relief. The 2015 panel ruling (Fisher with Smith and Chagares) had ruled for the state.

Joining Rendell were McKee, Ambro, Fuentes, Greenaway, Vanaskie, Shwartz, and Krause, and by Jordan in part. McKee concurred “to underscore the problems inherent in eyewitness testimony and the inadequacies of our standard jury instructions relating to that evidence.” Jordan concurred in part and concurred in the judgment, noting:

Every judge of our en banc Court has now concluded that the Pennsylvania Supreme Court’s contrary determination was not only wrong, but so obviously wrong that it cannot pass muster even under AEDPA’s highly-deferential standard of review. In other words, it is the unanimous view of this Court that any fairminded jurist must disagree with the Dennis I court’s assessment of the materiality and favorability of the Cason receipt. Yet somehow a majority of the Pennsylvania Supreme Court endorsed Dennis’s conviction and death sentence. The lack of analytical rigor and attention to detail in that decision on direct appeal is all the more painful to contemplate because the proof against Dennis is far from overwhelming. He may be innocent.

Fisher dissented, joined by Smith, Chagares, and Hardiman, and Hardiman also authored a dissent that Smith and Fisher joined. Arguing counsel were Amy Rohe of Reisman Karron for Dennis and Ronald Eisenberg of the Philadelphia D.A.’s office for the state.

 

Watson v. Rozum — prisoner civil rights — reversal in part — McKee

A divided Third Circuit panel today ruled in favor of a prisoner alleging a First Amendment retaliation claim.

Joining McKee was Ambro; Ambro also concurred, explaining the court’s rejection of caselaw from the Fifth and Eighth Circuits and its disavowal of prior non-precedential circuit rulings. Hardiman dissented. Arguing counsel were Kemal Mericli of the Pa. A.G.’s office for the state and former Fisher clerk Ellen Mossman of Dechert for the prisoner.

 

NAACP v. City of Philadelphia — First Amendment — affirmance — Ambro

It’s unusual enough for the same panel to issue two precedential opinions on the same day, but it’s rare indeed for the same judge to dissent in both cases. But so it was here, where Hardiman again dissented from a McKee-Ambro majority. In this case, the majority affirmed a district court ruling that Philadelphia’s policy of banning non-commercial advertising at its airport violates the First Amendment.

Arguing counsel were Craig Gottlieb for the city and Fred Magaziner of Dechert (who clerked for Rosenn) for the challengers.

 

US v. Carter — criminal — affirmance — Shwartz

The Third Circuit affirmed a district court criminal sentence applying a sentencing enhancement for maintaining a stash house. The defendant had argued he did not maintain the stash house because he did not own or rent the house and did not pay for its operation from his own funds.

Joining Shwartz were Fuentes and Restrepo. The case was decided without oral argument.

New opinions — habeas corpus relief and three affirmances

OFI Asset Management v. Cooper Tire — civil — affirmance — Jordan

In a 51-page opinion, the Third Circuit today rejected an appellant’s challenge to the district court’s management of a complex securities-fraud class action. The court criticized the clarity appellant’s underlying complaint, then wryly observed:

Now that OFI [the plaintiff-appellant] has come to us with the same kind of broad averments that drove the District Court to demand specificity, we find ourselves more than sympathetic to that Court’s position.

The court also rejected a long list of intensely factbound substantive arguments.

Joining Jordan were Ambro and Scirica. Arguing counsel were James Harrod of Bernstein Litowitz for the appellants and Geoffrey Ritts of Jones Day for the appellees.

 

Goldman v. Citigroup Global — civil — affirmance — Jordan

The Third Circuit affirmed dismissal of a securities suit for lack of subject-matter jurisdiction, rejecting the plaintiffs’ arguments under Grable & Sons v. Darue Engineering that the court had jurisdiction despite the absence of a federal cause of action. The court refused to be bound by language in a prior precedential opinion such “a summary and unexplained jurisdictional ruling” where jurisdiction was not in dispute has no precedential effect. The court also rejected the appellants’ argument that an arbitration panel’s manifest disregard for the law created a federal-question jurisdictional hook.

Joining Jordan were McKee and Roth. Arguing counsel were Richard Gerace for the appellants and Brian Feeney of Greenberg Traurig for the appellees.

 

Dempsey v. Bucknell University — civil rights — affirmance — Krause

College student Reed Dempsey was arrested after another student accused him of assaulting her. The affidavit of probable cause accompanying the criminal complaint “recklessly omitted” certain facts. After the charges were later dropped, Dempsey brought a civil rights suit alleging that the arrest violated his Fourth Amendment rights.

Today, the Third Circuit affirmed summary judgment against Dempsey because, even considering the omitted facts, a reasonable jury could not find lack of probable cause to arrest. The court rejected Dempsey’s argument that, in analyzing a probable cause issue at summary judgment, a court must ignore unfavorable disputed facts. It held that, “when a court determines that information was asserted or omitted in an affidavit of probable cause with at least reckless disregard for the truth, it must perform a word-by-word reconstruction of the affidavit.” It ruled that information was recklessly omitted, reconstructed the affidavit to include it, and held that the any reasonable juror would find that the reconstructed affidavit established probable cause.

Joining Krause were Vanaskie and Shwartz. Arguing counsel were Dennis Boyle (formerly) of Fox Rothschild for Dempsey and James Keller of Saul Ewing for the defendants.

 

Brown v. Superintendent SCI Greene — habeas corpus — reversal — Ambro

The introduction of today’s opinion granting habeas corpus relief:

This case has a familiar cast of characters: two co-defendants, a confession, and a jury. And, for the most part, it follows a conventional storyline. In the opening chapter, one of the defendants (Miguel Garcia) in a murder case gives a confession to the police that, in addition to being self-incriminating, says that the other defendant (Antonio Lambert1) pulled the trigger. When Lambert and Garcia are jointly tried in Pennsylvania state court, the latter declines to testify, thereby depriving the former of the ability to cross-examine him about the confession. The judge therefore redacts the confession in an effort to comply with Bruton v. United States, 391 U.S. 123 (1968). As a result, when the jury hears Garcia’s confession, Lambert’s name is replaced with terms like “the other guy.” The idea is that the inability to cross-examine Garcia is harmless if the jury has no reason to think that the confession implicates Lambert.

During closing arguments, however, there is a twist when the prosecutor unmasks Lambert and reveals to the jurors that he has been, all along, “the other guy.” Now, instead of a conclusion, we have a sequel. Based on a Sixth Amendment violation caused by the closing arguments, we conclude that Lambert is entitled to relief. We therefore remand so that the District Court can give Pennsylvania (the “Commonwealth”) the option either to retry or release him.

In holding that the Bruton error was not harmless, the court noted that the prosecution’s key witness had flaws and rejected the state’s argument that error was harmless because the jury already knew about these other flaws and believed the witness anyway.

Joining Ambro were Krause and Nygaard. Arguing counsel were Ariana Freeman of the EDPA Federal Community Defender for Brown and Susan Affronti of the Philadelphia DA for the state.

New opinion — Third Circuit affirms denial of ineffective-assistance claim where trial counsel raised the issue only in a footnote

Nguyen v. Attorney General — habeas corpus — affirmance — Greenberg

The Third Circuit today affirmed the denial of habeas corpus relief in a case where the prisoner argued his trial counsel was ineffective for raising a speedy-trial issue only in a letter-brief footnote. The court noted its intimate familiarity with the (New Jersey) state court’s procedures and its certainty that those courts would view the footnote as sufficient to preserve the legal issue, and accordingly it held that counsel’s performance was not deficient. The court also rejected the prisoner’s strained argument that the state courts had found as fact that counsel had not raised the speedy-trial issue.

The opinion’s holding and its core reasoning both seem sound, but I wonder about some of the language. The opinion says at pages 3 and 20 that it reviewed the ineffective-assistance claim through a “doubly deferential” lens. In habeas cases, this double deference refers to the interplay of (1) the Strickland ineffective-assistance standard with (2) the 28 USC 2254(d) limitation on relief for claims adjudicated on the merits in state court. But here the state court denied the claim on prejudice grounds only (see op. p. 22, which states “District Court took no position” but presumably means ‘state court took no position,’ compare p.15), while the Third Circuit denied relief on deficient-performance grounds only, so the 2254(d) limitation on relief did not apply. So the “doubly deferential” language seems out of place here and I hope it does not create confusion in future cases.

Joining Greenberg were Ambro and Jordan; Ambro also concurred separately. Arguing counsel were Jonathan Edelstein of Edelstein & Grossman for the prisoner and James McConnell for the state.

New opinion — preventing jurors from hearing the alternate perpetrator’s hearsay confessions does not warrant habeas relief

Staruh v. Superintendent — habeas corpus — affirmance — Smith

Two adults lived in the house where a three year-old died from blunt-force trauma: the victim’s mother and grandmother. The mother was the one charged with murder. On the eve of trial, after repeatedly claiming for over two years she had nothing to do with the injuries, the grandmother reportedly confessed in interviews with a defense investigator.

When the grandmother refused to repeat the confessions in court, the defense sought to tell the jury what the grandmother had said, offering it as a statement against penal interest. The court refused the request on hearsay grounds, and, knowing nothing about the grandmother’s confessions, the jury convicted the mother of murder.

In the habeas corpus appeal now before the Third Circuit, the mother argued that the court’s refusal to admit the grandmother’s confessions violated the mother’s due process right to present her defense. Today, without oral argument, the Third Circuit rejected the claim, affirming the district court’s ruling and denying habeas relief.

The court did not appear to dispute the mother’s contention that the confessions “were made before and during trial; were made on more than one occasion to a court-appointed investigator; were never repudiated; were very detailed; and were not the result of threats or inducements.” Yet it found that the confessions had “no indicia of credibility.” It explained:

Lois [the grandmother], in making the statements, was attempting to have her cake and eat it too.11 She was hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. Her last-minute change of heart, after she had both pleaded guilty to the lesser offense of endangering a child and disavowed any responsibility for Jordan’s death for two and a half years, further supports this view. This appears to be a “justice-subverting ploy” that provides the justification for requiring indicia of truthfulness.

In the footnote, the court noted that the defendant “appears to have been unable to obtain an affidavit from Lois reaffirming her confession . . . casting further doubt on its truthfulness.”

I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.

Perhaps the panel meant only to say that relief was foreclosed by 2254(d)(1)’s limitation on relief, not that the claim failed as a de novo matter, but that’s not how I read the opinion.

In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.

Joining Smith were Hardiman and Nygaard. The case was decided without oral argument.

UPDATES: I posted some further thoughts on this case here.

New opinion — Court affirms denial of habeas corpus relief

Dellavecchia v. Secretary PA DOC — habeas corpus — affirmance — Greenberg

After being arrested for murdering a man, James Dellavecchia smashed his head into the bars of his cell and was taken to the hospital. Dellavecchia was arraigned in his hospital bed and, while the arraigning police officer was there and without counsel, Dellavecchia made various admissions that the prosecution later used against him at trial. The state court found that admission of the defendant’s statements did not violate the Sixth Amendment because the statements were spontaneous and unsolicited. The district court denied Dellavecchia’s habeas petition, and today the Third Circuit affirmed, holding that the state-court ruling was not an unreasonable application of Supreme Court holdings and that, even if there were error, it would be harmless because the prosecution’s case was overwhelming.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument.