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Fountain v. Kyler

August 25, 2005

CHARLES VINCENT FOUNTAIN, APPELLANT
v.
KENNETH D. KYLER; ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 02-cv-00897) District Judge: Honorable James M. Munley.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Argued July 11, 2005

Before: SLOVITER and McKEE, Circuit Judges, and FULLAM,*fn1 District Judge

OPINION OF THE COURT

In this case, we are asked to extend the jurisprudence regarding ineffective assistance of counsel to counsel's failure to predict the Pennsylvania Supreme Court's later ruling regarding the non-retroactivity of an amended death penalty statute. We decline to extend the law that far.

Charles Vincent Fountain, who is currently serving a life sentence for a 1976 homicide, appeals from the denial by the United States District Court for the Middle District of Pennsylvania of his application for a writ of habeas corpus. After the District Court's denial, we issued a certificate of appealability ("COA") on the sole issue of whether his "remand counsel was ineffective for advising him not to appeal. . . ." App. at 5. The resolution of this question turns on whether Fountain's remand counsel provided ineffective assistance for advising him not to take an appeal following his remand proceedings due to her belief -- that later proved to be erroneous -- that the Pennsylvania courts would give retroactive effect to a death penalty statute enacted after Fountain's alleged crime.*fn2

I.

In order to resolve this matter, we must set forth in some detail the procedural posture of Fountain's case, as well as the various developments in Pennsylvania capital punishment law that occurred in the late 1970's.

In late September 1976, a jury sitting in the Court of Common Pleas for Dauphin County found Fountain guilty on one count of murder in the first degree and on two counts of robbery for the 1976 robbery and murder of Joseph Geller. See generally Commonwealth v. Fountain, 402 A.2d 1014 (Pa. 1979). At sentencing, the jury recommended a punishment of death for the murder conviction. In returning its recommended sentence, the jury utilized the then-applicable death-penalty provisions of Pennsylvania's Sentencing Code. Id. at 1015.

After this bifurcated trial, Fountain's trial counsel requested leave to withdraw. The court granted this request and thereupon appointed Marilyn Zilli, who was then serving as Assistant Public Defender for Dauphin County, to represent Fountain. 402 A.2d at 1015. Zilli represented Fountain in the post-verdict proceedings before the Court of Common Pleas, on Fountain's direct appeal to the Supreme Court of Pennsylvania, and on the subsequent remand to the Court of Common Pleas.

The trial court followed the jury's recommendation and imposed the death penalty on Fountain for the murder conviction; it further imposed two sentences of ten to twenty years for the robbery convictions. 402 A.2d at 1015. Fountain thereafter filed a direct appeal to the Pennsylvania Supreme Court in which he argued, inter alia, that Pennsylvania's death penalty scheme was unconstitutional and that his trial counsel had provided ineffective assistance at both stages of the bifurcated trial. Id. at 1015-16.

Meanwhile, in November 1977, while Fountain's case was pending on direct appeal, the Supreme Court of Pennsylvania held in Commonwealth v. Moody, 382 A.2d 442 (Pa. 1977), that the provisions of the Pennsylvania Sentencing Code pertaining to the imposition of the death penalty were unconstitutional. Specifically, the Moody Court found that the Sentencing Code did not allow a jury to consider sufficiently the particular circumstances of the crime or the character and record of the individual offender. 382 A.2d at 444-49. Of course, the provisions held unconstitutional in Moody were the very provisions that the jury and judge had utilized in determining and imposing Fountain's punishment. On September 13, 1978, in direct response to the Moody decision, the Pennsylvania General Assembly passed a new death penalty sentencing statute to remedy the previous law's constitutional shortcomings.

On July 5, 1979, the Supreme Court of Pennsylvania, relying on its holding in Moody, ruled on Fountain's direct appeal and vacated his death sentence. Fountain, 402 A.2d at 1015 ("Moody . . . requires the vacation of the death penalty imposed in this case and a remand for resentencing."). With respect, however, to Fountain's claims of ineffective assistance of trial counsel, the Court determined that there was "an insufficient record" to resolve those issues and thus remanded the case "to the trial court to conduct an evidentiary hearing on all preserved claims of ineffective assistance of trial counsel." Fountain, 402 A.2d at 1015-16.

Pursuant to this directive, the Court of Common Pleas conducted an evidentiary hearing regarding Fountain's ineffectiveness claims. On December 20, 1979, the court issued an opinion holding that Fountain's trial counsel had provided constitutionally-effective representation. The following day the court sentenced Fountain to a term of life imprisonment for the ...


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