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Angel Pabon v. Superintendent S.C.I. Mahanoy; the District Attorney

July 12, 2011

ANGEL PABON, APPELLANT
v.
SUPERINTENDENT S.C.I. MAHANOY; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 07-cv-04199) District Judge: Honorable Eduardo C. Robreno

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

PRECEDENTIAL

Argued September 23, 2010

Before: MCKEE, Chief Judge, AMBRO and CHAGARES, Circuit Judges

OPINION OF THE COURT

I. OVERVIEW

Angel Pabon appeals the District Court‟s dismissal of his pro se petition for habeas corpus as untimely. He is serving consecutive life sentences for two related murder convictions in Pennsylvania state court. He concedes that his federal habeas petition was not timely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, but contends that equitable tolling should be granted.

Specifically, Pabon maintains that his inability to speak, read, or write English, coupled with the prison‟s lack of Spanishlanguage legal materials and repeated denials of translation assistance, are extraordinary circumstances that prevented him from timely filing his habeas petition despite diligent efforts to pursue his federal claims.

The District Court dismissed Pabon‟s habeas petition as untimely and denied equitable tolling. We granted a certificate of appealability ("COA") on that issue. We subsequently issued an order staying oral argument due to a potential defect in our COA, as it had not addressed whether Pabon had made a "substantial showing of the denial of a constitutional right," a jurisdictional prerequisite before a COA may issue. 28 U.S.C. § 2253(c). Our jurisdiction turns on whether the trial court may have committed a Sixth Amendment Confrontation Clause violation under Bruton v. United States, 391 U.S. 123 (1968), by allowing a non- testifying co-defendant‟s confession to be admitted into evidence despite its potential to prejudice Pabon‟s defense.

We conclude that Pabon has made a substantial showing that his Sixth Amendment right to confrontation may have been violated. On the equitable tolling issue, we hold that the facts Pabon alleges regarding his language inability (if true), coupled with the prison system‟s lack of Spanish- language legal materials or interpreters, would be extraordinary circumstances. We also hold that Pabon exercised reasonable diligence in pursuing his claims. Thus, we reverse the District Court‟s ruling that Pabon was not reasonably diligent, vacate its order of dismissal, and remand for an evidentiary hearing on the factual issue of whether Pabon faced the extraordinary circumstances he claims.

II. BACKGROUND

A. The Crime

The back-story begins with Elias Pagan, a drug dealer who in 1997 controlled the corner of Eighth and Birch Streets in Philadelphia. Six men who worked for Pagan were involved in the crime at issue or the subsequent trial: Carlos Robles ("Guatauba"), Arisbel Ortiz, George Roman, JoseDeJesus, Jonathan Hernandez, and the petitioner, Pabon. Aileen Centeno, Pagan‟s common-law wife, lived with him and knew these men.

On March 18, 1997, Felix Vargas, a member of a rival drug group, shot and injured Guatauba, who vowed to kill Vargas. Elias Pagan witnessed the shooting and told Guatauba that he would pay him if he killed Vargas. On May 30, 1997, Guatauba, Ortiz, Roman, Hernandez, DeJesus, Pabon and Centeno were present at Pagan‟s home when plans were made to kill Vargas later that night. Around 10:30 p.m., Ortiz reported to Pagan that he had found Vargas, and Pagan told Ortiz to come to Pagan‟s house with his car. At the house, Pagan provided the men with guns and black ski masks to wear during the planned shooting.*fn1 Pagan distributed three weapons: AK-47 rifles for Guatauba and DeJesus, and a handgun for Hernandez. Pabon was not provided a weapon. His confession, later taken by

Philadelphia police, states that he already possessed a 9mm handgun that he used in the shooting.

After leaving Pagan‟s house, Ortiz drove his car to the intersection of Franklin and Indiana Streets, blocking the parked car in which Vargas was sitting. Guatauba allegedly was in the front passenger seat of Ortiz‟s car, while DeJesus, Pabon and Hernandez were in the back seat. Wearing their ski masks, Guatauba and two or three other men*fn2 got out of Ortiz‟s car and started shooting at Vargas. He was killed immediately and a bystander, Elizabeth Carrisquilla, was also fatally shot. Two other female bystanders, both on Franklin Street, were shot but survived their injuries.

At trial, a ballistics expert testified that there were five firearms involved in the attack: two AK-47s, two 9mm semi- automatic handguns, and one .45 caliber handgun.

Prosecutors contended that the assailants used four of those guns. The fifth gun, one of the two 9mm handguns, was used to shoot at the assailants by an unknown person who was never identified. A shot from that fifth gun injured Ortiz, who drove away with some of the other shooters, purportedly leaving Pabon and the other remaining shooter behind to flee on foot.

Back at Pagan‟s house on Birch Street, Pagan told Centeno to give two bundles of $2,500 each to Guatauba in payment for the murder. Guatauba kept one bundle and gave the other to DeJesus. A few days later, Pabon went with Pagan and Centeno and their kids, along with Hernandez and Roman, to Wildwood, New Jersey, for one week. On returning to Philadelphia, Pabon was shot in an unrelated incident. After being released from the hospital, he stayed with Pagan for a few days and then went to his home town in Puerto Rico.

Police arrested Pabon in Puerto Rico on charges related to the murders of Vargas and the bystander, Carrisquilla, and read him his Miranda rights in Spanish. After his extradition to Philadelphia, Philadelphia Police interrogated him in Spanish.*fn3 Pabon ultimately gave a confession, conducted in Spanish but translated into English by Detective Perez, in which he admitted to dealing drugs and to being one of the shooters in the attack on Vargas.

B. The Structure of Pabon's Joint Trial

The Philadelphia DA‟s Office, on behalf of the Commonwealth of Pennsylvania, prosecuted Pabon jointly with four co-defendants for the murders of Vargas and Carrisquilla. His co-defendants were: (1) Pagan, alleged to have planned and paid for the killing but not to have been one of the shooters; (2) Centeno, Pagan‟s common-law wife who the DA claimed was involved in the conspiracy to murder Vargas; (3) DeJesus, an alleged shooter; and (4) Hernandez, an alleged shooter.

Guatauba, also believed to be one of the shooters, was not apprehended by authorities at the time of trial. Ortiz, the purported driver, accepted a plea deal to avoid the death penalty and testified for the Commonwealth. Roman, a member of the drug group who was not involved in the shooting, also testified for the Commonwealth as part of a cooperation agreement regarding a different murder charge.

Judge Jane Greenspan presided over the joint jury trial. Each of the five defendants was represented by his or her own defense counsel. All of the defense attorneys moved for severance, but their motions were denied. The defense attorneys later moved for recusal of Judge Greenspan based on remarks made by her during voir dire, but those motions also were denied. Pabon used a court translator for pre-trial hearings and during the trial.

The Commonwealth‟s decision to introduce confessions given by several of the non-testifying co-defendants raised the potential for violations of the Confrontation Clause of the Sixth Amendment of the Constitution. Thus, the trial transcript reflects negotiated, line-by-line edits to these confessions, made by Judge Greenspan in discussion with prosecutors and several of the defense attorneys.

Pabon‟s court-appointed counsel in this habeas appeal points to one passage in DeJesus‟s statement as a Bruton violation. The relevant portion of his statement reads:

Question: Jose, is there anything you would like to add to your statement? Answer, Yeah. I know that I didn‟t shoot the girl who got killed. Another should be arrested for this. He paid it off.

He even gave me the Grand National for helping to do this besides the money that Guatauba paid me.

(N.T. 8/2/99: 44) (emphasis added). The statement referred to Pagan, who employed the other men and was alleged to have paid for the killings. Pagan‟s attorney objected, asking that the statement be limited to "I know that I didn‟t shoot the girl who got killed" to avoid a violation of his client‟s Sixth Amendment rights. The Commonwealth argued that the statement should not be redacted because it did not name Pagan explicitly. Ultimately, his attorney and the DA agreed to limit the statement to "I know that I didn‟t shoot the girl who got killed. Another should be arrested for this." Pabon‟s claim that this redacted statement, in the context of the trial, violated his Confrontation Clause rights is discussed in part III.B below.

C. Evidence Admitted at Trial

In addition to Pabon and DeJesus‟s confessions, several of Pabon‟s co-defendants gave statements to the police that were introduced at trial. Pagan‟s initial statement to the police implicated Guatauba, Hernandez, DeJesus and Ortiz in the murder, but did not implicate Pabon. However, Roman, who was not a co-defendant but was part of the drug group, testified at trial that Pabon was involved in the conspiracy to kill Vargas, participated in the shooting, and fled Philadelphia. Ortiz, the driver, testified that he drove Pabon to the shooting, but he did not know if all of the men fired weapons when they got out of his car. Roman and Ortiz‟s testimony both conflicted with their past statements to the police.*fn4

Eyewitnesses at the scene saw a car fitting the description of Ortiz‟s car. They saw three males get out of the car, one from the driver‟s side and two from the passenger‟s side. All three were wearing black clothes and face masks.*fn5 No eyewitness placed Pabon at the scene of the crime. Eyewitnesses testified that on returning to Birch Street after the murder, three males--identified as Ortiz, Hernandez, and Guatauba--got out of the car. Another witness testified that she saw Pagan, Centeno, Hernandez, and Guatauba celebrating after the shooting, but did not see Pabon. One witness testified about Pabon‟s involvement in drug dealing but did not link him to the shooting.

Pabon‟s confession was the Commonwealth‟s strongest evidence against him at trial. In his statement to Philadelphia police, he admitted to dealing drugs, having a 9mm handgun for protection, and participating in the shooting. It also states: "While I was shooting at [Vargas], I heard [Ortiz] holler I am shot. I look at [Ortiz]. He was holding his head. The way his car was parked, I knew the shot that hit [Ortiz] came from Franklin Street, so I started firing in that direction."

At trial, Pabon attempted to repudiate his confession. He presented testimony from a forensic document examiner that the signature on his confession was unlikely his own. Pabon also argued that there was no new information provided in his statement that the police did not already know. Additionally, he pointed out that questions commonly asked in such interviews, to which the police would not have known the answers, were not asked in Pabon‟s interrogation.*fn6 In rebuttal, however, the DA presented its own document examiner who testified that the signature on the confession was likely Pabon‟s. During deliberations, the jury ...


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