Opinion
Civil Action 08-5061
05-24-2023
DANIEL GWYNN, Petitioner v. COMMISSIONER JEFFREY BEARD, et al., Respondents
REPORT AND RECOMMENDATION
CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE
Presently before the court is a Petition for Writ of Habeas Corpus filed by Daniel Gwynn (“Petitioner”), by and through his counsel, pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the State Correctional Institution-Phoenix, seeks habeas relief based upon a claim that the prosecution suppressed material exculpatory evidence (“Brady Claim”). On February 4, 2021, the Honorable Petrese B. Tuckerreferred this case to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, and upon the agreement of the Commonwealth, it is recommended that Petitioner be afforded habeas relief.
Judge Tucker has since retired; the case is now assigned to the Honorable Karen S. Marston.
I. FACTUAL AND PROCEDURAL HISTORY
The facts set forth in this background and procedural history were gleaned from the Petition for Writ of Habeas Corpus and the Commonwealth's Response to the Petition for Writ of Habeas Corpus.
On November 6, 1995, a jury in the Court of Common Pleas for Philadelphia County found Petitioner guilty of murder in the first degree, arson, and five counts of aggravated assault. Commonwealth v. Gwynn, 723 A.2d 143, 147 (Pa. 1998). The trial court imposed the death sentence and an additional term of thirty to sixty years of imprisonment for arson and five counts of aggravated assault. Id. On December 18, 2021, the parties entered into a joint stipulation for sentencing relief to remove Petitioner's exposure to a death sentence; Judge Tucker accepted this stipulation, by order dated January 14, 2021. Pet'r's Mem. at 3.
At trial, the Commonwealth accused Petitioner of an arson attack on an apartment building located in Philadelphia in the early morning hours of November 20, 1994; the fire caused the death of Marsha Smith - one of the squatters living in the building. Commonwealth v. Gwynn, 723 A.2d at 147 . Further, the Commonwealth relied on key witnesses (all squatters of the apartment building) who testified that Petitioner went to the apartment building before the fire and assaulted and threatened them for intervening while Petitioner demanded sex from Ms. Smith. Resp. at 911. These witnesses identified Petitioner during police investigations as “Rick” from a photo array that they previously saw in what the Commonwealth represented to be an “unrelated” homicide case. Id. at 12. The Commonwealth's evidence also included testimony from the detective that elicited Petitioner's inculpatory statement and a fire report from the Philadelphia Fire Marshal's Office establishing the deliberate nature of the fire. Id. at 17-18. Petitioner's appointed counsel did not present any evidence. Id. at 15. On direct appeal, the Pennsylvania Supreme Court affirmed the judgment of conviction and sentence. Gwynn, 723 A.2d at 154.
Next, Petitioner filed a timely petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46, on May 30, 2001. Pet'r's Mem. at 2. The Pennsylvania Supreme Court affirmed the PCRA court's denial of post-conviction relief on March 20, 2008. Id. at 2. Petitioner initially filed a Petition for Writ of Habeas Corpus on March 7, 2009, and the district court appointed the Federal Community Defender Organization (“FCDO”) as Petitioner's counsel. Resp. at 19. On April 27, 2009, Petitioner filed a second PCRA petition. Pet'r's Mem. at 2. In this court, on September 15, 2009, Petitioner moved for discovery and requested the complete police and prosecution files for the prosecution of the unrelated murder case referenced earlier, which FCDO investigators reviewed. Id. Petitioner amended his habeas petition on April 2, 2010. Id.
The FCDO investigators discovered that the Commonwealth had suppressed evidence showing that John Antrom and Donald Minnick, two of the key witnesses against Petitioner, previously identified “Rick” in the aforementioned unrelated murder case “as a different man: Gary Lupton.” Resp. at 20. Antrom and Minnick testified in the murder case against Lupton, who “reportedly threatened to have his associates kill the witnesses if they cooperated with the police.” Resp. at 20. Further, another witness in the Lupton case, Lorraine Irby, testified at Lupton's trial that she also had received death threats; four months after she gave testimony, someone set fire to her apartment building by pouring gasoline in a manner similar to what had occurred in the instant case. Resp. at 21. Moreover, the investigators discovered evidence of other arson fires at this location in May, July, and September 1994, before the fatal fire that killed Ms. Smith. Resp. at 22.
On April 18, 2011, Judge Tucker stayed the habeas proceedings in this matter pending resolution of PCRA litigation based upon the above-described suppressed evidence. Pet'r's Mem. at 2. On March 27, 2012, the PCRA court denied Petitioner's second PCRA petition, finding it untimely and meritless. Resp. at 22. On June 17, 2013, the Pennsylvania Supreme Court affirmed the dismissal in a summary order. Id. at 22-23. On July 5, 2013, Petitioner filed a third amendment to his habeas petition. Pet'r's Mem. at 3. On May 5, 2014, Judge Tucker appointed Petitioner's current counsel, Gretchen M. Engel. Id. After Petitioner's motion to compel discovery on September 26, 2016, id., Petitioner became aware of additional previously undisclosed evidence. Resp. at 23. Subsequently, Petitioner filed a fourth amendment to his petition on October 6, 2016. Pet'r's Mem. at 3.
Specifically, the new evidence showed that that Lupton matched some of the features used by the squatters to describe the man that threatened them on the day before the arson attack, and that the photo array from which the squatters identified “Rick” did not contain Petitioner's photo but, instead, did contain Lupton's mugshot. Resp. at 23.
On December 18, 2020, the Commonwealth and Petitioner entered a joint stipulation for sentencing relief. Pet'r's Mem. at 3. Judge Tucker accepted the joint stipulation by order of January 14, 2021. Id. This court extended the time for Petitioner to file his Memorandum of Law containing all claims for relief until January 3, 2022, to permit review of any additional discovery. Id. at 4. Petitioner raises three claims for guilt-phase relief: a Brady claim asserting that the prosecution suppressed material exculpatory evidence, knowingly made false representations to the court, and thereby deprived the jury of evidence of Petitioner's innocence, all of which are undisputed by the Commonwealth; and two ineffective assistance of counsel claims. Id. The Commonwealth responded on February 23, 2023, waiving procedural defenses to Petitioner's Brady claim, conceding that the prosecution violated its Brady obligations, and requesting that this Court grant a conditional writ of habeas corpus. Resp. at 27-47. This Court agrees that Petitioner should be afforded habeas relief.
II. DISCUSSION
A. The Commonwealth Waived Procedural Default as an Affirmative Defense
The Commonwealth explicitly waived its procedural default defense to the Petitioner's Brady claim. Resp. at 29. The U.S. Supreme Court has recognized that the state in habeas proceedings can provide an express waiver of exhaustion and procedural default. Banks v. Dretke, 540 U.S. 668, 705 (2004). In habeas corpus, procedural default constitutes an affirmative defense, which the prosecution must raise lest it “lose the right to assert the defense thereafter.” Gray v. Netherland, 518 U.S. 152, 166 (1996).
Furthermore, when the reason the petitioner failed to develop facts in state-court proceedings was the prosecution's suppression of favorable, material evidence, then the petitioner will demonstrate cause and prejudice to excuse any default by establishing the elements of the underlying Brady claim. Banks, 540 U.S. at 692. Because Petitioner in this case relied on the representations made by the state prosecutors that they complied with their Brady disclosure obligations, Petitioner “was entitled to treat the prosecutor's submissions as truthful.” Id. at 698. Therefore, Petitioner “has shown cause for failing to present evidence in state court capable of substantiating his . . . Brady claim.” Id.
B. The Prosecution Suppressed Material Exculpatory and Impeachment Evidence in Violation of Brady v. Maryland
The Fourteenth Amendment's Due Process Clause protects against “the suppression by the prosecution of evidence favorable to an accused.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Initially, the Court limited the right to evidence that was material “either to guilt or to punishment” and only if requested by the defendant. Id. Later, the Court expanded the scope of Brady claims to include impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). Similarly, the constitutional right became untethered to a request or lack thereof made by the defendant. Kyles v. Whitley, 514 U.S. 419, 433 (1995).
In recognizing this constitutional right, the U.S. Supreme Court focused on the principle of avoiding unfairness to the accused, which is results when the prosecution withholds exculpatory evidence. Brady, 373 U.S. at 87-88. Further, the doctrine recognizes the unique role in the administration of criminal justice played by the prosecution as the architect of the proceeding. Id. at 88. As such, the Brady Court determined that the denial of this constitutional right does not depend on the “good faith or bad faith of the prosecution.” Id. at 87. Indeed, prosecutors have an affirmative duty “to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Kyles, 514 U.S. at 437.
Petitioners seeking habeas relief based on an alleged Brady violation must demonstrate that disclosure of the suppressed evidence could have led to a different result, properly understood as the reasonable probability of a favorable result. Bagley, 473 U.S. at 682. The touchstone of materiality under Brady claims centers on whether the “suppression undermines confidence in the outcome of the trial.” Id. at 678. Reviewing courts should consider any adverse effect of the nondisclosure on the preparation or presentation of the defendant's case, including reasonable assumptions caused by the prosecution's misrepresentations. Id. at 682-83.
A reasonable probability of a different result does not mean showing that disclosure of the favorable evidence would have led to an acquittal. Bagley, 473 U.S. at 680. Rather, petitioners must only show that the suppressed evidence casts doubt on the verdict as one worthy of confidence. Kyles, 514 U.S. at 434. Reviewing courts make this determination based on the collective effect of the suppressed evidence, as opposed to item by item. Id. at 437.
The Third Circuit has stated three elements to a successful Brady claim: (1) the evidence must favor the accused as either exculpatory or impeaching evidence; (2) the State must have suppressed the evidence, either willfully or inadvertently; and (3) the evidence must satisfy the materiality requirement, defined as being the reasonable probability of a different result. Dennis v. Sec'y, Pa. Dep't of Corr., 834 F.3d 263, 284-85 (3d Cir. 2016).
C. The Commonwealth Concedes That It Violated Petitioner's Federal Right
In the instant case, the Commonwealth admits that it suppressed multiple pieces of favorable, material evidence and that the cumulative effect of the suppressed evidence casts doubts upon whether Petitioner received a fair trial. Resp. at 6. Hence, the Commonwealth concedes that this Court should grant habeas relief to Petitioner on his first claim. Id. Specifically, the Commonwealth withheld favorable evidence to Petitioner, including but not limited to, evidence pointing to an alternative suspect - Gary Lupton - and a photo array that key witnesses used to identify Petitioner that contained a picture of Lupton and not Petitioner. Id. The Commonwealth also admits that it misrepresented the full extent of its Brady violation by telling the trial court that the photo array shown to witnesses no longer existed. Resp. at 4. In sum, the suppressed evidence satisfies Brady's materiality requirement because it casts great doubt on Petitioner's guilt.Resp. at 6.
The court notes that the standards set out in the Antiterrorism and Effective Death Penalty Act of 1996 do not apply because the Pennsylvania courts did not adjudicate Petitioner's Brady claim on its merits. Bronshtein v. Horn, 404 F.3d 700, 710 n.4 (3d Cir. 2005).
III. CONCLUSION
Petitioner's claim that the prosecution violated his federal rights by suppressing favorable material evidence has merit; therefore, a conditional writ of habeas corpus should be issued for the claim. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 24th day of May 2023, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that Petitioner be afforded habeas relief on his Brady claim. The Commonwealth shall retry Petitioner within 180 days or release him from custody related to this case.
It be so ORDERED.