Wesley Harmon v. Marirosa Lamar , 640 F. App'x 175 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3762
_____________
WESLEY HARMON,
Appellant
v.
MARIROSA LAMAR; THE DISTRICT ATTORNEY FOR THE
COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA
_____________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-11-cv-00679)
District Judge: Honorable Gene E.K. Pratter
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Argued September 11, 2015
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Before: VANASKIE, RENDELL, and SLOVITER Circuit Judges.
(Opinion Filed: February 10, 2016)
J. Nicholas Ranjan, Esq.
Lucas J. Tanglen, Esq. [ARGUED]
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Appellant
Susan E. Affronti, Esq.
John W. Goldsborough, Esq. [ARGUED]
Philadelphia County Office of District Attorney
3 South Penn Square
1
Philadelphia, PA 19107
Counsel for Appellee
______________
OPINION*
______________
VANASKIE, Circuit Judge.
This appeal in a habeas corpus proceeding brought by Appellant Wesley Harmon
under 28 U.S.C. § 2254 is before us on a certificate of appealability that we issued on the
following question: “whether Harmon’s rights under the Double Jeopardy Clause were
violated by the imposition of separate punishments for aggravated assault and attempted
murder.” Order, June 19, 2014, Harmon v. Lamar, et al., No. 13-3762 (3d Cir. 2014).
For the reasons discussed below, we hold that the consecutive sentences for aggravated
assault and attempted murder arose out of a single incident and thus do violate the
Double Jeopardy Clause. Accordingly, we will vacate the judgment of the District Court
and remand with directions to issue a writ of habeas corpus requiring that Harmon be re-
sentenced.
I.
Following a trial in the Court of Common Pleas of Philadelphia County in 2003, a
jury convicted Wesley Harmon of attempted murder, aggravated assault, and possessing
an instrument of crime for the May 1, 2002 shooting of Tyrone Mitchell. The Superior
Court of Pennsylvania described the facts surrounding the shooting as follows:
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
[Harmon] approached the victim, Tyrone Mitchell, outside of
the Green Leaf Apartments in Philadelphia, where
[Harmon]’s girlfriend resided. [Harmon] accused Mitchell,
who was a maintenance worker and a tenant at the apartment
complex, of breaking into [Harmon]’s girlfriend’s apartment.
During the conversation, Mitchell’s five-year-old son ran up
to Mitchell from behind, and Mitchell turned to pick up his
son. As Mitchell’s back was turned, [Harmon] shot Mitchell
once in the back. Mitchell then pushed his son out of the way
and turned around, momentarily grabbing [Harmon]’s gun.
[Harmon] then shot Mitchell in the finger, and at least five
more times in the stomach and leg. Mitchell identified
[Harmon] as his assailant on his way to the hospital, where he
remained in a coma for more than one month.
Commonwealth v. Wesley, 860 A.2d 585, 587 (Pa. Super. Ct. 2004).1
Throughout Harmon’s trial, the Commonwealth described the shooting as a single
event, repeatedly characterizing the shooting as an attempted execution. This
characterization was consistent with the victim’s testimony, who exclaimed that “[i]t all
happened so fast. It was like once he shot me and I turned around he just kept on
shooting.” (App. 62.) The Commonwealth urged the jury to conclude that Harmon’s
actions amounted to more than just aggravated assault. Notably, the Commonwealth
argued in both its opening and closing statements that Harmon had the specific intent to
kill Mitchell from the time he fired the first shot. In its opening, the Commonwealth
explained that “[Harmon is] charged with attempted murder. Because, number one, he
shot [Mitchell] at close range in the back [with] the first shot. That alone is an attempted
murder. Then he shot him again. And again, and again, and again. Seven times.” (App.
49; emphasis added.) In its closing, the Commonwealth asserted that “[s]pecific intent
1
Although Appellant’s name is Wesley Harmon, a number of the state
proceedings are improperly captioned Commonwealth v. Wesley.
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[to kill] can be formed in an instant. And [Harmon] pulling that trigger the first time and
shooting that man in the back, that’s specific intent . . . . [All the shots] show what that
man’s intent was on May first of 2002.” (App. 133; emphasis added).
At sentencing, the Commonwealth acknowledged that convictions for attempted
murder and aggravated assault stemming from a single incident merge for sentencing
purposes. Nonetheless, the prosecutor asserted that Harmon should be sentenced
separately for aggravated assault and attempted murder. Contrary to the arguments made
to the jury, the prosecutor took the position “that the aggravated assault happened when
Tyrone Mitchell . . . gets shot in the back once. That’s an aggravated assault.” (App.
156.) Then, after the momentary struggle for the gun, Harmon “decides to try to kill him,
and shoots him six more times while he’s down.” (App. 156.)
The sentencing judge “agree[d] with the Commonwealth that the first time is an
aggravated assault and the next six shots are an attempt to kill Mr. Mitchell, making it an
attempted murder.” (App. 158.) Defense counsel did not specifically object to that
proposition, but generally argued for the imposition of concurrent sentences. Ultimately,
the court imposed an aggregate sentence of 32.5 to 65 years’ imprisonment, consisting of
consecutive terms of 20 to 40 years for attempted murder; 10 to 20 years for aggravated
assault; and 2.5 to 5 years for possessing an instrument of crime.
On direct appeal, Harmon alleged that the trial court imposed illegal consecutive
sentences for his attempted murder and aggravated assault convictions that arose out of a
single episode. Harmon framed his argument in the context of Pennsylvania’s merger
doctrine, stating that “[i]n a single-episode assault with a single victim, the crimes of
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attempted murder and aggravated assault merge for sentencing purposes.” (App. 188.)
In support of this argument, Harmon cited Commonwealth v. Anderson, 650 A.2d 20, 24
(Pa. 1994), which held that “the offense of aggravated assault is necessarily included
within the offense of attempted murder; every element of aggravated assault is subsumed
in the elements of attempted murder.”
The Superior Court rejected his argument and adopted the view of the sentencing
court that “[Harmon]’s actions constituted two separate criminal acts.” Wesley, 860 A.2d
at 593. The Superior Court agreed that Harmon’s initial shot to Mitchell’s back
constituted an aggravated assault, after which Harmon took a substantial step toward an
intentional killing by firing the remaining shots. Id. Although the Supreme Court of
Pennsylvania initially granted Harmon’s petition for allowance of appeal, it later reversed
course and dismissed the appeal as improvidently granted. Commonwealth v. Wesley,
896 A.2d 564 (Pa. 2006).
Harmon then petitioned for collateral review under Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541–9546, where he again
raised the illegal sentence claim. On May 15, 2008, the PCRA court entered an order
denying Harmon’s petition for lack of merit. Harmon appealed to the Superior Court,
which affirmed the PCRA court on November 5, 2010.
On January 31, 2011, Harmon filed a pro se petition pursuant to 28 U.S.C. § 2254
in the United States District Court for the Eastern District of Pennsylvania. In his
petition, Harmon argued that his consecutive sentences violated the Double Jeopardy
Clause of the Fifth Amendment. On March 30, 2011, a Magistrate Judge issued a report,
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recommending that the District Court deny Harmon’s petition. The Magistrate Judge
concluded that Harmon’s claim was not cognizable in a federal habeas proceeding
because Harmon had failed to raise a double jeopardy claim during his state court appeal.
The Magistrate Judge also concluded that the claim failed on its merits because Harmon
“committed two distinct offenses—aggravated assault and attempted murder—both
separated in time.” (App. 22.) By Order entered December 19, 2012, the District Court
adopted the Magistrate Judge’s recommendation, denied Harmon’s petition, and declined
to issue a certificate of appealability.
Thereafter, Harmon filed an application for a certificate of appealability, which
this Court granted with respect to Harmon’s claim that his consecutive sentences for
attempted murder and aggravated assault violated the Double Jeopardy Clause of the
Fifth Amendment.
II.
The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. § 1291 and § 2253. Where, as here, the District Court based its decision
on the state court record without holding an evidentiary hearing, we apply a plenary
standard of review. Branch v. Sweeney, 758 F.3d 226, 232 (3d Cir. 2014). While our
review of the District Court’s decision is plenary, we analyze the state court’s decision
“with considerable deference” in light of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241–2254. Branch, 758 F.3d at 232.
III.
A.
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A threshold issue we must address is whether Harmon appropriately pursued his
double jeopardy claim in the state court proceedings. Here, the District Court concluded
that Harmon’s claim was not cognizable by a federal court in a habeas proceeding
because Harmon’s “state appellate brief [did] not mention federal law or the
Constitution” and he “did not allege[] that his sentence violated the United States
Constitution Double Jeopardy Clause” during his state court appeal. (App. 21.)
A federal court may not grant a writ of habeas corpus unless the petitioner “has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
To do so, “the petitioner must ‘fairly present’ all federal claims to the highest state court
before bringing them in federal court.” Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d
Cir. 2002) (quoting Whitney v. Horn, 280 F.3d 240, 250 (3d Cir.2002)). To fairly present
a claim, the petitioner “need not have cited ‘book and verse’ of the federal constitution.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (quoting Picard v. Connor, 404
U.S. 270, 278 (1971)). Rather, the petitioner must present the federal claim’s “factual
and legal substance to the state courts in a manner that puts them on notice that a federal
claim is being asserted.” Id. In McCandless, we delineated a variety of ways a petitioner
can fairly present a claim, including: “[1] reliance on state cases employing constitutional
analysis in like fact situations, [2] assertion of the claim in terms so particular as to call to
mind a specific right protected by the Constitution, and [3] allegation of a pattern of facts
that is well within the mainstream of constitutional litigation.” Id. (quoting Evans v.
Court of Common Pleas, Del. Cty., Pa., 959 F.2d 1227, 1232 (3d Cir. 1992)). We
exercise plenary review over the District Court’s determinations regarding exhaustion
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and procedural default. Fahy v. Horn, 516 F.3d 169, 179 (3d Cir. 2008).
In the state court proceedings, Harmon relied on Commonwealth v. Anderson, 650
A.2d 20 (Pa. 1994), to support his argument that his sentence was illegal. Like Harmon,
the defendant in Anderson challenged the imposition of consecutive sentences for
aggravated assault and attempted murder arising out of a shooting incident. Id. at 20–21.
In determining that the convictions should have merged for sentencing purposes, the
Pennsylvania Supreme Court analyzed Blockburger v. United States, 284 U.S. 299
(1932), and concluded that “there is no difference between a double jeopardy analysis
and a merger analysis: double jeopardy and merger are identical.” Anderson, 650 A.2d at
23. Harmon’s reliance on Anderson, which “employ[ed] [a] constitutional analysis in [a]
like fact situation[],” was sufficient to put the state courts “on notice that a federal claim
is being asserted.” See McCandless, 172 F.3d at 261. Therefore, Harmon fairly
presented his double jeopardy claim in the state courts.
B.
In order to determine the standard of review applicable to Harmon’s claim, we
must next determine whether that claim was adjudicated on the merits by the
Pennsylvania Superior Court. A state court does not need to give reasons in order for its
decision to be deemed an adjudication “on the merits.” Johnson v. Williams, 133 S. Ct.
1088, 1094 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 100 (2011)). Rather,
where a petitioner presents a federal claim to a state court and the state court denies
relief, “a federal habeas court must presume that the federal claim was adjudicated on the
merits.” Johnson, 133 S. Ct. at 1096. Moreover, if the state court addresses a state-law
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claim where the state-law rule “is at least as protective as the federal standard[,] then the
federal claim may be regarded as having been adjudicated on the merits.” Id.
The Superior Court did not address the Double Jeopardy Clause or cite to any
federal law. Instead, the Superior Court addressed Harmon’s claim with regard to
Pennsylvania’s merger doctrine. Pennsylvania’s merger doctrine, however, fully
incorporates a defendant’s rights under the Double Jeopardy Clause. See Anderson, 650
A.2d at 23 (“[T]here is no difference between a double jeopardy analysis and a merger
analysis: double jeopardy and merger are identical. . . .”). Therefore, Harmon’s double
jeopardy claim “may be regarded as having been adjudicated on the merits” by virtue of
the Superior Court’s rejection of his merger claim. Johnson, 133 S. Ct. at 1096.
C.
Where, as here, a state court has decided the merits of a petitioner’s federal claim,
habeas relief under AEDPA is appropriate only if the state court’s adjudication of the
claim “was (1) ‘contrary to, or involved an unreasonable application of, clearly
established Federal law,’ or (2) ‘was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.’” Grant v. Lockett, 709
F.3d 224, 231 (3d Cir. 2013) (quoting 28 U.S.C. § 2254(d)). We accord great deference
to the state court’s findings of fact, which will not be deemed unreasonable “merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
The Superior Court found that Harmon’s first shot to Mitchell’s back constituted
an aggravated assault. Then, only after firing this first shot, Harmon took a substantial
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step toward intentionally killing Mitchell—a required element of attempted murder—by
firing the remaining six shots. The Superior Court concluded that this “constituted two
separate criminal acts.” Wesley, 860 A.2d at 593. We find that that this factual
determination is unreasonable.
The evidence presented at trial established that Harmon’s shooting of Mitchell
was one continuous event in which he had the intent to kill Mitchell from the very first
shot. Mitchell himself testified: “It all happened so fast. It was like once he shot me and
I turned around he just kept on shooting.” (App. 62.) Moreover, the prosecution’s theory
at trial was that Harmon attempted to execute Mitchell. The prosecution repeatedly
argued that Harmon had the specific intent to kill Mitchell from the time he fired the first
shot. A finding that the shooting constituted two criminal acts, with Harmon not
intending to kill his victim with the first shot and only forming the intent to kill after
taking the first shot, is unreasonable.
Our determination that the Superior Court made an unreasonable factual finding,
however, is not dispositive. As we explained in Lambert v. Blackwell, 387 F.3d 210,
235–36 (3d Cir. 2004), “what factual findings remain to support the state court decision
must still be weighed under the overarching standard of [§] 2254(d)(2).”
D.
Harmon contends that when this event is viewed as one criminal act, his rights
under the Double Jeopardy Clause were violated. We agree. The Double Jeopardy
Clause “protects against multiple punishments for the same offense.” Ohio v. Johnson,
467 U.S. 493, 498 (1984) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)). Multiple
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punishments constitute a double jeopardy violation when the charged offenses are “the
same in law and in fact.” United States v. Finley, 726 F.3d 483, 495 (3d Cir. 2013).
Offenses are the same “in law” where “one is a lesser-included offense of the other under
the ‘same elements’ (or Blockburger) test.” United States v. Miller, 527 F.3d 54, 71 (3d
Cir. 2008).
In Pennsylvania, aggravated assault and attempted murder are the same “in law”
because aggravated assault is a lesser included offense of attempted murder. Anderson,
650 A.2d at 24 (“Inasmuch as aggravated assault, the lesser offense, contains some, but
not all the elements of the greater offense, attempted murder, the two offenses merge for
purposes of sentencing.”). Harmon’s convictions are also the same “in fact” because
both convictions arose from one continuous criminal act. Because Harmon’s convictions
for aggravated assault and attempted murder are the same in law and fact, Harmon’s
rights under the Double Jeopardy Clause were violated by the imposition of consecutive
sentences for these two convictions.
IV.
For the aforementioned reasons, we will vacate the District Court’s order and
judgment denying habeas relief and remand with directions to enter a writ of habeas
corpus requiring that Harmon be re-sentenced.2
2
We wish to acknowledge the efforts of pro bono counsel, who are to be
commended for their exemplary presentation of the issues on behalf of Mr. Harmon.
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