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Dooley v. Dooley

argued: March 3, 1987.

JOHN HENRY DOOLEY, JR. P-3111
v.
GEORGE PETSOCK JOHN HENRY DOOLEY, JR. APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. No. 85-316 E

Author: Garth

BEFORE: GIBBONS, Chief Judge, SEITZ and GARTH, Circuit Judges

Opinion OF THE COURT

GARTH, Circuit Judge:

On this appeal we review the district court's summary dismissal of a habeas corpus petition. The petition essentially raises a two-part ineffective assistance of counsel claim against the petitioner's original trial counsel. We affirm.

I.

In 1974, John Henry Dooley faced an arson charge in the Court of Common Pleas of Crawford County, Pennsylvania. Douglas Ferguson, an assistant public defender, was appointed to serve as Dooley's legal counsel. In a preliminary hearing held in July of 1974, Paul Shafer, the district attorney, attempted to show that Dooley was a suspect in some other fires for which he had not ten been charged. At the preliminary hearing, Ferguson became award of Shafer's intention to make an offer of proof at Dooley's trial in regard to two of these uncharged fires -- the "Floch" and "Dunn" fires. A jury trial was held, and Shafer made an offer of proof at trial as to the uncharged Floch and Dunn fires in an attempt to establish a pattern of arsons. Defense attorney Ferguson successfully managed to exclude this evidence. Upon conclusion of the trial, the jury found Dooley not guilty of the single arson charge.

On June 30, 1977, Dooley was arrested in connection with a house fire that occurred in Meadville, Pennsylvania (Crawford County). After being interviewed at the City Police Station by lieutenant Bernard Stein and Sergeant Robert Mullen, Dooley was charged with arson and incarcerated in the Crawford County Jail. The next day Dooley attempted suicide by slashing his wrists with a porcelain light bulb holder. He was taken to the hospital for treatment and thereafter returned directly to the jail. On July 8, 1977, Robert Campbell, an assistant public defender, was assigned to represent Dooley.

At some time prior to Dooley's second arson arrest, his former defense counsel, Douglas Ferguson, had become the Crawford County District Attorney. On three occasions after Dooley's arrest, he was taken to District Attorney Ferguson's office for questioning. The first two of these interviews occurred on July 22, 1977, and the third occurred on July 26, 1977. Dooley waived his right to counsel on all three occasions, stating that he did not desire to have Campbell present at the interviews.

During the first interview. Lieutenant Stein and District Attorney Ferguson were present, and Stein asked most of the questions. During the second interview, which was conducted later that same day, Stein, Robert Bailey (an assistant district attorney), and Ferguson, who conducted the interview, were present.

On July 25, 1977, Dooley again tried to commit suicide by slashing his wrists. He received emergency room treatment and was taken for an emergency psychiatric evaluation before Dr. Mesa. Dr. Mesa listened to Dooley for half an hour, and although admitting that he was "without enough background," Dr. Mesa concluded that Dooley had an anti-social personality and was a con artist who did not suffer from mental illness. Supplemental Appendix at 4. Dooley was immediately returned to the Crawford County Jail.

Dooley's third interview was conducted at District Attorney Ferguson's Office on the day following the second suicide attempt. Both Stein and Ferguson were present, and Ferguson conducted the interview. Dooley was subsequently charged in eight criminal informations in the Court of common Pleas of Crawford county. He was charged with five single counts of arson, two combined counts of arson and endangering property, and one count of escape. Two of the arson counts involved the Floch and Dunn fires which had been the subject of the offer of proof during Dooley's trial on the 1974 arson charge -- the trial at which Ferguson had served as his defense counsel.

On September 20, 1977, Dooley pled guilty before the Honorable F. Joseph Thomas, pursuant to a plea bargain, to five counts of arson and one count of escape. The Floch and Dunn fires were two of the arson counts that Dooley pled guilty to. At the plea colloquy, Dooley was represented by Attorneys Campbell and Musika, the latter acting as co-counsel with Campbell for purposes of the plea. Neither Musika nor Campbell had requested an evidentiary hearing to determine whether Dooley was competent to enter his guilty plea. As part of the plea bargain, Musika did, however, request a psychiatric examination prior to sentencing. The court entered an order committing Dooley to the State Correctional Diagnostic and Classification Center at Pittsburgh for a period not to exceed 60 days in order to obtain a psychiatric and psychological evaluation to aid in the sentencing decision.

Four doctors submitted psychiatric or psychological reports to the Pennsylvania court. Two of these reports generally supported the conclusion that Dooley was suffering from schizophrenia or other severe mental illness. Appendix at 371-74. The remaining two reports did not support such a conclusion. Supplemental Appendix at 5.

On January 17, 1978, Dooley was sentenced to a term of two to five years on the escape charge and a term of four to eight years on each of the five arson counts. All sentences were to be served consecutively, giving Dooley a minimum term of 22 years and a maximum term of 45 years. Dooley was unsuccessful in his state appeals of his convictions.

On February 7, 1978, Dooley filed his first petition under the Pennsylvania Post Conviction Hearing Act (P.C.H.A.). On February 24, 1978, Dooley filed a petition to withdraw his guilty plea. This order was denied, and Judge Thomas entered an order appointing new counsel (Thomas E. Lindquist) for Dooley for this first P.C.H.A. proceeding.

Dooley's amended petition raised two grounds for relief. First, Dooley claimed that, Campbell and Musika, his original counsel, had promised him that he would be sentenced to Warren State Hospital for five years if he accepted the plea bargain. Second, Dooley claimed that he was unlawfully induced to enter his guilty plea because he had made inculpatory statements in exchange for additional visitation and telephone rights while incarcerated at the Crawford County Jail. No ineffective assistance of counsel claim against Campbell was raised. A hearing was held on October 24, 1978, and the petition was denied on January 29, 1979. On August 22, 1980, the Superior Court of Pennsylvania affirmed the denial of the petition.

In May or June of 1981, Dooley filed his second P.C.H.A. petition. Evidentiary hearings in the Pennsylvania Court of Common Pleas were held before Judge Walker on June 10 and June 14, 1983. At these hearings, Dooley was represented by Attorney M. Dan Mason. Dooley raised two grounds for relief. First, he claimed that Campbell had not provided him with effective assistance of counsel in that Campbell had not sought an evidentiary hearing to determine whether Dooley was competent to enter his guilty plea. Second, he claimed that Campbell was ineffective in failing to request that Ferguson, the district attorney, be disqualified from prosecuting Dooley because of Ferguson's prior representation of Dooley on a similar arson charge.

On October 20, 1983 Dooley's second P.C.H.A. petition was denied. Judge Walker found that Dooley had been fully able to assist Campbell in his defense, and that Campbell was not ineffective for failing to seek an evidentiary hearing regarding Dooley's competency. Judge Walker also found that Dooley had produced no evidence to sustain his burden on the ineffective assistance of counsel claim premised on Campbell's failure to move for Ferguson's disqualification. The denial of Dooley's second P.C.H.A. petition was affirmed by the Superior Court and the Supreme Court of Pennsylvania.

On November 29, 1985, Dooley filed a petition for writ of habeas corpus in the United States District Court of the Western District of Pennsylvania. Dooley's petition stated the grounds for which he was seeking relief in federal court as "ineffective counsel/double jeopardy." Appendix at 357.

On January 22, 1986, the district court ordered Dooley to file an amendment to his petition specifying an particularizing the allegations made in his petition for habeas corpus. Appendix at 362. Dooley submitted a motion for appointment of counsel to assist him in the preparation of his additional submissions. The district court denied this motion. As an amendment to his petition, Dooley then submitted to the district court a copy of the brief prepared by Attorney Mason. which had previously been submitted to the Pennsylvania state court, as well as psychological evaluations of himself.

On the basis of these documents, the district court construed Dooley's petition as raising two ineffective assistance of counsel claims against Campbell for (1) failing to request an evidentiary hearing regarding Dooley's competency to stand trial or plead guilty, and (2) failing to seek District Attorney Ferguson's disqualification from prosecuting the case on the basis of Ferguson's earlier representation of Dooley on a similar charge.*fn1 The district court dismissed Dooley's petition for habeas corpus ...


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