Richard Woods v. Marirosa Lamas , 631 F. App'x 96 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3751
_____________
RICHARD WOODS,
Appellant
v.
MARIROSA LAMAS;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA
On Appeal from the United States District Court for
the Eastern District of Pennsylvania
(No. 2-12-cv-01684)
District Judge: Hon. Gene E.K. Pratter
Argued: September 15, 2015
Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.
(Filed: November 23, 2015)
Richard H. Frankel
Kyle Gray, Student Counsel (Argued)
Kathleen Bichner, Student Counsel (Argued)
Appellate Litigation Clinic
Drexel University
Thomas R. Kline School of Law
3320 Market Street
Philadelphia, PA 19104
Attorneys for Appellants
Susan E. Affronti (Argued)
Thomas W. Dolgenos
Ronald Eisenberg
Edward F. McCann, Jr.
R. Seth Williams
Philadelphia County Office of District Attorney
Three South Penn Square
Philadelphia, PA 19107
Attorneys for Appellees
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OPINION*
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CHAGARES, Circuit Judge.
Richard Woods appeals the District Court’s dismissal of his 28 U.S.C. § 2254petition. For the reasons that follow, we will affirm, albeit on an alternative basis.1
I.
Because we write exclusively for the parties, we set forth only those facts
necessary to our disposition.
Woods was charged on April 10, 2001, with first-degree murder by the
Commonwealth of Pennsylvania for the killing of his brother, and his trial in the Court of
Common Pleas of Philadelphia did not begin until December 9, 2003, 973 days later.
After the complaint was filed, Woods was brought before the Municipal Court of
Philadelphia for a preliminary hearing (continued upon joint request from April 25, 2001,
to May 15, 2001), and his case was listed for status in the Court of Common Pleas. On
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
The attorneys for the appellant are appearing pro bono. We express our gratitude
to those attorneys for accepting this matter pro bono and for the quality of their
representation of their client. Lawyers who act pro bono fulfill the highest service that
members of the bar can offer to indigent parties and to the legal profession.
2
July 6, 2001, the court granted the defense’s request for a psychological evaluation to
determine Woods’s competency to proceed to trial and excluded the time periods from
July 6, 2001, to September 10, 2001, for speedy trial purposes under Pennsylvania Rule
of Criminal Procedure 600 (“Rule 600”). The competency evaluation was completed on
September 17, 2001, at which point the case was again continued to September 24, 2001,
with the time excluded. On September 24, 2001, the case was “spun out” to a different
judge and continued to October 11, 2001, at which point it was continued for another day
until October 12, 2001, because defense counsel was not available. On October 12, 2001,
the case was continued to November 8, 2001, to facilitate plea negotiations, with the time
excluded. On November 26, 2001, the court granted Woods’s attorney’s motion to
withdraw, and new counsel was appointed.
During the next hearing on March 26, 2002, the court declined to change the
original trial date of July 15, 2002, which was marked “E.P.D.,” apparently an
abbreviation for “earliest possible date.”2 The period from November 26, 2001, through
July 15, 2002, was not excluded. On July 15, 2002, the defense sought a continuance,
and the proceedings were continued until January 21, 2003. On January 21, 2003,
defense counsel said that he was working on a capital trial and was unavailable, and the
case was continued until July 21, 2003, with the time ruled excludable. The next hearing
occurred on July 30, 2003; the judge was unavailable due to illness, and the proceedings
2
In its brief and at oral argument, the Commonwealth has contended that the case
was marked for the earliest possible date on March 26, 2002, and again on September 15,
2013, upon the Commonwealth’s request, Comm. Br. 14, but such requests are not clear
from the record before the Court.
3
were continued until September 15, 2003. On September 2, 2003, Woods submitted a
pro se motion for dismissal of charges on speedy trial grounds. See Appendix (“App.”)
at 39. The court did not consider Woods’s pro se motion because he was represented by
counsel. See Commonwealth v. Williams, 410 A.2d 880, 883 (Pa. 1979). On September
15, 2003, the case was listed for a two-to-three-day trial and continued to November 13,
2003. That day, the Commonwealth and defense counsel jointly requested a continuance,
and a status conference was set for November 19, 2003, with a trial on December 8,
2003. On December 8, defense counsel was unavailable, and the case was delayed until
December 9, 2003, when Woods’s trial commenced.
After his conviction and an unsuccessful counseled appeal, Woods filed a pro se
collateral petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42
Pa. Cons. Stat. § 9541, et seq., in which he argued, inter alia, that his trial counsel had
been ineffective for failing to file a speedy trial motion under Rule 600. He filed the
petition on March 5, 2008, and he was later appointed PCRA counsel. After the PCRA
court dismissed his petition, Woods appealed. Appointed counsel filed a statement of
issues complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b) (“1925(b) statement”) that did not include the Rule 600 ineffectiveness claim.
On June 28, 2010, Woods was granted permission to proceed pro se. On June 29, 2010,
Woods filed a “Motion to File Emergency Amended Statement of Matters Complained of
on Appeal.” App. 129. In that motion, he complained that he was denied his right to a
speedy trial under Rule 600 and the United States Constitution and that trial counsel was
ineffective for failing to advance a speedy trial argument. Id. at 130. That motion was
4
stamped “Filed in Superior Court,” id. at 129, but it is not listed on the Superior Court
docket sheet, id. at 136. Woods then filed his PCRA appellate brief in the Superior
Court on August 9, 2010, in which he included speedy trial and ineffective assistance of
counsel claims. Id. at 140-89.
On September 30, 2010,3 Woods filed a second motion to add a claim to his
1925(b) statement regarding the competence of the minors who testified against him, and
the Superior Court remanded the motion and the record to the Court of Common Pleas
with instructions to Woods “to file with the trial court and serve upon the trial judge a
supplemental Pa. R.A.P. 1925(b) statement of errors complained of on appeal, raising the
one issue referenced in his motion to supplement the record.” Id. at 193. Woods thus
filed a supplemental 1925(b) statement raising only the claim regarding the minors’
competence. The Court of Common Pleas denied that claim on November 17, 2010, and
on July 19, 2011, the Superior Court affirmed the denial by the Court of Common Pleas
of Woods’s PCRA petition. The Superior Court concluded that Woods had waived his
claim of ineffectiveness based on failure to raise a speedy trial claim and his
constitutional speedy trial claim because he “failed to present the claims either in his
original Rule 1925(b) statement or in his supplemental Rule 1925(b) statement.” Id. at
207.
On April 4, 2012, Woods filed a pro se petition pursuant to 28 U.S.C. § 2254 in
the District Court. The Magistrate Judge concluded in her Report and Recommendation
3
The motion is signed with a date of September 27, 2010, but the Superior Court
stamped the motion as having been filed on September 30, 2010. See App. 190-91.
5
(“R&R”) that Woods had procedurally defaulted the ineffective assistance of counsel
claim by failing to bring it in his amended 1925(b) statement. Id. at 14-15. The District
Court, over Woods’s objections, approved and adopted the R&R, dismissed the petition,
and declined to grant a certificate of appealability. Id. at 3-4. We granted the request for
a certificate of appealability with respect to two issues: (1) whether trial counsel was
ineffective for failing to move to dismiss the charges against Woods under Pa. R. Crim.
P. 600, and (2) whether Woods’s constitutional right to a speedy trial was violated.
Woods, through counsel, timely filed this appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). AEDPA limits our review of
claims adjudicated on the merits in state court, such that we may not grant relief unless
the state court proceeding:
(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). We review de novo claims, such as Woods’s, that were not
adjudicated on the merits in state court. See Thomas v. Horn, 570 F.3d 105, 113 (3d Cir.
2009).
III.
6
Woods argues here that (1) trial counsel was ineffective for failing to move for
dismissal under Rule 600; and (2) the Commonwealth violated his constitutional right to
a speedy trial. The District Court approved the Magistrate Judge’s finding that Woods
procedurally defaulted the claims. We conclude that, whether or not Woods procedurally
defaulted the claims, his petition clearly fails on the merits.4
A.
We first consider Woods’s claim of ineffectiveness of counsel for failure to move
for dismissal under Rule 600. A petitioner claiming ineffectiveness must show (1) “that
counsel’s representation fell below an objective standard of reasonableness,” and (2)
“that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). In evaluating an attorney’s conduct under Strickland, we “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” and a defendant must overcome the presumption that
“under the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (quotation marks omitted).
4
The Commonwealth has asked us to ignore the procedural default question and
decide the case on the merits. Given the straightforward merits issues and comparatively
difficult state procedural issues, we will do so in this case. See Lambrix v. Singletary,
520 U.S. 518, 525 (1997) (“Judicial economy might counsel giving the [merits] question
priority, for example, if it were easily resolvable against the habeas petitioner, whereas
the procedural-bar issue involved complicated issues of state law. Cf. 28 U.S.C. §
2254(b)(2) (permitting a federal court to deny a habeas petition on the merits
notwithstanding the applicant’s failure to exhaust state remedies).”).
7
Woods argues that the Commonwealth was required to bring him to trial within
365 days of filing the complaint. See Pa. R. Crim. P. 600(A). 5 Excluded from this
calculation are periods of time resulting from the unavailability of the defendant or his
attorney, or from continuances requested by the defendant. See id. at (C)(3). “[T]he . . .
filing of a pretrial motion by a defendant . . . render[s] him unavailable . . . if a delay in
the commencement of trial is caused by the filing of the pretrial motion” and the
Commonwealth “exercised due diligence in opposing or responding to the pretrial
motion.” Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999).
Even where the defendant was not brought to trial within 365 non-excludable
days, the Commonwealth could defeat a motion to dismiss charges on speedy trial
grounds by showing that it “exercised due diligence” in prosecuting the case “and the
circumstances occasioning the postponement were beyond [its] control.” Id. at 591(quotation marks and alteration omitted). “Due diligence is a fact-specific concept that
must be determined on a case-by-case basis” and “does not require perfect vigilance and
punctilious care, but rather a showing by the Commonwealth that a reasonable effort has
been put forth.” Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. Ct. 2007)
(en banc). Rule 600 “encompasses a wide variety of circumstances under which a period
of delay was outside the control of the Commonwealth and not the result of the
Commonwealth’s lack of diligence.” Id. at 1103.
5
Rule 600 has recently been amended; we apply the version in effect at the time of
Woods’s pretrial proceedings.
8
Although it may be that more than 365 non-excludable days passed before
Woods’s trial, the Commonwealth could have argued in response to a Rule 600 motion
that much of the delay was a result of the defense’s actions, or at least beyond the
Commonwealth’s control and therefore not indicative of a lack of diligence. Woods’s
trial counsel could reasonably have foreseen the Commonwealth’s argument and
concluded that a Rule 600 motion would be unlikely to succeed and that pursuing the
motion would divert his time and attention from preparing the defense. In short, Woods
has not alleged a Rule 600 claim so meritorious as to overcome the strong presumption
that counsel’s decision not to pursue it fell within “the wide range of professionally
reasonable assistance” that constitutes effective assistance. Strickland, 466 U.S. at 689.
Consequently, we hold that Woods cannot prevail on his claim that trial counsel was
ineffective for failing to raise the Rule 600 issue.
B.
We now consider Woods’s claim that he was denied a speedy trial in violation of
the Sixth Amendment, which we will review as a Strickland claim of ineffectiveness of
counsel, notwithstanding Woods’s assertion that the issue is before us as both a
Strickland claim and a standalone speedy trial claim. 6
6
Woods contends that his PCRA submissions, although inconsistent and
ambiguous in their characterization of the constitutional speedy trial claim, should be
read liberally and collectively to have raised the issue as both a Strickland claim and a
standalone claim. Woods does not deny, however, that counsel failed to raise the
constitutional speedy trial issue in the original trial court or on direct appeal. Failing to
do so would generally bar consideration of the issue as a standalone claim on collateral
review, and in dismissing his PCRA petition for a different reason (Woods’s failure to
present the claim in his Rule 1925(b) statement), the state court does not appear to have
9
In determining whether a violation of a defendant’s Sixth Amendment right to a
speedy trial has occurred, courts employ a balancing test, considering the “length of
delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the
defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). The four factors are “related . .
. and must be considered together with such other circumstances as may be relevant.” Id.
at 533. The first factor acts as “a triggering mechanism,” and as the Commonwealth
concedes, 973 days is sufficient to trigger a speedy trial inquiry. See Comm. Br. 20.
The second factor, the reason for the delay, weighs heavily against Woods. A
large portion of the delay, including the period from July 15, 2002, until July 30, 2003,
was the direct result of continuance requests by defense counsel. Moreover, no period of
the delay was attributable to a continuance request solely by the Commonwealth.
Though delays caused by the courts “should be considered,” Barker, 407 U.S. at 531,
here, much of the delay was due to defense counsel’s continuance requests.
The third factor weighs neither for nor against Woods. As we explained in United
States v. Battis, 589 F.3d 673 (3d Cir. 2009), in order to show that he asserted a speedy
trial right at the time of the delay, a defendant who was represented by counsel “should
identify ‘a motion or some evidence of direct instruction to counsel to assert the right at a
time when a formal assertion would have some chance of success.’” Id. at 681 (quoting
Hakeem v. Beyer, 990 F.2d 750, 766 (3d Cir. 1993)). Viewing this factor through the
found otherwise. Further, while before the District Court, Woods lodged no objection to
the Magistrate Judge’s characterization of both the Rule 600 and constitutional speedy
trial issues as Strickland claims in the R&R that was later approved and adopted by the
District Court.
10
lens of Woods’s claim of ineffective assistance of counsel, it is not dispositive that trial
counsel acquiesced in the delay. See Barker, 407 U.S. at 536 (acknowledging the
possibility of “a situation in which an indictment may be dismissed on speedy trial
grounds where the defendant has failed to object to continuances” if “the defendant was
represented by incompetent counsel”). Woods did eventually attempt to assert his speedy
trial right through his pro se motion filed in September 2003. But Woods himself had, by
all appearances, acquiesced in the delay for nearly two and a half years before filing the
pro se motion, and it is unlikely that a speedy trial motion submitted by counsel would
have succeeded in September 2003. Overall, this factor is neutral in our analysis.
The prejudice factor is close, but it ultimately weighs against Woods. Woods
complains of prejudice in the form of mental suffering and anxiety while awaiting trial
and the impaired ability to participate in the preparation of his defense, both of which the
Supreme Court has recognized as relevant to a speedy trial assessment. See Barker, 407
U.S. at 532. The Commonwealth notes, and Woods concedes, that of the pretrial period
Woods spent incarcerated, he would have been incarcerated for at least twelve months on
other charges. On November 30, 2001, he pled guilty to possession with intent to deliver
a controlled substance and was sentenced to three to twelve months of incarceration, see
Supplemental Appendix (“S.A.”) 3, and on March 7, 2002, he pled guilty to the probation
violation of carrying a firearm without a license. See id.; see also Woods Reply Br. 18;
Comm. Br. 25-26. With regard to prejudice to Woods’s ability to prepare his defense,
although it may have been more difficult for Woods to communicate with his attorney
11
while he was incarcerated, the delay presumably also aided Woods’s defense, as it
allowed his attorney the time that he requested to prepare for trial.
Considering all these factors together, Woods’s trial counsel could have
reasonably concluded that a constitutional speedy trial motion, like a motion under Rule
600, would consume scarce time and resources but have little chance of succeeding.
Woods therefore cannot overcome the “strong presumption” that his trial counsel acted
“within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at
689, in not raising the constitutional speedy trial issue.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment.
12