Appeal from the District Court for the Eastern District of Pennsylvania (Civil Action No. 99-cv-00161) District Judge: Honorable J. Curtis Joyner
The opinion of the court was delivered by: Fuentes, Circuit Judge.
On Remand from the Supreme Court of the United States December 8, 2009
BEFORE: McKEE, Chief Judge, FUENTES, and STAPLETON, Circuit Judges
In 1983, a state court jury convicted Joseph Kindler of killing a witness against him and recommended a sentence of death. Following his trial, but before the death sentence had been formally imposed, Kindler filed several post-verdict motions. Before those motions could be heard, Kindler escaped from custody, was captured, escaped again, and was finally arrested and returned to Philadelphia in 1991. Kindler's efforts to reinstate his post-verdict motions upon his return were unsuccessful, and his judgment of conviction was thereafter affirmed, based on Pennsylvania's fugitive forfeiture doctrine. Commonwealth v. Kindler, 639 A.2d 1, 3 (Pa. 1994) ("Kindler I"); Commonwealth v. Kindler, 722 A.2d 143, 146-48 (Pa. 1998) ("Kindler II"). On review of his petition for habeas relief, we agreed with the District Court that the state's forfeiture rule did not provide an adequate basis to bar federal habeas review. Kindler v. Horn, 291 F. Supp. 2d 323, 343, 351 (E.D. Pa. 2003) ("Kindler III"); Kindler v. Horn, 542 F.3d 70, 78-80 (3d Cir. 2008) ("Kindler IV"). After granting certiorari, the Supreme Court vacated our decision and remanded the case, concluding that a state procedural rule is not automatically inadequate and unenforceable just because the state rule is discretionary rather than mandatory. Beard v. Kindler, 130 S. Ct. 612, 618 (2009) ("Kindler V"). Kindler now argues on remand that Pennsylvania did not apply a discretionary rule, but, instead, applied a mandatory rule that represented a break from past decisions. We agree and, for the following reasons, we will affirm in part and reverse in part the District Court's order.
Kindler's case is well-known. In 1982 he burglarized a store in Pennsylvania with Scott Shaw and David Bernstein and was captured by the police. He escaped. Meanwhile, Bernstein fingered Kindler as the mastermind of the burglary and offered to testify against both Kindler and Shaw. Kindler was then arrested and released on bail. While out on bail he devised and carried out a plan to prevent Bernstein from testifying. Working with Shaw's girlfriend, Michelle Raifer, Kindler lured Bernstein from his apartment, brutally struck him over the head twenty times with a baseball bat, jabbed him five times in the ribs with an electric prod, dragged Bernstein's immobilized body into Raifer's car, and drove to the banks of the Delaware River, where Kindler wrapped a cinder block around Bernstein's neck and threw him into the water.
A jury found Kindler guilty of murder and recommended a death sentence. Afterwards, Kindler filed post-verdict motions in which he argued, among other things,
(1) that the instructions given to the jury created a reasonable likelihood that, when deciding on whether to recommend the death penalty, the jury believed it could only consider mitigating circumstances if those circumstances were unanimously agreed upon and (2) that the prosecutor had engaged in misconduct by improperly vouching for the evidence against him. While those motions were pending, on September 19, 1984, Kindler organized an effort to saw through the external bars of his prison, escaped, and fled to Canada. Approximately seven months later, he was arrested, once again, for burglary. Once again, he was imprisoned. And, once again, he escaped, this time through an organized effort in which Kindler's fellow inmates hoisted him up to the roof through a skylight, where he rappelled down the side of the prison using a rope made of bed sheets. A fugitive for two more years, Kindler was finally identified by Canadian viewers of the television program "America's Most Wanted" and arrested in September 1988. He contested extradition and was not returned to Pennsylvania until September 16, 1991.
Kindler returned to find that, at the request of the Commonwealth, the trial judge had dismissed his post-verdict motions on account of his escape. Kindler filed a motion to reinstate those motions. In an oral ruling, the Court of Common Pleas denied the motion, finding that "the defendant did voluntarily remove himself from the Detention Center by escaping and loses all rights and privileges for post-trial motions." S.A. 63. In October 1991, Kindler's death sentence was formally imposed. On appeal, the Pennsylvania Supreme Court affirmed the trial judge's decision to deny his motion to reinstate his post-verdict motions, first explaining that the general rule in Pennsylvania at the time was that fugitives have "no right to any appellate review" and then crafting a new rule barring appellate review if (1) the defendant's flight has a connection to the court's ability to rule on the defendant's case and (2) the sanction of dismissing the defendant's appeal is reasonable under the circumstances. Kindler I, 639 A.2d at 3.
Kindler then filed for relief under Pennsylvania's Post-Conviction Relief Act (the "PCRA"), 42 Pa. C.S. §§ 9541 et seq. (West 2007), arguing, among other things, that counsel was constitutionally ineffective at the death penalty phase of his trial. The PCRA court denied his petition and the Pennsylvania Supreme Court affirmed, each concluding that Kindler had no right to PCRA review because the Pennsylvania Supreme Court had previously ruled that Kindler forfeited his right to an appeal by escaping. Kindler II, 722 A.2d at 146-48.
Kindler then turned to the federal courts for habeas relief. The District Court concluded that the state fugitive forfeiture rule used to dismiss Kindler's post-trial motions was inadequate to bar federal review because it was not "clearly established" that Pennsylvania courts were required to dismiss a fugitive's appeals in situations where the fugitive had fled and been captured before the appellate process was ever initiated. After finding constitutional errors in the penalty phase of his trial, the District Court issued an order granting in part and denying in part Kindler's Petition for Writ of Habeas Corpus. Kindler III, 291 F. Supp. 2d at 343, 351-52 (E.D. Pa. 2003). On appeal, we agreed that the rule is inadequate and, upon reviewing the merits, affirmed the District Court's order granting habeas relief on Kindler's claim that the jury instructions violated the Supreme Court's decision in Mills v. Maryland, 486 U.S. 367 (1988) and reversed the District Court's order denying habeas relief on Kindler's claims that his counsel was constitutionally ineffective and that he was the victim of prosecutorial misconduct. Kindler IV, 542 F.3d at 72.
The Supreme Court then granted certiorari to decide whether "a state procedural rule [is] automatically 'inadequate' under the adequate-state-grounds doctrine-and therefore unenforceable on federal habeas review-because the state rule is discretionary rather than mandatory." Kindler V, 130 S. Ct. at 614-15. During the oral argument in the Supreme Court, the parties agreed that the answer to this question was "no." Transcript of Oral Argument at 29-31, Kindler V, 130 S. Ct. 612 (2009)(No. 08-992). The Supreme Court thus held that "a discretionary rule can serve as an adequate ground to bar federal habeas review." Kindler V, 130 S. Ct. at 618. The court vacated our judgment and remanded for further proceedings consistent with its opinion. With the Supreme Court's holding in mind, ...