On Appeal from the United States District Court for the Middle District of Pennsylvania. (Dist. Ct. No. 96-cv-01554).
The opinion of the court was delivered by: Richard L. Nygaard United States Circuit Judge
SURPETITION FOR REHEARING
BEFORE: SCIRICA, Chief Judge, SLOVITER, NYGAARD, ALITO, ROTH, MCKEE, BARRY, AMBRO, SMITH, FUENTES, VAN ANTWERPEN and GREENBERG, Circuit Judges*fn1
The Petition for rehearing filed by the Appellees in the above-entitled matter having been submitted to the judges who participated in the decision of this court and to all other available circuit judges in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges in regular active service not having voted for rehearing by this court en banc, the Petition for Rehearing is hereby DENIED. Judge GREENBERG would have granted panel rehearing.
Mr. Hubert L. Michael GREENBERG, Circuit Judge, dissenting from the denial of the petition for panel rehearing.
I respectfully dissent from the denial of the petition filed by the respondents-appellees, Martin Horn, the Commissioner of the Pennsylvania Department of Corrections, and certain other state officials requesting panel rehearing of an order denying the petitioner-appellant Hubert L. Michael's motions to dismiss an appeal filed in his name in this federal habeas corpus case and simultaneously vacating the order from which the appeal had been taken and remanding the case for further proceedings.*fn2 The proceedings in this case are unusual in that Michael, the theoretical appellant, in whose name the petition was filed in the district court, prevailed in that court as he asked that it dismiss his petition and it did so. Thus, as might be expected, he does not want us to disturb the district court's order. Indeed, he has urged that we should dismiss this appeal just as he had urged that the district court should dismiss the petition even though his attorneys claimed to have filed it in his interest. Nevertheless, we have denied his motions to dismiss the appeal, have entered an order vacating the very district court order that he sought and obtained dismissing the habeas corpus petition, and have remanded the case to "determine whether habeas corpus relief is warranted." Accordingly, we have put Michael in the unusual, though probably not unique, position of being an involuntary federal litigant. We now are denying rehearing of that order that remarkably the panel entered against the wishes of both parties to this appeal.
The district court proceeding under the Antiterrorism and Effective Death Penalty Act of 1996 followed extensive litigation in the Pennsylvania state courts arising from the absolutely certain fact that on July 12, 1993, Michael, using a firearm, murdered 16-year old Trista Eng, a total stranger to him, who had been on her way to her summer job at a Hardee's restaurant when Michael encountered her. At the time of the murder, Michael, who was facing rape charges, not involving Trista Eng, that he felt were not justified, murdered her by reason of his anger over the charges. After Michael murdered her, he concealed her body in a wooded area. He later confessed to his brother that he had committed this crime and told him where he had concealed her body. His brother and other family members then searched for and found her body, following which they notified the Pennsylvania state police. In the ensuing Pennsylvania state court prosecution, Michael pleaded guilty to murder and was sentenced to death. On the appeals that followed the Supreme Court of Pennsylvania first affirmed the judgment of the sentence of death, Commonwealth v. Michael, 674 A.2d 1044 (Pa. 1996), and then, after post-conviction relief proceedings, affirmed the denial of post-conviction relief, Commonwealth v. Michael, 755 A.2d 1274 (Pa. 2000).*fn3
Following the completion of the state proceedings, the Capital Habeas Corpus Unit of the Defender Association of Philadelphia activated federal habeas corpus proceedings that its predecessor had filed in Michael's name in the district court. Ultimately the district court terminated those proceedings without considering the petition on the merits when it granted Michael's motions to dismiss the petition. Michael v. Horn, No. 3:CV-96-1554, 2004 WL 438678 (M.D. Pa. Mar. 10, 2004). The appeal that we have considered is from that dismissal.
The district court initiated its thorough opinion dated March 10, 2004, filed after difficult and extensive proceedings, by indicating that "[a]t issue in this matter is whether death-sentenced Hubert Michael is competent and has knowingly, rationally, and voluntarily chosen to waive pursuant of a collateral challenge to his state court conviction and sentence." Id. at *1. The court concluded its opinion as follows:
To determine whether Mr. Michael is competent to decide to dismiss counsel and this habeas corpus proceeding, this Court sought to provide 'a constitutionally adequate fact-finding inquiry to make a reliable determination . . . .' Mata v. Johnson, 210 F.3d 324, 327 (5th Cir. 2000). That process included (1) a current examination by a highly qualified expert, (2) an opportunity for the parties to present pertinent evidence, and (3) an examination of Mr. Michael in open court concerning his decision to waive further proceedings. For purposes of this proceeding, Mr. Michael was also appointed independent counsel.
Throughout these proceedings, Mr. Michael has maintained the consistent position that he does not seek federal court intervention with respect to his conviction and sentence. Having found, without hesitation, that Mr. Michael is competent, and has made a knowing, rational and voluntary decision, this Court has no choice but to honor that decision.
As did the death-sentenced inmate in Comer [v. Stewart, 230 F. Supp. 2d 1016 (D. Ariz. 2002)], Mr. Michael 'has made a competent and free choice, which "is merely an example of doing what you want to do, embodied in the word liberty."' 230 F. Supp. 2d at 1072. Also worth reiterating here is the Eleventh Circuit's admonition in Sanchez-Velasco v. Sec'y of the Dep't of Corr., 287 F.3d 1015, 1033 (11th Cir. 2002), affirming a district court's finding that a defendant competently, knowingly and voluntarily waived federal court collateral review.
[W]e should not forget the values that motivated the Supreme Court's Whitmore [v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717 (1990)] decision and what is really at stake in this kind of case. These cases are about the right of self-determination and ...