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Thomas v. Varner

November 4, 2005; as amended January 18, 2006


On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 02-cv-04778). District Judge: Honorable Bruce W. Kauffman.

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


Argued April 22, 2005

Before: ROTH, FUENTES, and STAPLETON, Circuit Judges.


Following a jury trial, Clayton Thomas was convicted of the shooting death of Harry James, the owner of a speakeasy in Philadelphia. He was also convicted of crimes related to the wounding of Peter Fuller, a patron of the speakeasy. Thomas alleges that his identification by Fuller was tainted by an unconstitutionally suggestive photo array and that his trial counsel was ineffective for failing to move to suppress or otherwise object to Fuller's identification at trial. After finding defense counsel's performance deficient, the District Court issued a writ of habeas corpus directing the Commonwealth to retry or release Thomas. Because we agree with the District Court that counsel's error in failing to move to suppress or object to the identification at trial fatally undermined the reliability of the verdict, we will affirm.


The facts underlying this appeal were succinctly summarized by the Pennsylvania Superior Court in rejecting Thomas's appeal in his state post-conviction proceedings:

The charges stemmed from the robbery of a speakeasy located in the City of Philadelphia. Accompanied by a person who acted as lookout, [Thomas] entered the speakeasy brandishing a firearm and ordered the occupants to the floor. The proprietor of the establishment, Harry James, had been playing chess with a customer, Peter Fuller. Mr. James was fetching a beer for another customer when [Thomas] arrived. Instead of complying with [Thomas's] order, Mr. James leaped at [Thomas] and began to struggle with him. During the course of this altercation, [Thomas] shot Mr. James in the chest. The victim subsequently died of his wound. [Thomas] also shot Mr. Fuller in the shoulder. Mr. Fuller survived.

(App. 684-85.)

After the robbery and shooting, the police talked with at least two eyewitnesses, Christopher Young and Fuller. Young, an acquaintance of Thomas, originally failed to identify Thomas as one of the assailants, but, after making several inconsistent statements about the incident, did identify Thomas. He later testified that he was threatened by the police, and that he feared being arrested if he did not name someone. He also had several criminal charges pending against him when he testified on behalf of the Commonwealth at Thomas's trial.

Fuller, the surviving shooting victim, described his assailant as a black male, and was shown some 750 pictures of black males arrested for robbery, but made no identification at that time.*fn1 Weeks later, he was shown about 10-12 more photos, but still could not identify anyone. At that time, the detectiveallegedly pulled two pictures from the group and asked Fuller to take a "real good" look at them, and Fuller made a tentative identification.*fn2 At the pretrial hearing and at trial, Fuller testified that he would not have made the identification if the detective had not strongly suggested that the two pictures highlighted were of the perpetrators. Fuller could not make an in-court identification at the pre-trial hearing. Because no identification was made, counsel for Thomas withdrew his pre-trial suppression motion as to identification, as there was no identification to be suppressed. However, at trial, Fuller made a spontaneous in-court identification of Thomas, and counsel failed to object or move to suppress the identification. At trial, the testimony of Young and Fuller's in-court identification were the only evidence connecting Thomas to the crime.

Thomas was convicted by a jury of second-degree murder, robbery, aggravated assault, and possession of an instrument of crime, and was sentenced to imprisonment for life. Thomas's co-defendant, his son Shaurn, was acquitted of all charges against him, which arose from his alleged role as the lookout.

Thomas appealed from his conviction, and the Superior Court affirmed; Thomas did not seek certification with the Pennsylvania Supreme Court. Thomas thereafter filed pro se for state post-conviction relief, and then retained counsel, who filed an amended petition and a supplemental petition. The post-conviction court summarily denied relief on all claims, including his ineffective assistance of counsel claim, without holding an evidentiary hearing. The Superior Court affirmed and the Pennsylvania Supreme Court denied certification.

After exhausting his state remedies to no avail, Thomas filed a petition for habeas corpus in the Eastern District of Pennsylvania, making claims of (1) ineffective assistance of counsel, based on (a) trial counsel's failure to object to an alleged Bruton violation,*fn3 and (b) counsel's failure to move to suppress an unreliable witness identification, and (2) prosecutorial misconduct in improperly bolstering the credibility of certain witnesses.*fn4 The District Court referred the case to a Magistrate Judge, who held an evidentiary hearing. The Magistrate Judge recommended granting the habeas petition solely with respect to the ineffective assistance claim for failure to move to suppress the in-court identification and recommended denying it with respect to all other claims. The Commonwealth filed objections to the recommendation that the petition be granted, while Thomas did not file any objections. The District Court adopted the recommendation with respect to denying the specified claims, and, ...

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