Glass v. Vaughn ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
9-7-1995
Glass v Vaughn
Precedential or Non-Precedential:
Docket 94-1811
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Recommended Citation
"Glass v Vaughn" (1995). 1995 Decisions. Paper 247.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/247
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-1811
COMMER GLASS
V.
DONALD T. VAUGHN; THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA;
THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY
Donald T. Vaughn, Superintendent, State Correctional
Institution at Graterford; Ernest D. Preate, Jr.,
Attorney General of Pennsylvania and Lynne Abraham,
District Attorney of Philadelphia County,
Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil Action No. 91-00963)
Argued February 28, 1995
Before: SLOVITER, Chief Judge,
NYGAARD and McKEE, Circuit Judges
(Opinion Filed September 7, 1995)
DONNA G. ZUCKER, ESQUIRE (Argued)
Office of the District Attorney
1421 Arch Street, 5th Floor
Philadelphia, PA 19102
Attorney for Appellants
STEPHEN A. WHINSTON, ESQUIRE (Argued)
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Attorney for Appellee
1
OPINION OF THE COURT
2
NYGAARD, Circuit Judge.
Respondents appeal from the order of the district court
granting a writ of habeas corpus to the petitioner, Commer Glass,
who is currently serving a life sentence for first-degree murder.
The district court held that Glass' trial counsel was ineffective
because he failed to investigate petitioner's military
experiences and subsequent history of bizarre behavior, which the
court concluded would have led counsel to put on a diminished
capacity defense. We do not reach that issue. Instead, because
petitioner's current habeas claim was procedurally defaulted in
state court and he does not fall within the "actual innocence"
exception recently set forth in Schlup v. Delo, ___ U.S. ____,
115 S. Ct. 851 (1995), we will reverse.
I.
The facts of this case can be found in the published
opinion of the district court, Glass v. Vaughn, 860 F. Supp. 201
(E.D. Pa. 1994), and need only be summarized. Petitioner Glass
was arrested for the murder of Billie Ann Morris, bound over for
trial, and retained Attorney Barry Denker to defend him. Glass
told both the police and his attorney that he was elsewhere when
the crime was committed. Attorney Denker's investigation was
therefore limited to interviewing petitioner and driving him
along the route he claimed to have taken on the night of the
murder. As we shall see, however, there was much more to the
story.
Petitioner served in the Armed Forces in Vietnam,
experiencing heavy combat. He saw many people get killed,
3
including his friends. On at least two occasions, petitioner
killed Vietnamese civilians, including a Vietnamese woman who
allegedly made a threatening gesture to a fellow soldier after a
sexual encounter. Petitioner, like many other Vietnam veterans,
exhibited a variety of behaviors consistent with post-traumatic
stress disorder ("PTSD"). He had acted violently towards Morris
even before the murder, and remarked the day before the killing
that "women do what I say do, if not I kill them."
Nonetheless, he never told his attorney about his
military combat experiences nor about the psychological problems
that followed. Indeed, as the district court recognized, "no
person volunteered any information to Denker and Denker never
sought any information that would have alerted him to the
possibility of a psychiatric defense." Glass, 860 F. Supp. at
204. Glass did suggest that Attorney Denker interview Phyllis
Brown, whom Glass later married, to find out what type of person
he was, but Denker never interviewed her. The district court
found that Mrs. Glass was aware of petitioner's psychological
problems and would have told Denker about them had she been
asked.
Attorney Denker offered no witnesses at trial and did
not argue that Glass' diminished capacity from PTSD negated the
mens rea element of the crime. Denker instead argued, consistent
with Glass' statement to the police, that he had an alibi. The
jury found Glass guilty of first-degree murder and the court
sentenced him to life imprisonment. While in prison, he was
formally diagnosed as suffering from PTSD.
4
Glass filed various direct appeals and habeas
proceedings, including this petition alleging that Attorney
Denker was ineffective because he failed to investigate and
pursue a diminished capacity defense. Glass presented and lost
on this allegation of error before the state trial court in his
second postconviction relief petition. Unfortunately, he did not
appeal. Thus, the district court held that petitioner's federal
habeas claim was both exhausted and procedurally defaulted.
Without the "actual innocence" exception, the court noted that
his habeas claim would accordingly be barred. 860 F. Supp. at
215. We agree.
Glass argues on appeal that, because he raised the
issue of attorney effectiveness in his first postconviction
relief petition to the state court (which he did appeal), he has
properly exhausted the claim currently before this court. We
disagree. In his earlier Post Conviction Hearing Act proceeding,
Glass argued that his postconviction counsel was ineffective for
not amending the petition to include the after-discovered
evidence of PTSD and diminished capacity, even though he had made
counsel aware of the prison psychologist's diagnosis. Here,
Glass asserts that his trial counsel was ineffective because he
failed to investigate a defense based on an undisclosed and
undiagnosed psychiatric condition. We cannot say that Glass'
earlier petition fairly presented this issue to the state
appellate courts.
5
The district court, however, held that Glass made out a
claim of "actual innocence" sufficient to overcome petitioner's
procedural default. It opined:
If the evidence [of PTSD] had been presented
at trial, there is certainly a fair
probability that a trier of fact would have
entertained a reasonable doubt as to his
guilt of murder in the first degree. Thus,
the court concludes that petitioner has
suffered a fundamental miscarriage of justice
in that a constitutional violation,
ineffective assistance of counsel, has
probably resulted in the conviction of
petitioner of murder in the first degree when
he is actually innocent of that crime and
guilty of murder in the third degree.
Id. at 216.
The court ordered an evidentiary hearing to decide
Glass' habeas petition on its merits. Petitioner called three
expert witnesses, two of whom would have been available to
testify in 1976. Respondents called one. All of the witnesses
testified that there was sufficient information in the mental
health literature about PTSD that the condition could have been
diagnosed and presented at Glass' trial. Moreover, all testified
that Glass indeed suffered from PTSD at the time of the murder.
They differed, however, in their opinions whether Glass was in a
dissociative state that impaired his ability to deliberate or
premeditate, making him innocent of first-degree murder.
Petitioner's experts testified that Glass was in such a state;
respondents' expert was unable to reach a conclusion without
further testing.
6
The district court found that petitioner was prejudiced
at trial because counsel failed to pursue a diminished capacity
defense, and that Attorney Denker unreasonably failed to
investigate facts indicating the possibility of such a defense.
It accordingly concluded that trial counsel was ineffective and
granted the writ.
II.
After the initial briefing in this appeal, the Supreme
Court handed down its decision in Schlup, which concerned the
standard for actual innocence claims. We requested that the
parties submit supplemental briefs on the question of whether a
diminished capacity defense--which goes to the degree of guilt
rather than factual guilt--can state an actual innocence claim in
light of Schlup. Schlup itself does not determine that issue.
In Schlup, a prison inmate was charged with murdering a
fellow inmate. He was convicted of first-degree murder and
sentenced to death. Schlup's habeas petition alleged that his
counsel was ineffective and that the prosecution had improperly
withheld evidence from him. He argued that he was factually
innocent, but nonetheless was found guilty as a result of these
constitutional errors. The Supreme Court established a strict
test for claims of actual innocence.
The . . . habeas petitioner [must] show
that a constitutional violation has probably
resulted in the conviction of one who is
actually innocent. To establish the
requisite probability, the petitioner must
show that it is more likely than not that no
reasonable juror would have convicted him in
the light of the new evidence. The
petitioner thus is required to make a
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stronger showing than that needed to
establish prejudice. . . .
Id. at 867 (emphasis added, citations and internal quotation
marks omitted). The Court continued:
The meaning of actual innocence . . .
does not merely require a showing that a
reasonable doubt exists in the light of the
new evidence, but rather that no reasonable
juror would have found the defendant guilty.
It is not the district court's independent
judgment as to whether reasonable doubt
exists that the standard addresses; rather
the standard requires the district court to
make a probabilistic determination about what
reasonable, properly instructed jurors would
do. Thus, a petitioner does not meet the
threshold requirement unless he persuades the
district court that, in light of the new
evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a
reasonable doubt.
Id. at 868.
The district court, without the benefit of the Supreme
Court's opinion in Schlup, and relying on the earlier actual
innocence cases of Murray v. Carrier, 477 U.S. 478, 106 S. Ct.
2639 (1986), and Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct.
2616 (1986), held that petitioner need only show "a fair
probability that a trier of fact would have entertained a
reasonable doubt as to his guilt of murder in the first degree."
860 F. Supp. at 216. It additionally found that Glass "would
have chosen a diminished capacity defense based on his PTSD if he
had been fully informed." Id. at 215. Because it found a fair
probability that a trier of fact would have entertained a
reasonable doubt as to his guilt, the court concluded that Glass
had satisfied the requirements for an actual innocence claim.
8
The Supreme Court has not decided whether the actual
innocence test is applicable in a noncapital case when there is
evidence that defendant committed the crime but argues that he or
she was responsible for a lesser degree of guilt. For purposes
of this opinion, we will assume arguendo that the actual
innocence test applies. Nonetheless, we cannot conclude under
the Schlup test that petitioner has shown that it is more likely
than not that no rational juror would have voted to convict
Glass. Therefore, petitioner's actual innocence claim is doomed
under the Schlup standard.
The gravamen of Glass' psychiatric evidence was that he
was suffering from PTSD and was in a dissociative state at the
time of the murder, having no intent to kill and no recollection
of the murder after it happened. These psychiatric opinions,
however, were based entirely on Glass' subjective reporting and
were arrived at years after the crime. On the other hand, there
was evidence that Glass went to the murder scene armed and that
he had earlier behaved violently towards the victim. Moreover,
when arrested, Glass did not give the police the explanation he
now proffers--that he had no memory of what happened--but relied
instead on an alibi that he was not even at the scene when the
killing occurred. Based on this record we cannot conclude that
no rational juror would have voted to convict Glass of first-
degree murder.
Accordingly, petitioner has not made out a claim of
actual innocence. His habeas petition is therefore barred, and
we will reverse the judgment of the district court.
9