author: RAYMOND J. BRODERICK, District Judge.

text:
    Samuel ROSS v. Thomas FULCOMER, et al.
    Civ. A. No. 84-5774.
    United States District Court, E.D. Pennsylvania.
    May 1, 1985.
    On Motion for Reconsideration June 4, 1985.
    Samuel Ross, pro se.
    Andrew Rogoff, Asst. Dist. Atty., Philadelphia, Pa., for respondents.
   MEMORANDUM AND ORDER

RAYMOND J. BRODERICK, District Judge.

Petitioner Samuel Ross, currently confined at the State Correctional Institution at Huntingdon, Pennsylvania, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. United States Magistrate Peter B. Scuderi, to whom the petition was referred for a report and recommendation, has recommended dismissing the petition for failure to exhaust state remedies. Ross has objected to Magistrate Scuderi’s report and recommendation, contending that he has exhausted his state remedies and requesting a determination of the merits of his petition. After careful consideration of the Magistrate’s report and the record in this ease, the Court has, for the reasons set forth below, determined that Ross has satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) with respect to all of the claims raised in his petition. This Court thus will not dismiss this petition for failure to exhaust state remedies, but will refer the matter back to Magistrate Scuderi for further proceedings not inconsistent with 28 U.S.C. § 636, including a report and recommendation on the merits of the claims raised in this petition.

History

Ross was convicted of attempted rape and robbery in the Court of Common Pleas of Philadelphia County in 1977. He was sentenced to a two-to-ten year term on the robbery conviction and a concurrent two-to-twelve year term on the attempted rape conviction. He filed a post-trial motion for a new trial in the Court of Common Pleas, alleging that (1) the Pennsylvania Rape Shield Law, 18 Pa.Cons.Stat.Ann. § 3104, is unconstitutional; (2) the prosecution intentionally failed to disclose, prior to trial, an allegedly incriminating statement made by Ross to the police (prior to his arrest) while he was in a “delirious” condition, which statement was admitted against him at trial; (3) certain “inflammatory” remarks made by the prosecutor at trial constituted gross misconduct and deprived Ross of a fair trial; and (4) the prosecutor improperly informed the jury that Ross was in custody during the trial. Ross’ motion for a new trial was denied. Ross appealed to the Pennsylvania Superior Court, raising the same four grounds. He also claimed, in connection with his allegation of prosecutorial misconduct, that the Commonwealth had failed to provide a full and complete transcript with which he could document other allegedly prejudicial remarks of the prosecutor which allegedly were not made a part of the trial record. The Superior Court affirmed his conviction and sentence. Commonwealth v. Ross, 285 Pa.Super. 622, 427 A.2d 1220 (1980).

Ross did not petition the Pennsylvania Supreme Court for allocatur immediately after his conviction was affirmed by the Superior Court in 1980. In 1983, he filed a pro se petition for a writ of habeas corpus in this Court. Ross v. Fulcomer, No. 83-900 (E.D.Pa.1983). In that petition, he raised the same grounds for relief as he had raised in his post-trial motion and in his appeal to the Superior Court. He also alleged that he had been unable to file a timely petition for allocatur in the Pennsylvania Supreme Court because his appellate counsel had failed to inform him of the Superior Court’s decision and that he did not become aware of that decision until long after the time period for filing a petition for allocatur had expired. In an Order dated December 27, 1983, this Court approved the report and recommendation of Magistrate Scuderi and dismissed Ross’ habeas petition for failure to exhaust state remedies. Ross was directed to file a petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court.

In March of 1984, Ross filed a pro se petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court. In that petition he raised all of his claims which he had raised in his post-trial motion, his appeal to the Superior Court, and his federal habeas corpus petition. In addition, he alleged that his trial counsel had been ineffective in failing to object to certain of the prosecutor’s allegedly prejudicial remarks. Finally, he alleged that his petition for allocatur was untimely because his appellate counsel had been ineffective in failing to advise him of the Superior Court’s decision and in failing to preserve his right to file a timely petition for allocatur. On June 29, 1984, the Pennsylvania Supreme Court dismissed Ross’ petition for allocatur nunc pro tunc “without prejudice to petitioner’s rights under the Post-Conviction Hearing Act” (PCHA) (42 Pa.Cons.Stat.Ann. § 9541 et seq.).

On August 23, 1984, Ross filed a second petition for a writ of habeas corpus in this Court. Ross v. Fulcomer, No. 84-4036 (E.D.Pa.1984). He noted that he had, as directed by the Court in his first habeas petition, filed a petition for allocatur nunc pro tunc, which the Pennsylvania Supreme Court had denied without prejudice to his rights under the PCHA. He raised in the second habeas petition all of the issues he had raised in his first habeas petition. However, he also included allegations of ineffective assistance of trial and appellate counsel, which issues were not raised in his direct appeal. In a Memorandum and Order dated October 29, 1984, this Court observed that “as to the issues raised in the Superior Court on direct appeal, it would appear that petitioner has exhausted his state remedies” in view of the Pennsylvania Supreme Court’s disposition of his petition for allocatur nunc pro tunc. Ross v. Fulcomer, No. 84-4036, slip op. at 1-2 (E.D.Pa.1984). However, in view of the fact that this second habeas petition included claims of ineffective assistance of counsel that were not presented to the state court in his post-trial motion or on direct appeal, the Court determined that his petition would again be dismissed because of the inclusion of those unexhausted claims, pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Court stated that “Petitioner may either drop the unexhausted claims and proceed solely on the exhausted grounds, or he may wish to exhaust all his claims in the state courts under the Post-Conviction Hearing Act before returning to federal court.” Ross v. Fulcomer, No. 84-4036, slip op. at 2 (E.D.Pa.1984).

Ross then filed this present petition — his third federal habeas petition — on November 26, 1984, raising only those issues which he presented to the Superior Court on direct appeal. Ross v. Fulcomer, No. 84-5774 (E.D.Pa.1984). He has not included any allegations of ineffective assistance of counsel. The Magistrate nevertheless has recommended that this petition again be dismissed for failure to exhaust state remedies. The Magistrate reasoned that Ross did not “fairly present” his claims to the Pennsylvania Supreme Court in his petition for allocatur nunc pro tunc because his petition included claims of ineffective assistance of counsel, and that the general practice of the Pennsylvania Supreme Court with respect to such claims which were not raised on direct appeal is to dismiss the petition without prejudice to the petitioner’s right to proceed under the PCHA. The Magistrate also noted that Ross had failed to follow the order of the Pennsylvania Supreme Court directing him to an available state remedy, i.e., a PCHA petition. This Court must, therefore, review the exhaustion requirement of 28 U.S.C. § 2254 as applicable to the circumstances of this case.

Exhaustion

A petitioner for a writ of habeas corpus in the federal court bears the burden of showing that all of his claims were fairly presented to the highest state court, so that it had the opportunity to rule on the “substantial equivalent” of each of the claims presented to the federal court. Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42 (3d Cir.1984); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir.1982). The exhaustion requirement of 28 U.S.C. § 2254(b)-(c) “has been judicially interpreted to mean that claims must have been presented to the state courts; they need not have been considered or discussed by those courts.” Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir.1984), citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Thus, if a claim is actually presented to the highest state court — for example, in the petitioner’s brief — exhaustion does not require that the state court actually ruled on the merits of the claim. Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978); Swanger v. Zimmerman, 750 F.2d at 291. Indeed, even where the state court expressly did not consider the merits of a claim on the ground that it was deemed waived as a result of a procedural default, the claim must be considered to be exhausted if presented to the state court. See Swanger v. Zimmerman, 750 F.2d at 296 n. 8. Furthermore, the Third Circuit has determined that “[a] denial of allocatur ... or a similar refusal to entertain an appeal constitutes a sufficient presentation for purposes of exhaustion.” United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 n. 11 (3d Cir.1975). Finally, it is well-settled in this Circuit that a habeas petitioner who has presented all of his claims to the Pennsylvania Supreme Court need not also exhaust his remedies under the PCHA. Swanger v. Zimmerman, 750 F.2d at 295; Codispoti v. Howard, 589 F.2d 135 (3d Cir.1978); United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir.1971).

In the present case, the Magistrate reasoned that although all of Ross’ grounds for relief in this habeas petition had been presented to the Pennsylvania Supreme Court, they had been presented in a “procedurally defective manner” which had prevented that court from ruling on their merits. The Magistrate decided that the inclusion of an ineffective assistance of counsel claim required the Pennsylvania Supreme Court, in accordance with its general practice, to refer Ross to his remedies under the PCHA. It appears that in cases where a defendant files an untimely appeal or a petition for allocatur nunc pro tunc, alleging that counsel’s ineffectiveness was responsible for the untimeliness of the appeal or petition, the Pennsylvania appellate courts generally dismiss or deny such appeals or petitions without prejudice to the petitioner’s right to file a petition under the PCHA, wherein the petitioner could raise his ineffective assistance of appellate counsel claim and request the PCHA court to grant him leave to file an appeal or an allocatur petition nunc pro tunc. See generally Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). However, there have been cases where a defendant has alleged (by way of explaining the untimeliness of his petition for allocatur) that his counsel failed to advise him of the disposition of his direct appeal, and the Pennsylvania Supreme Court apparently has reviewed the petition without regard to its untimely filing. See McClendon v. Jeffes, 578 F.Supp. 115 (E.D.Pa.1983). Indeed, it cannot be determined with certainty the extent to which any denied petition for allocatur — timely or untimely — was reviewed “on the merits.” In the present case, it is impossible to determine whether the Pennsylvania Supreme Court’s brief reference to Ross’ PCHA rights was directed to his claims of ineffective assistance of counsel, the claims he raised in his direct appeal, or some combination of those claims.

In Moore v. Fulcomer, No. 84-5036, slip op. (E.D.Pa. February 5, 1985), a state prisoner seeking a writ of habeas corpus in the federal court had, like Ross, filed an untimely petition for allocatur in the Pennsylvania Supreme Court, alleging that his appellate counsel had been ineffective in failing to inform him of the Superior Court’s decision. In Moore, as in this case, the Pennsylvania Supreme Court had denied Moore’s untimely petition for allocatur without prejudice to his right to seek relief under the PCHA. In Moore, as in this case, all of the claims raised in the habeas petition also had been raised in the petition for allocatur. Judge Poliak of this Court determined that (1) the Pennsylvania Supreme Court's denial of allocatur “without prejudice” constituted a sufficient presentation of Moore’s claims to the highest state court for the purposes of the habeas exhaustion requirement, and (2) that Moore was not required to pursue any further remedies under the PCHA. Moore v. Fulcomer, supra, slip op. at 4.

All of the claims raised by Ross in this habeas petition were presented to the Superior Court and to the Pennsylvania Supreme Court in his petition for allocatur. He has filed two previous petitions for a writ of habeas corpus in this Court, and after the dismissals of each of those two petitions, he dutifully attempted, without the benefit of counsel, to comply with this Court’s directions. It would be fundamentally unfair to now require him to return once again to the state court to commence a PCHA proceeding, apparently with respect to an isolated claim of ineffective assistance of counsel (a claim he is not pressing before this Court), solely in order to seek leave to file another petition for allocatur nunc pro tunc in which he may again present his claims to the Pennsylvania Supreme Court. Such a requirement would consume months of additional and unnecessary litigation. Furthermore, it must be noted that many petitioners for habeas relief in the federal court who have failed to present any petition for allocatur to the Pennsylvania Supreme Court have been deemed to have exhausted their state remedies (because filing a petition for allocatur nunc pro tunc was determined to be futile), and have received a review of the merits of their habeas petitions so long as there is no evidence in the record that their failure to present their claims to the Pennsylvania Supreme Court was a “deliberate by-pass” of the appellate process. See, e.g., Thomas v. Zimmerman, 583 F.Supp. 701 (E.D.Pa.1984); Almeida v. Jeffes, 566 F.Supp. 852 (E.D.Pa.1983); Choice v. Pennsylvania Board of Parole, 448 F.Supp. 294 (M.D.Pa.1977); cf. Beaty v. Patton, 700 F.2d 110 (3d Cir.1983). It would be anomalous for the federal courts to review the merits of the claims of those petitioners who never sought review from the Pennsylvania Supreme Court while declining to review (on the basis of an indeterminate one line per curiam order from the Pennsylvania Supreme Court) the claims of petitioners like Ross, who have presented their claims to Pennsylvania’s Superior and Supreme Courts.

The exhaustion requirement is a rule of comity “designed to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoner’s federal rights.” Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971), quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848 (1963). The state courts have been given that opportunity with respect to all of the claims Ross raises in this petition. The “mere possibility of success in additional [state] proceedings” does not bar federal review of claims which already have been presented to all the state appellate courts. Codispoti v. Howard, 589 F.2d at 142 (citations omitted). If the Pennsylvania Supreme Court did not reach the merits of Ross’ claims because his pro se petition was procedurally defective, an issue of waiver, rather than a failure of exhaustion, is presented. As the Third Circuit has emphasized, “it is the legal issues that are to be exhausted, not the petitioner.” United States ex rel. Geisler v. Walters, 510 F.2d at 893. This Court has determined that Ross has satisfied the exhaustion requirement of 28 U.S.C. § 2254, and need not return to the state court to pursue a PCHA remedy.

Waiver

In its response to Ross’ petition for a writ of habeas corpus, the Commonwealth contends if Ross’ claims are deemed to be exhausted, this Court nevertheless may not review the merits of those claims because Ross’ apparent failure to obtain a review of the merits of his claims by the Pennsylvania Supreme Court constitutes a “procedural default” which precludes federal review of those claims. Assuming that the Pennsylvania Supreme Court did not reach the merits of the claims raised in this habeas petition because his petition for allocatur was procedurally defective, Ross nevertheless will not be barred from raising those claims in this Court absent a showing that his “default” was a “deliberate bypass” of the appellate procedure. See Beaty v. Patton, 700 F.2d at 113, citing Wainwright v. Sykes, 433 U.S. 72, 91-94, 97 S.Ct. 2497, 2508-2510, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring). In this case, especially given Ross’ efforts to seek a review of his claims in both state and federal court, this Court has determined that there is no basis in the record from which it could find that Ross’ failure to receive a review of the merits of his claims by the Pennsylvania Supreme Court constituted a deliberate bypass of that appellate procedure. See Moore v. Fulcomer, No. 84-5036, slip op. at 4 n. 1 (E.D.Pa. February 5, 1985); Thomas v. Zimmerman, 583 F.Supp. at 705; Almeida v. Jeffes, 566 F.Supp. at 854.

Finally, the Court notes that the Superior Court did not consider Ross’ claim that the Pennsylvania Rape Shield Law is unconstitutional because Ross’ appellate counsel apparently did not notify the Attorney General of Pennsylvania that he was challenging the constitutionality of the statute, as required by Pa.R.App.P. 521. See Commonwealth v. Ross, No. 621 October Term, 1978, slip op. at 14 (Superior Court 1980). Ross’ statutory claim was raised at trial, and also was raised and briefed in Ross’ post-trial motions and in his appeal. Because the failure to comply with Pa.R.App.P. 521 involves a procedural default in connection with an appellate proceeding, and because in fact the issue was raised in the appeal, the “deliberate bypass” waiver standard applies. See Diggs v. United States, 740 F.2d 239, 244 (3d Cir.1984); Beaty v. Patton, 700 F.2d at 113; cf. United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 440-43 (3d Cir.1982). Again, there is no basis in this record from which this Court could conclude that the failure to notify the Commonwealth’s Attorney General of the existence of the constitutional challenge to the statute could in any way be deemed a deliberate bypass of the appellate procedure, and indeed the Commonwealth does not contend that the non-compliance with Pa.R. App.P. 521 constitutes a waiver of that claim in this Court.

For all the reasons set forth above, this Court has determined that Ross has exhausted his state remedies with respect to all of the issues raised in this petition for a writ of habeas corpus, and that he has not waived any of those claims for purposes of federal review. Accordingly, this matter will be referred back to Magistrate Scuderi for further proceedings not inconsistent with 28 U.S.C. § 636, including a report and recommendation on the merits of the claims.

ON MOTION FOR RECONSIDERATION

This is a pro se petition for a writ of habeas corpus filed by Samuel Ross. In a Memorandum and Order dated May 1, 1985 this Court determined that Ross had exhausted his available state remedies and referred the case back to United States Magistrate Peter B. Scuderi for consideration of the merits of the petition. The District Attorney of Philadelphia County (respondent) has filed a motion for reconsideration of this Court’s determination of the exhaustion issue, requesting the Court to vacate its Order of May 1, 1985. After reconsideration of the matter, for the reasons set forth below, the Court will deny respondent’s motion to vacate its Order of May 1, 1985.

The procedural history of this action in both the state and federal courts is set forth at length in the Court’s Memorandum of May 1, 1985, and will only be summarized here. Following his conviction in the Court of Common Pleas of Philadelphia County in 1977 for robbery and attempted rape, Ross filed a post-trial motion for a new trial in the Court of Common Pleas, raising four legal claims in support of his motion for a new trial. The motion was denied. Ross then appealed his conviction to the Pennsylvania Superior Court, raising the same four legal claims. His appeal was denied in 1980. In 1983, Ross filed a pro se petition for a writ of habeas corpus in this Court, raising the same four legal issues. That petition was dismissed for failure to exhaust state remedies, and Ross was directed to file a petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court, in order to provide that court with the opportunity to review the merits of his claims.

Ross filed a pro se petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court in 1984, raising the same claims as he had raised in his direct appeal. He also alleged that his petition for allocatur was untimely because his appellate counsel had been ineffective in failing to preserve his right to file a timely petition for allocatur. The Pennsylvania Supreme Court dismissed Ross’ petition for allocatur nunc pro tunc “without prejudice to petitioner’s rights under the Post-Conviction Hearing Act” (PCHA) (42 Pa.Cons.Stat. Ann. § 9541 et seq.).

Ross then filed a second petition for a writ of habeas corpus in this Court, raising the same four legal issues as he had raised in his post-trial motion, his direct appeal, and his petition for allocatur nunc pro tunc. However, he also raised claims of ineffective assistance of counsel which had not been presented in his post-trial motion or on direct appeal. In a Memorandum and Order dated October 28, 1984, this Court observed that “as to the issues raised in the Superior Court on direct appeal, it would appear that petitioner has exhausted his state remedies” in view of the Pennsylvania Supreme Court’s disposition of his petition for allocatur nunc pro tunc. Ross v. Fulcomer, No. 84-4036, slip op. at 1-2 (E.D.Pa.1984). However, in view of the fact that this second habeas petition included claims of ineffective assistance of counsel that were not presented to the state court in his post-trial motion or on direct appeal, the Court determined that his petition would again be dismissed because of the inclusion of those unexhausted claims, pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Court stated that “Petitioner may either drop the unexhausted claims and proceed solely on the exhausted grounds, or he may wish to exhaust all his claims in the state courts under the Post-Conviction Hearing Act before returning to federal court.” Ross v. Fulcomer, No. 84-4036, slip op. at 2 (E.D.Pa.1984). Ross thereupon filed this present petition — his third federal habeas petition — raising only those four issues which he presented to the Superior Court on direct appeal. He has not raised any claims of ineffective assistance of counsel in this habeas petition.

The respondent contends that Ross has not exhausted his state remedies because the legal claims raised in this petition were not “fairly presented” to the Pennsylvania Supreme Court in his petition for allocatur nunc pro tunc. The respondent contends that the Pennsylvania Supreme Court was unable to review the merits of Ross’ legal claims prior to a determination (by a PCHA court) of Ross’ ineffective assistance of appellate counsel claim. According to the respondent’s interpretation of the Pennsylvania Supreme Court’s one-line dismissal of Ross’ petition for allocatur, Ross must file a PCHA petition to litigate his ineffective assistance of appellate counsel claim. If he proves successful on that claim in the PCHA court, he will be granted leave to file another petition for allocatur nunc pro tunc with the Pennsylvania Supreme Court, which would be considered to be timely filed. Of course, there is no assurance that this petition for allocatur would be granted and reviewed “on the merits.” However, a denial of allocatur is a sufficient “presentation” of claims to the Pennsylvania Supreme Court for purposes of exhaustion, and the respondent contends that it is not until the Pennsylvania Supreme Court has had the opportunity to grant or deny Ross’ petition for allocatur, after the PCHA court has resolved Ross’ ineffective assistance of appellate counsel claim, that Ross’ state remedies will be fully exhausted.

As pointed out in the Court’s Memorandum of May 1, 1985, the meaning and intent of the Pennsylvania Supreme Court’s dismissal without prejudice to Ross’ PCHA rights is by no means clear. Memorandum of May 1, 1985 at 8; see also Moore v. Fulcomer, No. 84-5036, slip op. at 6-8 (E.D.Pa. May 10, 1985). If the Pennsylvania Supreme Court intended to decline review of Ross’ claims but to indicate that its denial of allocatur should not bar consideration of Ross’ challenges to his conviction under the PCHA, then it is clear that Ross has exhausted his state remedies because a federal habeas petitioner who has presented all of his claims to the Pennsylvania Supreme Court need not also pursue a “second round” of state court review by way of the PCHA. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir.1984); Moore v. Fulcomer, supra, slip op. at 10. Assuming, however, (as respondent contends) that the Pennsylvania Supreme Court’s Order should be interpreted to mean that the Supreme Court will consider a nunc pro tunc petition for allocatur after Ross has pursued his ineffective assistance of counsel claim through the PCHA, the issue presented is whether Ross must exhaust that avenue of relief prior to filing his federal habeas petition. This Court remains convinced that under the circumstances of this case, particularly in light of the Court’s previous instructions to Ross,

It would be fundamentally unfair to ... require [Ross] to return once again to the state court to commence a PCHA proceeding, apparently with respect to an isolated claim of ineffective assistance of counsel (a claim he is not pressing before this Court), solely in order to seek leave to file another petition for allocatur nunc pro tunc in which he may again present his claims to the Pennsylvania Supreme Court.

Memorandum of May 1, 1985, at 9-10. Moreover, as Judge Poliak of this Court recently has held under virtually identical circumstances, “[t]o require pursuit of necessarily lengthy remedies on the question of ineffective assistance of appellate counsel to obtain a delayed direct appeal and ultimately arrive at the steps of the federal court would seem to disrespect [petitioner’s constitutional] claims while inflating the exhaustion requirement beyond proper bounds.” Moore v. Fulcomer, supra, slip op. at 16.

In its motion for reconsideration the respondent relies upon Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944) and Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975), for the proposition that a federal habeas petitioner must present his claims to the state courts in “reviewable” form to satisfy the exhaustion requirement. However, in Hawk and Pitchess the federal habeas petitioners had failed to secure any review of the merits of their federal claims by any state appellate courts. In Pitchess, the petitioner’s federal claims were presented in a pretrial motion, the denial of which the petitioner sought to review prior to trial by means of unsuccessful extraordinary writs filed in the state appellate courts. In Hawk, the petitioner’s only effort to secure a state court review of his federal claims was through a state habeas corpus action erroneously filed with the state Supreme Court. In contrast, the issues presented by Ross in the present habeas petition were analyzed by the trial court and the Superior Court, and were included in the brief submitted to the Pennsylvania Supreme Court. Thus the state courts have been presented with the “ ‘opportunity to pass upon and correct’ alleged violations” of Ross’ federal rights. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971), quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). Clearly the comity concerns underpinning the exhaustion requirement have been satisfied by Ross in this case, and this Court accordingly has determined that Ross need not pursue further state court remedies through the PCHA.

Waiver

The respondent also contends in its motion for reconsideration that Ross’ apparent failure to secure a review “on the merits” from the Pennsylvania Supreme Court constitutes a “procedural default” which precludes federal review of his claims. Assuming that the Pennsylvania Supreme Court did not reach the merits of the claims raised in this habeas petition because Ross’ petition for allocatur was untimely, he nevertheless will not be barred from raising those claims in this Court absent a showing that his “default” was a “deliberate bypass” of the appellate procedure. See Beaty v. Patton, 700 F.2d 110, 113 (3d Cir.1983), citing Wainwright v. Sykes, 433 U.S. 72, 91-94, 97 S.Ct. 2497, 2508-2510, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring). In his pro se petition for allocatur nunc pro tunc, Ross stated that his appellate counsel “abandoned” him, failed to notify him of the Superior Court’s decision, and failed to take “the simple steps on petitioner’s behalf [necessary] to preserve and protect petitioner’s timely appeal rights.” In its motion for reconsideration the respondent has attached a copy of a letter purportedly sent to Ross by his appellate counsel in which counsel informed Ross that (1) Ross’ conviction was upheld by the Superior Court, (2) Ross had thirty days to file a petition for allocatur with the Pennsylvania Supreme Court, and (3) he (counsel) could no longer represent Ross. Assuming that Ross received this letter, there still is no evidence from which the Court could conclude that Ross “deliberately bypassed” his appellate rights. Indeed, the letter supports Ross’ contention that he was “abandoned” by his appellate counsel (in apparent violation of Pa.R.Crim.P. 316(c)(iii), which provides that assignment of counsel “shall be effective until final judgment, including all proceedings on direct appeal,” see Commonwealth v. Hick-ox, 433 Pa. 144, 249 A.2d 777 (1969) (assignment includes petition to Pennsylvania Supreme Court)).

The United States Supreme Court has defined the “deliberate bypass” test as follows:

The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461— “an intentional relinquishment or abandonment of a known right or privilege”— furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits ... At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner.

Fay v. Noia, 372 U.S. 391, 440, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963) (citation omitted). As noted in this Court’s prior Memorandum, “in this case, especially given Ross’ efforts to seek a review of his claims in both state and federal court, ... there is no basis in the record from which [the Court] could find that Ross’ failure to receive a review of the merits of his claims by the Pennsylvania Supreme Court constituted a deliberate bypass of that appellate procedure.” Memorandum of May 1, 1985, at 12.

For all of the reasons set forth above, the Court has determined that the respondent’s motion to vacate the Court’s Order of May 1, 1985 will be denied.


source: Caselaw Access Project

author: PEREZ-GIMENEZ, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America v. Jose Luis Lebron GONZALEZ, et al.
    Cr. No. 84-418(PG).
    United States District Court, D. Puerto Rico.
    May 6, 1985.

      See also, D.C., 610 F.Supp. 574.

      Guillermo Gil, Dana Biehl, Washington, D.C., for the U.S.
    James Toro, San Juan, P.R., Blas Herrero, Hato Rey, P.R., for defendants.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

Defendants José Luis Lebrón González, Raymond Cátala Fonfrias, Ernesto Gil Anzola Martínez, Emeterio Ortiz Ortiz and Eduardo Rodríguez Parrilla have been indicted for violations to 18 U.S.C. §§ 241, 242 and 2, for conspiring in a series of concerted activities to prevent Griselle González Ortiz (Jessica) from testifying at the trial of José Luis Lebrón González and which led to the shooting and killing of said Griselle González Ortiz.

It is alleged that the defendants charged in this case participated in a conspiracy to cover up their participation in the murder of Jessica.

It is well established that the joint trials of persons charged together with committing the same offense as with being accessory to its commission are the rule rather than the exception. U.S. v. Archer, 733 F.2d 354 (5th Cir.), cert. denied, — U.S. -, 105 S.Ct. 196, 83 L.Ed.2d 128 (1984); Parker v. U.S., 404 F.2d 1193, 1196 (9th Cir.1968), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782, reh. denied, 395 U.S. 941, 89 S.Ct. 2003, 23 L.Ed.2d 460 (1969).

Especially in conspiracy cases, parties who are jointly indicted should be tried together, U.S. v. Wilson, 657 F.2d 755, 765 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982), and severance is not warranted despite the fact that a defendant may have participated in only one single aspect of the conspiracy. U.S. v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982). The rule has a major and well recognized exception, and it is that separate trials are required when incriminating out-of-court statements of co-defendants admissible against the declarant but not against the co-defendants would be presented in evidence.

On February 22, 1985, the prosecution moved the Court to select two juries to try the instant case and to seat them simultaneously. The motion is grounded on the fact that there is evidence which is admissible against some defendants but not against others. This evidence consists of three taped conversations between Emeterio Ortiz Ortiz and Raymond Cátala allegedly discussing their participation in the murder and in the cover up of the murder.

These three tapes also record the participation in the murder and in the cover up conspiracy of co-defendants Arzola, Lebrón González and Rodríguez Parrilla, who were not present at the meetings when the conversations were recorded.

There are also tapes of two conversations between Emeterio Ortiz Ortiz and Eduardo Rodríguez Parrilla discussing their participation in the murder of Jessica, as well as the participation of other defendants in the matter, who were not present when the conversations were recorded.

In the case of Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) the Supreme Court of the United States held that a statement of a non-testifying co-defendant cannot be admitted if it powerfully incriminates the complaining defendant since this violates his right of cross-examination secured by the confrontation clause of the Sixth Amendment.

The government moves for the dual jury alleging two basic reasons. First, the government points to an alleged break in time pointing that there was a period in excess of two years prior to the dates when these tape recorded conversations took place and wherein the Government’s current evidence does not show any activity to either the murder or the cover up of that murder. The government is thus aware that due to this break in time it might be difficult to show that these conversations are in furtherance of the charged conspiracy to obstruct, injure and oppress the constitutional rights of Jessica.

The government accordingly suggests the two juries, one for Raymond Cátala and Edgardo Rodríguez Parrilla, and the second jury for all remaining defendants. In accordance with this arrangement the second jury would be excused for those brief portions of trial where evidence prejudicial to the remaining defendants but admissible only against Cátala and Rodriguez is to be presented. It is contended that this is a proper method to resolve the problem when evidence is admissible against some defendants but not against others.

The use of the dual jury, although novel before this Court, has nevertheless been used as an effective tool to solve problems similar to the ones described herein.

The procedure is not to be condemned based on novelty alone since “fair new procedures which tend to facilitate proper fact finding are allowable although not traditional.” Byrne v. Matczak, 254 F.2d 525, 529 (3rd Cir.1958), cert. denied, 358 U.S. 816, 79 S.Ct. 24, 3 L.Ed.2d 58 (1958) (citations omitted). The ‘spectre of risks’ should not deter courts from implementing innovative and resource saving procedures. U.S. v. Lewis, 716 F.2d 16, 19 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 492, 78 L.Ed.2d 686 (1983). The double jury has been adopted among other reasons as an economy measure, and “as long as the procedure comports with the ethos of due process commanded by the rules of criminal justice” there should be no reason for its rejection. U.S. v. Lewis, supra. Four circuits have held that double jury procedure is not a violation of due process. The procedure is to be sustained as long as the defendant enjoys the rights given by the Constitution, the Sixth Amendment, and the rules. U.S. v. Sidman, 470 F.2d 1158, 1169 (9th Cir.1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973).

The lack of statutory basis does not demonstrate a lack of due process. Smith v. De Robertis, 758 F.2d 1151 (7th Cir., March 27, 1985).

The procedure has been used and upheld in cases where a Bruton problem was present and the court refused to sever defendants and to try them severally. See, U.S. v. Lewis, supra.

In a case with facts similar to ours, U.S. v. Mailon Paul Wood, Cr. No. 84-232A-1, Charles A. Moye, Jr., District Judge of the Northern District of Georgia utilized and ordered the multiple jury procedure to avoid a Bruton problem “in the event that the court admits into evidence tape recorded post-conspiracy admissions of co-defendants” (Order of October 17, 1984).

Allegations based on a generalized possibility of harm are not sufficient to defeat a motion since careful instruction by the judge would eradicate any possible carryover of guilt from one defendant to the other. U.S. v. Hayes, 676 F.2d 1359, 1366-67 (11th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 455, 74 L.Ed.2d 608 (1982).

The government’s motion has been opposed by co-defendants Eduardo Rodriguez Parrilla and Raymond Cátala. Both co-defendants request a severance.

In his opposition of April 10, 1985, co-defendant Eduardo Rodríguez Parrilla moves the Court for suppression of the tapes between Cátala and Ortiz against him and opposes the government’s request that a same jury try him and co-defendant Cátala. Rodríguez Parrilla filed on the same day a motion for severance alleging that it would be impossible for the jury to decide the case without considering the inadmissible evidence.

Although co-defendant Rodríguez Parrilla was not present during the meeting between co-defendant Cátala and Ortiz there are tapes of conversations between himself and Ortiz.

There is independent evidence as to each Cátala and Rodríguez Parrilla. The tapes are directed to demonstrate the involvement of each as to the crucial facts in the scheme. In this respect we can say that their statements “interlock”. In Parker v. Randolph, 442 U.S. 62, 72, 99 S.Ct. 2132, 2138, 60 L.Ed.2d 713 (1979) the Supreme Court held that “interlocking confessions” did not infringe respondent’s right of confrontation secured by the Sixth and Fourteenth Amendments to the United States Constitution.

Although Parker, supra, deals with confessions, and co-defendant Rodríguez Parrilla makes a point out of this, yet we cannot say that as to each defendant the tapes do not constitute a knowledgeable source of information concerning the particular co-defendant’s source of information about his past conduct, Parker, supra. If admitted, we can say that these are source of incriminating statements which “interlock”.

However, the Bruton rule is not violated when co-defendants’ confessions are so similar that the two statements interlock. Parker v. Randolph, supra, at 75, 99 S.Ct. at 2140.

Cases interpreting Parker v. Randolph, supra, have held that to guard against improper considerations against a co-defendant of a statement received in evidence as an exception to the Bruton rule the Court may use limiting instructions. U.S. v. Paternina-Vergara, 749 F.2d 993, 998-999 (2d Cir.1984); US. v. Astling, 733 F.2d 1446,1454-1455 (11th Cir.1984); Tamilio v. Fogg, 713 F.2d 18, 20-21 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 706, 79 L.Ed.2d 170 (1984).

Furthermore, the Supreme Court has also ruled that relevant declarations or admissions of a conspirator made in the absence of the co-conspirator and not in furtherance of the conspiracy may be admissible in a trial for conspiracy as against the declarants’ participation therein. Lutwak v. U.S., 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed. 593 (1953).

However, the Court must be careful at the time of the admission and by its instructions to make it clear that the evidence is limited as against the declarant only. Lutwak, supra, at 618-619, 73 S.Ct. at 489-490.

In the instant case there are independent tapes as to each co-defendant; there is thus independent evidence as to each co-defendant. U.S. v. Cochran, 697 F.2d 600 (5th Cir.1983); U.S. v. Mackey, 571 F.2d 376, 383-384 (7th Cir.1978). Limiting instructions may suffice as protective of defendant. U.S. v. Mangan, 575 F.2d 32 (2d Cir), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 324 (1978).

Co-defendant Parrilla also raises the tapes inadmissibility under Rule 801(d)(2)(E) of the Federal Rules of Evidence.

Rule 801(d)(2)(E) provides:

(d) A statement is not hearsay if
He * * * * *
(2) The statement is offered against a party and is
He He He He He H<
(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

The doctrine that declarations of one conspirator may be used against another conspirator if the declaration was made during the course of and in furtherance of the conspiracy charged is a well-recognized exception to the hearsay rule (emphasis added) Anderson v. U.S., 417 U.S. 211, 218-219, 94 S.Ct. 2253, 2259-2260, 41 L.Ed.2d 20 (1974).

This allegation is made given the lapse of time between the death of Jessica and the recording of the conversation. It is settled that there can be no furtherance of a conspiracy that has ended. Lutwak v. U.S., supra, 344 U.S. at 618, 73 S.Ct. at 489. The established rule is that once the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment.

However, a part of the conspiracy may be an agreement among the conspirators to conceal the facts. U.S. v. Mackey, supra; U.S. v. Hams, 542 F.2d 1283, 1300-1301 (7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977).

The indictment in the instant case charges defendants with the conspiracy to cover up the events surrounding the shooting and killing of Jessica. In this way Grünewald v. U.S., 353 U.S. 391, 401-02, 77 S.Ct. 963, 972-73, 1 L.Ed.2d 931 (1957); Wong Sun v. U.S., 371 U.S. 471, 490, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963); Lutwak v. U.S., supra; Krulewitch v. U.S., 336 U.S. 440, 443-44, 69 S.Ct. 716, 718-719, 93 L.Ed. 790 (1949) must be distinguished.

At the same time the contention may be disposed of by a recent decision in which the Court of Appeals for the First Circuit held that as charged by the indictment a conspiracy may continue “so long as the conspirators were acting together to destroy incriminating evidence.” U.S. v. Alejo Maldonado Medina, 761 F.2d 12, 19 (1st Cir.1985). This is part of the charges before us.

Co-defendant Cátala makes no argument out of the distinction between confession and conversation as to limit the Parker decision on those grounds. Rather, in the light of Bruton v. US., supra, co-defendant Cátala opposes the government’s motion alleging that a trial in which a co-defendant’s extrajudicial confession is offered as evidence implicating another defendant violates the confrontation clause of the Sixth Amendment and that a severance is warranted under Rule 14 of the Federal Rules of Criminal Procedures.

It has been held that the confrontation clause of the Sixth Amendment is not violated by the admission at a joint trial of a co-defendant’s confession that interlocks, as is the case here, with a confession of a defendant. Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir.1982).

Courts have disposed of allegations relating to violations of the right to confront adverse witnesses ruling that no violations of rights exist under Bruton when there is independent evidence to establish guilt. U.S. v. Webb, 633 F.2d 1140, 1142 (5th Cir.1981). Thus, “when guilt of an accused is established beyond a reasonable doubt by his own confession a violation of Bruton constitutes harmless error.”

As mentioned before the plurality opinion in Parker v. Randolph, supra, 442 U.S. 62, 75, 99 S.Ct. 2132, 2140, 60 L.Ed.2d 713 (1979), suggests that a Bruton problem does not arise when interlocking statements by defendant himself has been properly admitted. See also, U.S. v. Campa, 679 F.2d 1006, 1011 (1st Cir.1982).

Accordingly, the admission of interlocking statements with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth amendments.

WHEREFORE, in view of the foregoing, the Court hereby GRANTS the Government’s motion for two juries and DENIES co-defendants’ motions for severance.

IT IS SO ORDERED.

      . Griselle González Ortiz, aka Jessica, was an eye witness to testify for the People of Puerto Rico in the murder case against Jose Luis Lebrón González, co-defendant herein, who was awaiting trial in the Superior Court of Puerto Rico, San Juan District.

      . These three tapes contain conversations between Ortiz and Cátala during meetings held on August 29, 1984, September 6, 1984, and September 8, 1984.

      . These two tapes contain conversations between Emeterio Ortiz Ortiz and Eduardo Rodríguez Parrilla during meetings held on August 17, 1984, and August 24, 1984.


author: PEREZ-GIMENEZ, District Judge.

text:
    UNITED STATES of America v. José Luis Lebrón GONZÁLEZ, et al.
    Cr. No. 84-418(PG).
    United States District Court, D. Puerto Rico.
    May 17, 1985.
    See also 610 F.Supp. 568.

      Guillermo Gil and Dana Biehl, Asst. U.S. Attys., Washington, D.C., for plaintiff.
    Blas C. Herrero, Wally de la Rosa, Julio Morales Sánchez, Wilfredo Figueroa, Rafael Castro Lang, San Juan, P.R., for defendants.
   OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

Through a “Notice of Intention to Use Evidence”, filed on March 11, 1985, the United States informed under Rule 12(d)(1) of the Federal Rules of Criminal Procedure of its plan to offer into evidence prior similar acts committed by defendant Raymond Cátala Fonfrias.

On April 29,1985, co-defendant Raymond Cátala Fonfrias filed an opposition thereto. The matter stands submitted.

In essence, the evidence subject of the above notice and which the prosecution intends to offer consists of the words “hay que tumbarlo”, allegedly uttered by co-defendant Cátala and overheard by several witnesses.

It appears from the notice filed that the background of this alleged incident involved the arrest in 1980 of Marcos Walter Rosales, charged with the participation in the theft of a van load of Felipe II brandy. The main witness against Marcos Walter Rosales was Sigfredo Martell. It is alleged that after his arrest and release Rosales went to co-defendant Cátala’s office and met there with several people. It is during this meeting that Cátala supposedly said “hay que tumbarlo” in reference to Sigfredo Martell in view that he had talked too much.

In his opposition, co-defendant Cátala opposes the use of said evidence under Federal R.Evid. 404(b).

The rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of a mistake or accident.

In accordance with the rule, co-defendant Cátala opposes its admission on two basic grounds. First, he alleges that evidence of crimes not charged in the indictment is not admissible for purposes of showing that the defendant has a criminal disposition in order to generate the inference that he committed the crime with which he is charged.

Defendant Cátala thus argues that the act which the government intends to present as evidence clearly falls within the prohibition of Rule 404(b) of the Federal Rules of Evidence constituting evidence of criminal disposition to commit the crime for which he is charged.

Co-defendant further alleges that the evidence is inadmissible under Rule 403 of the Federal Rules of Evidence since said rule excludes otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue or misleading of the jury or undue delay, waste of time or needless presentation of cumulative evidence.

There is considerable case law on the interpretation of Federal Rule of Evidence 404(b) from the Court of Appeals for the First Circuit.

In accordance therewith, it is well settled that prior acts may not be admitted to prove that a person has acted in similar fashion in the case at hand, Lataille v. Ponte, 754 F.2d 33, 35 (1st Cir.1985); Tigges v. Cataldo, 611 F.2d 936, 938 (1st Cir. 1979), since the government is not permitted to use evidence of bad acts to show that someone has a bad character from which to confer a propensity to commit the crime with which he is charged. U.S. v. Fortes, 619 F.2d 108, 120 (1st Cir.1980); U.S. v. Fosher, 568 F.2d 207, 212 (1st Cir. 1978); U.S. v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976); U.S. v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975).

Nevertheless, in accordance with the rule, such evidence may be admissible for other purposes such as impeachment, or to show proof of motive, opportunity, etc. U.S. v. Sclamo, 578 F.2d 888, 890 (1st Cir.1978). Thus, if such evidence is relevant to another legitimate purpose, it may be admitted but only if its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. U.S. v. Cepulonis, 530 F.2d 238, 246 (1st Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 834 (1976); Birring v. U.S., 328 F.2d 512 (1st Cir.), reh. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964).

In the instant case the government moves for the admission of said evidence alleging that the same may be admitted as evidence to show motive. This motive is explained as murder to prevent testimony. The government also alleges that the evidence will be relevant to prove knowledge.

However, in order to determine whether the evidence is not foreclosed as evidence of motive, we should carefully examine and scrutinize the indictment in the instant case.

In the present case co-defendant Cátala is being charged in part with counseling the murder of Griselle González Ortiz (Jessica), who was scheduled to be a witness against a client to co-defendant Cátala in order to prevent the use of said witness’s testimony against that client.

Although the evidence the government seeks to. introduce will show similar preparations and plannings, the similarity of purpose is not what is technically required as motive.

Courts have described the concept of motive as “the reason that nudges the will and prods the mind to indulge the criminal intent.” U.S. v. Beechum, 582 F.2d 898, 912 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), and as an inducement or state of feeling that impels and tempts the mind to indulge in a criminal act. 2 Wigmore Evidence §§ 396, 397, 3rd edition; U.S. v. Beechum, supra. The motive is a cause which comes into play before the criminal act and of which the act is the effect.

The proof of motive can be uncharged misconduct evidence. This evidence may take two modalities or forms . Under one form the act of uncharged misconduct supplies the motive for the charged crime. The two crimes are causally related. The uncharged act is cause and the charged act effect. Here the judge must be able to find that the uncharged act could have induced the charged crime. Here we cannot say that the evidence which the government seeks to introduce through its notice of March 11, 1985, supplies the cause of the acts for which co-defendant is being charged. We cannot say that the uncharged act supplies the motive for the charged crime or that the uncharged act is the cause and the charged crime the effect. There is no such link between the two.

On the other hand, in order to fall under the second form or modality of motive, the act of uncharged misconduct should evince the motive. Once more the motive is the cause. Both acts are effects, and the uncharged act tends to show the motive that produced the charged act, which is the other effect. Both crimes are explainable as the result of the same motive.

Though at first this may seem to fit the situation before us in which the same “motive” (murder to prevent testimony) may underlie both acts, this conclusion arises upon a confusion of purpose with motive.

Under this second modality or form, motive is not to be equated to purpose. Motive is seen in relation of feelings towards the victim. Even totally different acts may disclose the same feelings. In such way the uncharged act may evince the same motive as the charged act. Thus, under this form or modality the feelings or emotion which serves as motive must be directed at the victim.

Absent this requirement the evidence would show only the defendant’s violent nature and violate the prohibition in the first sentence of Federal Rule of Evidence 404(b).

This is precisely what happens here.

There is no link of emotion towards the same victim as to find the motive exception applicable. On the contrary, there is no relation whatsoever between the victims in both acts.

The uncharged misconduct of the type the government seeks to introduce is the very theory forbidden by Federal Rule of Evidence 404(b). The prosecution is offering uncharged misconduct to prove character of a person in order to show that he acted in conformity therewith. It is directed at an inference of action rather than identity.

The rule limits the use of evidence whose only bearing is to show the propensity of the accused toward the crime in the light of the present facts.

Here we do not find a common scheme as required to show knowledge, U.S. v. Moccica, 681 F.2d 61, 63 (1st Cir.1982), nor an offense showing bearing upon others also based on a common scheme or plan. U.S. v. Barrett, 539 F.2d 244, 248-249 (1st Cir. 1976); U.S. v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir.), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974); Green v. U.S., 176 F.2d 541, 543 (1st Cir. 1949).

The arguments adduced by the government are not persuasive nor sufficient in law to authorize the use of said evidence.

Having found the evidence to be inadmissible under Federal Rule of Evidence 404(b), we need not pass over co-defendant’s second contention of its inadmissibility under Federal Rule of Evidence 403 which guards against the use of any kind of character evidence when probative worth is substantially outweighed by the danger of unfair, prejudiced confusion of issues or misleading of the jury. U.S. v. Wright, 573 F.2d 681, 683 (1st Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978); U.S. v. Herman, 589 F.2d 1191, 1197-98 (3rd Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).

Accordingly, in view of the above, the Court hereby forecloses the use of the evidence subject of the government’s Notice of March 11, 1985.

IT IS SO ORDERED.

        See, Edward J. Imwin Kilreid, Unchanged Misconduct Evidence, Callaghan, 1984, Chapters 2-3. .


author: SPIEGEL, District Judge:

text:
    Heather BOWMAN, et al., Plaintiffs, v. BETHEL-TATE BOARD OF EDUCATION, et al., Defendants.
    No. C-1-85-864.
    United States District Court, S.D. Ohio, W.D.
    May 6, 1985.

      John Woliver, Batavia, Oh., Patrick Gregory, of-counsel, Mt. Orab, Oh., for plaintiffs.
    J. Michael Fischer, Judy L. Pershern, Cincinnati, Oh., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

SPIEGEL, District Judge:

I. INTRODUCTION

This matter came on for consideration on plaintiffs’ motion for a preliminary injunction (doc. 5), which defendants opposed (doc. 6). Plaintiffs filed suit pursuant to 42 U.S.C. § 1983 (see doc. 1). Previously this Court had granted plaintiffs’ motion for a temporary restraining order on April 25, 1985 (doc. 3). Because of the time element involved and the simplicity of the issue presented, in identification if not in substance, the parties agreed that the hearing held on plaintiffs’ motion for a preliminary injunction be on the merits. At said hearing, held on May 2, 1985, only one witness was called; the parties then immediately proceeded into oral argument. From the Bench we ruled that defendants were to be permanently enjoined from interfering in any way with the rehearsal and presentation of the play Sorcerer and Friends, scheduled for performance on May 13, 1985. We also ruled, however, that no part of the rehearsal or staging of the play should be included in any regular third grade classroom time — that is, during normal school hours.

At the outset the parties agreed that the essential facts were not in dispute. To reach our decision, this Court had to make only one critical finding of fact: whether participation in the play was voluntary or compulsory. From that finding flowed our ultimate conclusion of law that the Board had acted unconstitutionally in ordering a halt to production of Sorcerer. In accordance, then, with Fed.R.Civ.P. 52(a), having considered all of the evidence and the arguments and memoranda of counsel as well as the demeanor of Ronald E. Smith, the only witness called to the stand, including his appearance, attitude, and behavior, we now proceed to set forth our findings of fact and conclusions of law.

II. FINDINGS OF FACT

1. The Ebon C. Hill Elementary School is located in the Bethel-Tate School District in Clermont County, Ohio. (Affidavit of David E. Weidner, Principal, Ebon C. Hill Elementary School.) The Bethel-Tate Local School District Board of Education (Board) has immediate supervisory power over schools within the Bethel-Tate School District and was the governing body that made the decision to halt production of the play Sorcerer and Friends. (Testimony of Ronald E. Smith, President, Bethel-Tate Local School District Board of Education.)

2. Third graders at the Ebon C. Hill Elementary School had been rehearsing the above-mentioned play in anticipation of performance on May 13, 1985, the date of the final Parent-Teachers Association (PTA) gathering. (Affidavits of Carol Childers, Betty Bloom, Marianne Moran, Dorothy Bowman, plaintiffs; of Liz Dorton, Sherri Howser, teachers; of Deborah Hudepohl, President, PTA.) Third grade entertainment at the final PTA meeting of the year is customary. (Affidavits of Carol Childers, Betty Bloom, Marianne Moran, plaintiffs; of Liz Dorton, Sherri Howser, teachers.) Sorcerer was selected as this year’s play because it is a musical-comedy, has a large number of parts no one of which requires a great deal of memorization, and was thought to be, in the teachers’ view, a suitable undertaking for third graders. (Affidavits of Carol Childers, Betty Bloom, Marianne Moran, plaintiffs; of Liz Dorton, Sherri Howser, teachers.)

3. Sorcerer began rehearsal during the first week of March, 1985. Rehearsals were held both before and after regular school hours. In addition, the songs in the play were practiced during music class, a portion of the school’s normal class schedule. (See affidavits of Carol Childers, Betty Bloom, Marianne Moran, plaintiffs; of Liz Dorton, Sherri Howser, teachers). On or about March 28, 1985, questions were raised about the content of the play. In response, the school’s principal communicated with third grade parents and asked that, upon review of a play synopsis and lyrics, they advise him whether they favored production of the play. This survey yielded a result of 44 parents in favor and 7 opposed, with 3 parents expressing no opinion. At the behest of the Board, during the week of April 11, 1985, the entire play was submitted to third grade parents. This second survey yielded 90 parents for Sorcerer. 23 against, and 2 without opinion. (Affidavit of David E. Weidner, Principal, Ebon C. Hill Elementary School.)

4. On April 18, 1985, the Board, in receipt of the second survey results, voted to halt production of the play. (Affidavit of David E. Weidner, Principal, Ebon C. Hill Elementary School; of Ronald E. Smith, President, Bethel-Tate Local School District Board of Education.) The Board’s vote was prompted by its disagreement with the ideas contained therein. (Affidavit of David E. Weidner, Principal, Ebon C. Hill Elementary School; testimony and affidavit of Ronald E. Smith, President, BethelTate Local School District Board of Education.) Specifically, in the opinion of the Board, Sorcerer glorifies cowardice, denigrates patriotism, and disparages the aged. (Affidavit of Ronald E. Smith, President, Bethel-Tate Local School District Board of Education.)

5. Both student and teacher participants in Sorcerer, or in whatever play is produced by the third grade for performance at the May PTA meeting, is completely voluntary. “Voluntary” means that a student could decline to participate because no letter grade was given and no sanction imposed against non-participants. (Testimony of Ronald E. Smith, President, Bethel-Tate Local School District Board of Education.) In addition, voluntariness is evidenced by the fact that rehearsals are held before, after, but not during, regular school hours.

6. The Board acknowledges that those courses of study it must provide the school children for whom it is responsible are the subjects set forth in Ohio Revised Code § 3313.60. The Board further acknowledges that these basic courses define the school’s curriculum. While extra-curricular activities designed to effect personal development are offered, participation therein is a completely voluntary decision made by parents and children. (Testimony of Ronald E. Smith, President, Bethel-Tate Local School District Board of Education.)

III. CONCLUSIONS OF LAW

By all counts, participation in Sorcerer and Friends is voluntary. And because participation is invited rather than compelled, the play at issue falls not within the confines of curriculum, an area over which a local board of education has an exceptional amount of discretion. Instead, rehearsal for and presentation of Sorcerer is an extra-curricular activity and shall be so analyzed.

On many occasions the United States Supreme Court has examined the constitutional rights of youngsters within their school environments. In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Court struck down a criminal state that forbade the teaching of a foreign language to a child unless he or she had passed the eighth grade. Despite the purpose of the legislation, “to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals,” see id. at 401, 43 S.Ct. at 627, the Justices decided that children could be taught modern languages other than English. See also Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923). Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), involved a challenge to the constitutionality of a state statute that prohibited the teaching of the theory of evolution in Arkansas’ public school and universities. The Court’s ruling was clear: “The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the [Establishment and Free Exercise Clauses of the] First Amendment.” Id. at 107, 89 S.Ct. at 272. No doubt the decision in Epperson was reached easier than in Meyer, for, in the latter, the state, much like the Board here, was guided honorably by its efforts to promote patriotism.

Plainly the Supreme Court instructs that neither “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). The above-cited cases are but a sampling of the case law that made possible those famous words written by Justice Fortas in Tinker. And were this Court forced to draw broad analogies in order to resolve the question at hand, we are confident we could do so. But Supreme Court precedent offers us more than general guidance in this instance. Given the instant facts, we believe Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) controls our decision and mandates that it be in favor of plaintiffs.

At issue in Island Trees, a plurality opinion, was whether the First Amendment limits a local school board’s discretion to remove certain library books from junior and senior high school libraries. The Supreme Court responded in the affirmative.

A number of parallels can be drawn between Island Trees and the instant case. Visits to the library to check out books for pleasure reading is a voluntary activity and not part of the school’s curriculum. Id. at 869, 102 S.Ct. at 2809. The Board’s president testified that preparation for and performing in Sorcerer also is voluntary. But defendants’ counsel argued that, notwithstanding its voluntariness, the play is part of the school’s offerings of avenues of personal development, necessary adjuncts to the curriculum and thus controllable as within the Board’s nearly plenary discretion. As a matter of law, we conclude otherwise. Surely no one would dispute that a library and its contents make available unlimited opportunities for personal development, and yet the Supreme ■ Court found its existence to be outside the school’s curriculum. Thus we decide that, as with the Island Trees library, participation in Sorcerer is voluntary and not part of the school’s curriculum.

The Island Trees Board removed the books from the libraries under their supervision because they were “ ‘irrelevant, vulgar, immoral, and in bad taste.’ ” Id. at 859, 102 S.Ct. at 2804. Bethel-Tate has shut down production of Sorcerer because the play allegedly glorifies cowardice, denigrates patriotism, and disparages the aged. Island Trees removed the books in the face of contrary views of teachers and librarians in their own school system, the Superintendent of Schools, publications that specialize in rating books for students of the ages involved, and literary experts. Id. at 874,102 S.Ct. at 2811. Bethel-Tate’s Board has acted despite contrary opinions expressed by the principal and four other third grade teachers, the president of the PTA, the play’s author, and the vast majority of the surveyed parents, not to mention plaintiffs.

In Island Trees, Justice Brennan, who announced the judgment of the Court, cited motivation as a key factor. “If [the Board] intended by their ... decision to deny [students] access to ideas with which [the Board] disagreed, and if this intent was the decisive factor in [the Board’s] decision, then [the Board has] exercised [its] discretion in violation of the Constitution.” Id. at 871, 102 S.Ct. at 2810 (footnote omitted) (emphasis original). The Court defines “decisive factor” as a substantial factor, “in the absence of which the opposite decision would have been reached.” Id. at 871 n. 22, 102 S.Ct. at 2810 n. 22. The facts now before us suggest that the Bethel-Tate Board ordered a halt to production solely because it did not approve of the content of the play. Under the authority of Island Trees, we believe that defendants, the Bethel-Tate Local School District Board of Education and its individual members, have acted unconstitutionally in forcing their judgment upon others concerning an event that is extra-curricular. Therefore, a permanent injunction must issue.

In support of their claim that Sorcerer rightfully merits inclusion in the curriculum and in the Board’s near-total control, defendants cite Seyfried v. Walton, 668 F.2d 214 (3d Cir.1981). In that case, a public high school sponsored theatrical productions two times per year. The musical Pippin was selected as the 1981 spring production. Soon after rehearsals commenced, a parent complained that the play mocked religion. The public school superintendent eventually cancelled the production, not because of the anti-religious theme, but because the play was too sexually suggestive. The Third Circuit affirmed the district judge's ruling that the cancellation “was no different from other administrative decisions involving allocation of educational resources and that [it] did not offend the students’ [F]irst [A]mendment rights.” Id. at 215.

We decline to follow Seyfried for a number of reasons. First, Seyfried was decided prior to Island Trees and, in this Court’s judgment, would not be decided similarly today. We think defendants improperly cite Bender v. Williamsport Area School District, 741 F.2d 538 (3d Cir.1984), for the proposition that Seyfried remains good law in the Third Circuit. While both Island Trees and Seyfried were cited in Bender, neither were used in a context apposite to the question presented in the instant case. As stated by Judge Garth, Bender examined “the tension between the [F]irst [A]mendment free speech claim of high school students meeting in an activity devoted to prayer, and a school district’s claim that the Establishment Clause — also found in the [F]irst [AJmendment — overrides free speech guarantees in the context of a ‘limited forum.’ ” Id. at 541. Second, we could consider Seyfried to be, at best, persuasive authority; it in no way binds this Court as a member of the Sixth Circuit.

Finally, we can distinguish our facts from those in Seyfried. Judge Aldisert was quick to focus his analysis on behalf of the panel: “The critical factor in this case is the relationship of the play to the school curriculum. As found by the district court, both the staff and the administration view the spring production at Caesar Rodney as ‘an integral part of the school’s educational program.’ Participation in the play, though voluntary, was considered a part of the curriculum in the theater arts.” 668 F.2d at 216. In contrast, Mr. Smith, in behalf of the Board, made it quite clear that Sorcerer is an extra-curricular activity, voluntary in nature. We think this difference to be a crucial one that severely weakens defendants’ reliance on the proffered case.

To sum up, in accordance with our duties prescribed in Fed.R.Civ.P. 52(a), we conclude as a matter of law that the BethelTate Local School District Board of Education halted rehearsal for performance of Sorcerer and Friends, a voluntary, extracurricular theatrical production, because it disagreed with some of the ideas expressed therein; consequently, we find the Board’s actions to be in violation of the participants’ First Amendment rights and, pursuant to our sworn duty to uphold the Constitution of the United States, must enjoin its illegal decision. To borrow the words of Justice Blackmun in Island Trees, “allowing a school board to engage in such conduct hardly teaches children to respect the diversity of ideals that is fundamental to the American system.” 457 U.S. at 880, 102 S.Ct. at 2814 (Blackmun, J., concurring in part and concurring in the judgment).

Implicit in our Order of injunctive relief is the Court’s concomitant direction to the Board that it shall permit the performance of Sorcerer to take place, where originally scheduled, on the stage of the middle school auditorium. {See affidavit of William Bick, Superintendent, Bethel-Tate Local School District.) Ohio Revised Code § 3313.77 provides that, pursuant to local policy and upon request and payment of a reasonable fee, a school board may make available its facilities for “recreational meetings and entertainments, and for such other purposes as promote the welfare of the community; provided such meetings and entertainments shall be nonexclusive and open to the general public.” Without a doubt, PTA meetings fall within this statutory provision. Section 3313.77 requires that a school board draft a local policy, or “regulations.” That the PTA is charged neither for use of the auditorium nor for chair set up on the evening that the play is presented bespeaks current policy, perhaps unwritten, that this Court expects to be continued through the end of the present school year.

IV. CONCLUSION

Accordingly, defendants are hereby permanently enjoined as follows:

Defendants are hereby permanently enjoined from interfering in any way with the rehearsal and presentation of the play Sorcerer and Friends, scheduled for performance on May 13, 1985. However, no part of the rehearsal or staging of the play shall be included in any regular classroom time, that is, during normal school hours, of the third grade at the Ebon C. Hill Elementary School.

SO ORDERED.

      . That the Board considered the play’s message to be in derogation of the Board’s curriculum philosophy is of no moment legally once we conclude that an extra-curricular activity is at issue. Moreover, a fear that the community will perceive the Board as endorsing the play's message is insufficient justification for suppression of First Amendment freedoms.

      . Plaintiffs’ counsel suggested yet another difference at oral argument. In Seyfried, the scheduled production. Pippin, was halted because of its sexual content. There has been no charge, nor could there be after reading the play, that Sorcerer has a sexual theme. But, supposing the play was sexually explicit or suggestive, and supposing further that the Board decided to halt production because of that sexual content, we assume without deciding that the Board's decision might have been upheld as consonant with the Ohio legislature’s prohibition of dissemination of matter harmful to juveniles. See Ohio Revised Code §§ 2907.31, 2907.01(E).


author: EDWARD C. REED, Jr., District Judge.

text:
    Bobby Bernard THOMAS, Petitioner, v. George SUMNER, Respondent.
    No. CV-R-84-444-ECR.
    United States District Court, D. Nevada.
    May 7, 1985.

      Bobby Bernard Thomas, in pro. per.
    Brian McKay, Atty. Gen. of Nevada, Carson City, Nev., for respondent.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

Petitioner, an inmate in the custody of the Nevada Department of Prisons, has petitioned pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. He is serving two consecutive terms of imprisonment for life without the possibility of parole. The crimes of which he was convicted by a jury are first degree murder and use of a deadly weapon in the commission of a crime. The murder occurred in a parking lot after a basketball game. Petitioner contended that he acted in self-defense in fatally stabbing the victim with a knife. Another unrelated knifing occurred after the same game; that victim suffered a non-fatal arm wound.

The ground for the instant petition is that the Double Jeopardy clause of the Fifth Amendment barred his second trial, at which he was convicted. His motion for a mistrial had been granted during the presentation of his case during the first trial. The basis for the mistrial was an improper question by the prosecutor during cross-examination of one of Petitioner’s witnesses. The question was: “It is true, is it not, that in a previous fight another white boy had been stabbed?”

The trial judge expressed his feeling that the question “was monumental in its impropriety.” He felt that the jury might return a harsher verdict than it otherwise would have, because of the question.

The prosecutor declared that he felt the door had been opened to the question by questioning directed to three earlier witnesses during the trial. He alleged that Petitioner’s counsel had cross-examined Detective Burt Levos to bring out the fact that there had been another stabbing after the game. Actually, Petitioner’s counsel didn’t cross-examine Detective Levos at all. The prosecutor also pointed out that witness Willie Harvey, who had been present at the time of Petitioner’s altercation, testified that Petitioner had been involved in an earlier fight. The testimony was in response to questioning by Petitioner’s counsel. The record reflects this questioning. In addition, the prosecutor noted that Detective Joe McGuckin testified, upon cross-examination by Petitioner’s counsel, that he had visited the victim of the unrelated stabbing in a hospital that same night. This, also, is found in the record.

The trial judge held a hearing on Petitioner’s motion to dismiss the information that served as the initial pleading for his second trial. The transcript of that hearing is part of the record. The motion to dismiss was denied. The judge found that the offensive question had not been asked deliberately in order to provoke a motion for a mistrial. Rather, he felt that the prosecutor had believed that he was entitled to ask the question. It was also noted by the judge that the prosecution’s case had been “succinct and crystal clear, and if I had to hazard a guess I would have said a conviction of some sort was imminent, probably a first-degree conviction was a viable possibility.”

Petitioner has exhausted his State remedies. The Nevada Supreme Court dismissed his appeal, which was based on double jeopardy. That Court, after reviewing the record, held that the trial court’s finding, that the improper question was not intended by the prosecutor to provoke a motion for mistrial, was not clearly erroneous.

Generally, a motion for mistrial by a defendant constitutes consent that removes the double jeopardy bar to reprosecution for the same crime or crimes; the only exception is where the conduct that gave rise to the successful motion for a mistrial was intended to provoke the defendant into making the motion. Oregon v. Kennedy, 456 U.S. 667, 676, 679, 102 S.Ct. 2083, 2089, 2091, 72 L.Ed.2d 416 (1982); United States v. Mitchell, 736 F.2d 1299, 1300-1301 (9th Cir.1984); United States v. Calderon, 618 F.2d 88, 89-90 (9th Cir.1980).

A person’s state of mind is a question of fact. Wainwright v. Witt, — U.S.-, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985). A trial judge’s finding as to state of mind, when based on the demeanor and credibility of a witness, may not be redetermined by a federal habeas court. Id.; Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983). The trial judge in Petitioner’s case, after hearing, specifically found that the prosecutor had not asked the offensive question with the intention of provoking a motion for mistrial. 28 U.S.C. § 2254(d) provides that a determination on the merits of a factual issue, made by a state court after a hearing to which both prosecutor and defendant were parties, shall be presumed to be correct unless certain factors listed in the statute existed. See Marshall v. Lonberger, at 432,103 S.Ct. at 849; Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.1984). If, as here, none of those factors were present, the burden falls on the petitioner to establish by convincing evidence that the factual determination by the state court was erroneous. 28 U.S.C. § 2254(d); Brewer v. Raines, 670 F.2d 117, 120 (9th Cir.1982). The mere pointing out by the petitioner of conflicting or contradictory evidence relevant to intent does not satisfy the burden. See Amdell v. Warden, Nevada State Prison, 549 F.2d 1284, 1286 (9th Cir.1977). Therefore, the trial judge’s finding as to the prosecutor’s state of mind is entitled to a high measure of deference. See Marshall v. Lonberger, supra 459 U.S. at 432, 103 S.Ct. at 849; Oregon v. Kennedy, supra 456 U.S. at 677, n. 7, 102 S.Ct. at 2090, n. 7; United States v. McConney, 728 F.2d 1195, 1204, n. 10 (9th Cir.1984).

Under certain circumstances, a federal court must grant an evidentiary hearing to a habeas applicant. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). For the petitioner to be entitled to a hearing, the court must determine that his allegations, if proved, would establish his right to relief, and that an evidentiary hearing is necessary to ascertain facts to support those allegations. Bashor v. Risley, supra at 1233. Since a full and fair, reliable hearing as to the prosecutor’s intent was conducted by the trial judge, and his finding is fairly supported by the record, no hearing will be granted here. See Id.

The burden was on Petitioner to prove that his retrial violated the Double Jeopardy clause. United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983); United States v. Cox, 633 F.2d 871, 876 (9th Cir.1980). That burden has not been sustained.

IT IS, THEREFORE, HEREBY ORDERED that Petitioner’s application for a writ of habeas corpus be DENIED.


author: JOHN P. MOORE, District Judge.

text:
    WESTERN SYSTEMS, INC., et al., Plaintiffs, v. DYNATECH CORPORATION and Lyle Bergquist, Defendants.
    Civ. A. No. 82-JM-906.
    United States District Court, D. Colorado.
    May 8, 1985.

      Lawrence R. Reno, Bader & Cox, Denver, Colo., for plaintiffs.
    Arthur A. March and Robert E. Purcell, Rogers, Hoge & Hills, Englewood, Colo., for defendants.
   ORDER

JOHN P. MOORE, District Judge.

This matter is before me on defendants’ motion for summary judgment on claims asserted by Western Systems, Inc. (“Western”) and Thomas McCasland (“McCasland”), the only remaining plaintiffs in this anti-trust action. The issues have been fully briefed. Jurisdiction is proper under 28 U.S.C. § 1337.

This action was initiated by Western, McCasland, Hexco International, Inc. (“Hexco”) and Hughes Capital Corporation (“Hughes”) for declaratory relief and monetary damages for violations of 15 U.S.C. §§ 1 & 2, referred to herein as §§ 1 & 2 of the Sherman Act. Plaintiffs’ seventh and eighth claims for relief invoke the court’s pendent jurisdiction. The complaint is filed pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15, which permits the recovery of treble damages by “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws ...”

A synopsis of the facts reveals the gradual but continual attrition of this action since its initial filing in June 1982, shortly before defendants Dynatech, Inc. (“Dynatech”) and Lyle Bergquist (“Bergquist”) sought a hearing on their motion for a preliminary injunction in the state court. The market in question is that for helium sampling and analysis services, an admittedly limited but accepted technique in the oil and gas industry.

In 1978, plaintiff Western, a Colorado corporation, whose President was McCasland, hired the defendant, Lyle Bergquist, an expert in helium sampling, to develop this market for the corporation. Late in 1981, when conflict arose between McCasland and Bergquist, the parties executed a Termination Agreement in which McCasland signed a two year world-wide covenant not to compete in the helium sampling business to be enforced by an injunction to restrain Western from engaging in a similar business. [See Exhibit A, plaintiffs’ complaint].

In tandem with the McCasland-Bergquist transaction were the negotiations between plaintiffs and Dynatech for Dynatech to purchase the assets of Western. Upon the breakdown of these negotiations, Dynatech hired Bergquist who assigned his covenant not to compete to Dynatech. A week later, Hughes, a corporation in the business of buying up existing operations, purchased Western and set up a new corporation, Hexco, to continue in the helium sampling and analysis business. Dynatech, as assignee of Bergquist’s covenant not to compete, then sought its enforcement in the state district court for Jefferson County. The state court denied injunctive relief along with a motion to stay, pending my resolution of the federal action.

In prior orders, defendants’ motion to dismiss on the issue of whether plaintiffs had alleged an injury within the meaning of the anti-trust laws was denied. At that stage of discovery and pleading, the case was not ripe for a remedy. Upon a later submission of a stipulation of dismissal, plaintiffs Hughes and Hexco were dismissed without prejudice from the action. Only Western and McCasland remain to prosecute the anti-trust and pendent state claims.

Defendants’ motion for summary judgment is premised on the contention that the remaining plaintiffs, Western and McCasland, lack standing to prosecute an antitrust action. In a two pronged argument, defendants asseverate that plaintiffs’ alleged anti-trust injury, the filing of the state court action with the consequent attorneys fees incurred, is not an injury cognizable under the anti-trust statute, and that McCasland, a former employee of the now-dismissed co-plaintiffs, and Western, an officially dissolved Colorado corporation, lack standing to invoke Sherman Act protection.

Plaintiffs respond that defendants’ filing of the state action naming Western and McCasland, individually, sufficiently exposed them to liability flowing from the defendants’ alleged anti-trust violation i.e. the enforcement of an illegal restraint of trade, to assure their standing in this action. Moreover, plaintiffs contend that its allegations concerning the state court action comply with the Tenth' Circuit’s requirements in Hydro-Tech Corporation v. Sundstrand Corporation, 673 F.2d 1171 (10th Cir.1982) and divest protection of that proceeding from the Noerr-Pennington Rule.

Because summary procedures should be used sparingly in complex litigation, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1964), “[t]he general standards for the granting of summary judgment become even more strict in the antitrust context ...” Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674 (9th Cir.1976). Nevertheless, defendant’s burden is not insurmountable. Where plaintiff fails to present significant probative evidence to demonstrate that a genuine issue of material fact exists, summary judgment is appropriate. Joe Regueira, Inc. v. American Distilling Co., 642 F.2d 826 (5th Cir.1981); C.A.R. Leasing, Inc. v. First Lease, Inc., 394 F.Supp. 306 (N.D.Ill. 1975). When the gist of a case turns on documentary evidence and involves conclusions of law, summary judgment may be granted. U.S. v. Beatrice Foods Co., 344 F.Supp. 104 (D.Minn.1972), affd 493 F.2d 1259 (8th Cir.1974), cert. denied, 420 U.S. 961, 95 S.Ct. 1350, 43 L.Ed.2d 438. Summary judgment is appropriate in anti-trust cases in which the plaintiff can offer only vague and conclusory charges. Rodrigue v. Chrysler Corp., 421 F.Supp. 903 (D.La.1976). Nevertheless, where motive and intent and a myriad of other factual issues may grow from the fertile grounds of an anti-trust allegation, summary judgment should be used with caution.

While § 4 of the Clayton Act seems to grant a private right of action to “any person” who can prove injury to his “business or property” caused by an anti-trust violation, the courts have imposed a standing requirement on the “by reason of” language to signify legal causation. See generally, Berger and Bernstein, “An Analytical Framework for Anti-Trust Standing,” 86 Yale L.J. 809 (1977). Underlying judicial restraint of anti-trust standing is the concern that mandatory treble damages may exact a penalty not contemplated by the Congress in all cases, or, indeed, too speculative or remunerative under the circumstances.

In the most recent case, the Supreme Court comprehensively reviewed the doctrine of standing since its earlier enunciations in Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977); Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); and Blue Shield of Virginia, Inc. v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982), and further constricted the standing requirement. Associated General Contractors of California v. California State Council, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Justice Stevens, in a comprehensive analysis of the statutory language and history, underscored the requisite showing the anti-trust plaintiff must make to enable a court “to evaluate the plaintiff’s harm, the alleged wrongdoing by the defendants, and the relationship between them.” Id. at 907 (footnote omitted). Among the factors favoring judicial recognition of an antitrust claim are a causal connection between the anti-trust violation and the harm to the plaintiff, the defendant’s improper motive, the nature of the plaintiff’s alleged injury, and the directness or indirectness of the injury. Reversing the Court of Appeals for the Ninth Circuit, the Court concluded that plaintiff Union’s allegations of harm were insufficient as a matter of law to be cognizable under the Sherman Act. “Other relevant factors” fueled this decision: the nature of plaintiff’s injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy. Id. at 913.

Brunswick {supra.) and its progeny delineate the seminal inquiry I must make to determine whether plaintiffs have standing to prosecute this lawsuit. “Plaintiffs must prove anti-trust injury of the type the anti-trust laws were intended to prevent and that flows from that which makes the defendants’ acts unlawful.” Brunswick 429 U.S. at 490, 97 S.Ct. at 698. See also, Central National Bank v. Rainbolt, 720 F.2d 1183 (10th Cir.1983). Not just any injury, but anti-trust injury alone is the causal connection for § 4 Clayton jurisdiction.

To determine whether anti-trust injury is present i.e. whether the plaintiff has standing, the lower federal courts have elaborated on Brunswick, and created a “factual matrix” in which to judge a plaintiff’s claim. Cromar Co. v. Nuclear Materials & Equipment Corp., 543 F.2d 501, 506 (3rd Cir.1976). The factors to be examined in the factual matrix are (1) the nature of the industry involved; (2) the relationship of the plaintiff to the alleged violator; and (3) the alleged effect of the anti-trust violation on the plaintiff. Mindful that anti-trust activity affects all of society, the matrix then focuses on the plaintiff, asking whether this plaintiff is the one whose protection is the fundamental purpose of the anti-trust laws. Id.

In their Amended Complaint, plaintiffs aver that the individuals or entities providing helium sampling services are small; that another Colorado and a Washington state company work only on specific requests for the service; and that the sole other large competitor is a Canadian corporation. The service, apparently, is a limited one, used by some mineral exploration companies seeking new geothermal locations. Plaintiffs’ specific product line is marketed as “Air Alive.” Plaintiff’s complaint is devoid of allegations of the nature of the industry with regard to the alleged anti-competitive effect of the sale, the effect on pricing and the predatory nature of the competition.

The remaining factors merge into the fundamental question whether this is the proper plaintiff whose protection is the fundamental purpose of the anti-trust laws. After the sale of Western’s assets and most of its liabilities, Western applied for and received a certificate of dissolution in November of 1982. By this act, Western evidenced its decision not to continue in the helium sampling business and not to compete further in the market. Western’s contention that Colo.Rev.Stat. § 7-8-122 confers standing on dissolved corporations to sue and be sued within two years of the dissolution cannot invest Western with federal standing under the Sherman Act.

In a similar case, Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.1981), Chrysler argued that it had been eliminated from competition by the destruction of its Airtemp Division and affiliated subsidiaries. In fact, Chrysler had entered into an agreement with Fedders Corporation to sell virtually all of the assets of its Airtemps Division. After execution of the contract, Chrysler became dissatisfied with the agreement and filed suit under § 4 of the Clayton Act. The Sixth Circuit held that by its agreement to sell Airtemps, Chrysler voluntarily withdrew from competition in the market. “It did not contemplate continuing to compete in that market and in fact covenanted not to do so ... ” Id. at 1235.

Similarly, in A.D.M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753 (1st Cir.1980) and Synco, Inc. v. Penn Central Corp., 551 F.Supp. 949 (E.D.Pa.1982), the courts examined the purported anti-competitive effect of the sale of the assets of a business. Two distinctions were drawn. The A.D.M. court noted:

If the sale of plaintiffs assets had an effect on competition, it would have occured whether or not [plaintiff] was harmed. There is thus lacking the essential connection between injury and the aims of the anti-trust laws necessary to give [plaintiff] standing.

Id. at 754. The Synco court emphasized the necessity of distinguishing between the alleged business torts which may occur in the sale of the assets of a company and the purported anti-competitive effect of the transaction.

To infuse the “shell” of Western with anti-trust standing in the light both of its corporate demise and later falling out with its successor would render the standing requirement of § 4 a nullity. That Western was a named plaintiff in the state action confers no anti-trust injury cognizable under the Sherman Act.

When the focus shifts to co-plaintiff McCasland, the result is no different. In response to interrogatories, McCasland stated that he considered himself to be an employee with no special bonus or stock provisions written into his position. [See defendant’s Exhibit B]. Although the courts are uniform in denying Clayton standing to former shareholders or shareholders of a corporation, McDonald v. Johnson & Johnson, 722 F.2d 1370 (8th Cir.1983) some disagreement whether former employees have standing to maintain a federal anti-trust action. Whether the employment interest constitutes “business or property” generally turns on the relationship between the employee’s claim and the nature of the alleged anti-trust violation. See Areeda & Turner, Anti-Trust Law, 334, 338; See also, Perry v. Hartz Mountain Corp., 537 F.Supp. 1387 (S.D.Ind.1982); Harsh v. CPC International, 395 F.Supp. 578, 580 (N.D.Tex.1975). McCasland’s exposure to liability in the state action related to his alleged breach of the covenant not to compete. There are no allegations that plaintiff was forced to sell because of threats or other predatory conduct. “The transmutation of state law torts into federal anti-trust violations would have to be based upon a finding that the injuries for which compensation is sought have an unreasonable effect on competition, as well as on a particular competitor.” A.D.M. Corp. at 754. (court’s emphasis) (citation omitted).

The facts of the instant complaint in its present posture compel the conclusion that the protection fundamental to the purposes of the anti-trust laws is not available to the remaining plaintiffs. Accordingly, I conclude that plaintiffs lack standing to assert their first through sixth claims for relief. Without federal jurisdiction, the surviving pendent claims for tortious interference with contract and tortious interference with a prospective business advantage, being questions of state law, are more properly addressed in the state court.

Upon the foregoing, it is

ORDERED that defendants’ motion for summary judgment, filed December 11, 1984, is granted on plaintiffs’ first through sixth claims for relief, and it is

FURTHER ORDERED that plaintiffs’ seventh and eighth claims for relief are dismissed for lack of jurisdiction.

      . Plaintiffs’ 7th claim for relief is for tortious interference with contract; their 8th claim is for tortious interference with a prospective business advantage.

        . In my order of May 30, 1983, the facts were set forth up to that stage of the pleading and discovery.

      . Helium sampling analysis is utilized in locating geothermal resources, oil, natural gas and uranium deposits.

      . The Noerr-Pennington rule is a court-made doctrine that exempts certain attempts to influence the government, including the filing of court actions, from attack under the Sherman Act.

      . It is unnecessary to reach defendant’s contention that the state action is a protected use of the judicial process as enunciated by Hydro-Tech (supra.).