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Grier v. Klem

January 12, 2010

EMMITT GRIER, JR., APPELLANT
v.
SUPERINTENDENT EDWARD J. KLEM; ERIE COUNTY DISTRICT ATTORNEY; COMMONWEALTH OF PENNSYLVANIA; OFFICE OF THE PROTHONOTARY



On Appeal from the United States District Court for the Western District of Pennsylvania (No. 05-cv-00005E) District Judge: Honorable Maurice B. Cohill.

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge

PRECEDENTIAL

Argued on December 16, 2009

Before: FISHER, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

Appellant-Plaintiff Emmitt Grier, Jr. ("Grier") appeals from the District Court's decision granting AppelleeDefendants Erie County District Attorney's ("District Attorney") and Superintendent Edward Klem's motion to dismiss his § 1983 claim, determining it is barred by the Heck rule.*fn1 For the following reasons, this Court will vacate the District Court's order and remand for further proceedings.

I.

Grier was convicted of two counts of rape, one count of attempted rape, one count of burglary and three counts of unlawful restraint. He received a sentence of twenty-eight and-one-half to seventy-five years of imprisonment. The facts underlying these charges are as follows. On June 30, 1998, a perpetrator entered Ms. Loretta Hansbrew's ("Ms. Hansbrew") home while she was sleeping, taped her eyes and hands, and then raped her (the "June incident"). She never saw her assailant's face or recognized his muffled voice, but she noticed that he was African-American. Five months later, in November, Ms. Hansbrew was attacked again (the "November incident"). A perpetrator had hidden in her van. He demanded she pull over while she was driving. Then, he taped her eyes, bound her feet, and unsuccessfully attempted to rape her. Again, Ms. Hansbrew did not see his face.

On August 31, 1999, Grier visited Ms. Hansbrew's home to request water for his radiator. He knew Ms. Hansbrew because he was her daughter's fiancé. During the visit, Grier and Ms. Hansbrew had a sexual encounter (the "August incident"). Ms. Hansbrew reported the incident to the police, who took Grier into custody.

Grier waived his Miranda rights upon arrest. He offered to make a videotaped statement outside the presence of counsel. In it, he admitted to having had a sexual encounter with Ms. Hansbrew on August 31, 1999.A half-hour after the completion of the first interview, a detective initiated a second videotaped interview where he asked Grier about the June and November incidents. Grier confessed to both of those crimes as well.

Following both the June and August incidents, medical personnel used rape kits to gather biological evidence from Ms. Hansbrew. The rape kits were sent to the Pennsylvania State Police Laboratory to be compared to determine if the same perpetrator had committed both crimes. The kits were not analyzed, however, because Grier gave videotaped statements confessing to these crimes. Police testified that a state laboratory policy prevents the laboratory from analyzing DNA evidence in cases where the identity of the defendant is not in question due to a taped confession.

Grier later testified, and continues to contend, that he did not commit the June and November crimes. He claims he confessed to the crimes in error because he was extremely emotional and confused.

Grier's defense attorneys never moved to suppress the videotaped statements, and neither Grier nor the Commonwealth had the DNA tested. Grier was initially represented by public defender A.J. Adams ("Adams"). Despite Grier's requests, Adams did not move to suppress Grier's videotaped statements, concluding such a motion would be baseless. Due to a personality conflict, Adams was permitted to withdraw from Grier's case in April 2000.

Grier contends his subsequent attorney, James Pitonyak ("Pitonyak"), did not follow or convey his instructions to have DNA testing done on both rape kits. Pitonyak, however, claims that he and Grier discussed, but decided against, requesting DNA testing. The rape kits were never subjected to DNA testing and the jury convicted Grier primarily ...


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