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Wilkerson v. Superintendent Fayette Sci

United States Court of Appeals, Third Circuit

September 8, 2017

VINCENT WILKERSON, Appellant
v.
SUPERINTENDENT FAYETTE SCI; ATTORNEY GENERAL PENNSYLVANIA; DISTRICT ATTORNEY PHILADELPHIA, Appellants

          Argued: March 8, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2:12-cv-02190) Honorable Paul S. Diamond, District Judge

          Max C. Kaufman [Argued] Susan E. Affronti Ronald Eisenberg George D. Mosee, Jr. Anne Palmer Philadelphia County Office of District Attorney Counsel for Superintendent Fayette SCI, Attorney General Pennsylvania, and District Attorney Philadelphia

          Maria K. Pulzetti [Argued] Brett G. Sweitzer Leigh M. Skipper Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Vincent Wilkerson

          Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, Chief District Judge [*]

          OPINION

          KRAUSE, Circuit Judge.

         Following a trial in which the evidence reflected that Appellee/Cross-Appellant Vincent Wilkerson shot his victim in the chest and beat the victim with a gun, a Pennsylvania jury convicted Wilkerson of both attempted murder and aggravated assault. In his instant petition for habeas corpus, Wilkerson contends that these convictions violate the Double Jeopardy Clause because the jury instructions permitted the jury to convict on both offenses based on the shooting alone. Wilkerson also raises a challenge under Apprendi v. New Jersey, 530 U.S. 466 (2000), to the trial judge's imposition of an enhanced sentence for attempted murder based on a finding by the judge, but not the jury, that the victim suffered serious bodily injury and a related claim that his counsel was ineffective for failing to object to this finding at sentencing or to raise the issue on direct appeal. Because Wilkerson has not demonstrated that the state court's rejection of his double jeopardy claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, " 28 U.S.C § 2254(d)(1), he cannot meet the high bar necessary to warrant habeas relief, and the District Court erred in granting his petition on that claim. Further, because Wilkerson did not timely raise his Apprendi claim or related ineffective assistance claims, he is no more entitled to relief on those grounds. Accordingly, we will affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

         I. Factual Background

         All charges against Wilkerson arose from a violent altercation outside of a night club in 1997. As reflected in the trial testimony, after Wilkerson approached a woman outside of the club and began talking to her and pulling on her clothing, a friend of hers, Nasir Hill, who was also leaving the night club, walked up to speak with her, prompting a heated verbal exchange in which Wilkerson accused Hill of being disrespectful for interrupting his conversation. Although the argument ended quickly and the two men separated, Wilkerson returned moments later, knocked Hill unconscious with a punch to the face, and then, after positioning Hill's body on the hood of a parked car, struck him in the head with a gun. With Hill still lying unconscious, Wilkerson stepped back two-to-four feet and shot Hill in the chest before fleeing the scene.

         Wilkerson was charged with multiple crimes resulting from this incident including, among other things, attempted murder and aggravated assault. At the conclusion of his trial, the judge instructed the jury as to the various counts. As part of the instructions for the charge of attempted murder, the trial judge told the jury that a conviction would require that it find Wilkerson "did a certain act" and "[i]n this case that act is alleged to be a shooting . . . of [Hill], " App. 586. With respect to the crime of aggravated assault, the trial judge instructed the jury that, in order to convict, it would have to find "that [Wilkerson] caused or attempted to cause serious bodily injury to [Hill]." App. 587. Of relevance to this appeal, the trial judge did not specify that Wilkerson's shooting Hill could not, in addition to serving as the basis for an attempted murder conviction, also serve as the "attempt[] to cause serious bodily injury" for the aggravated assault conviction, and, after deliberations, the jury returned a guilty verdict on both counts on a general verdict form that likewise did not specify whether the "serious bodily injury" finding underlying the aggravated assault conviction related to the shooting or the assault that preceded it.

         Wilkerson was sentenced to ten-to-twenty years of incarceration on the aggravated assault conviction and twenty-to-forty years on the attempted murder conviction to be served consecutively.[1] That sentence for attempted murder reflected an enhancement, allowable under Pennsylvania law only where there has been a finding of "serious bodily injury, " 18 Pa. Cons. Stat. § 1102(c)-a finding that here was made only by the judge at sentencing and had not been submitted to the jury.

         II. Procedural History

         A. Direct Appeal and Collateral Review in Pennsylvania State Court

         Wilkerson appealed to the Pennsylvania Superior Court and argued that his convictions for attempted murder and aggravated assault should have merged for sentencing purposes. In making this argument, Wilkerson relied on Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994), where the Pennsylvania Supreme Court had held that aggravated assault is a lesser included offense[2] of attempted murder, so that if the convictions on both counts are based on the same criminal act, the sentences for the two crimes "merge" as a matter of state law. Id. at 24. Thus, Wilkerson asserted, because the bills of information under which he was charged and the jury instructions given at his trial reflected that he was convicted of both attempted murder and aggravated assault on the basis of a single violent episode, his sentences for the two crimes should have merged.

         The Superior Court rejected that argument, holding that Anderson only applies "in those instances where multiple punishments arise from a single act, " and that Wilkerson's convictions stemmed from two separate acts: (1) shooting Hill in the chest (the attempted murder), and (2) striking Hill with a gun (the aggravated assault). App. 717-18. According to the Superior Court, Wilkerson's challenge therefore was "more properly characterized as a challenge to the sufficiency of the evidence underlying the convictions." App. 718. As it concluded there was sufficient evidence to support the finding that Wilkerson was guilty of both criminal acts, the Superior Court affirmed Wilkerson's convictions and sentence.

          Wilkerson then filed a petition pursuant to Pennsylvania's Post-Conviction Relief Act (PCRA), raising a different claim not relevant to this appeal. The PCRA court dismissed Wilkerson's petition, and the Pennsylvania Superior Court affirmed.

         B. Federal Habeas Proceedings

         Having been denied relief in state court, Wilkerson filed a petition for federal habeas relief pursuant to 28 U.S.C § 2254 in the United States District Court for the Eastern District of Pennsylvania. In that petition, Wilkerson claimed, among other things, that his convictions for both attempted murder and aggravated assault on the basis of the same conduct violated the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment. A little over a year after filing his original petition, Wilkerson filed an "Amended Petition in Support of Memorandum of Law, " in which he asserted for the first time that the application of the enhancement to his attempted murder sentence, reflecting the trial judge's finding of serious bodily injury, violated Apprendi because "the element of serious bodily injury was not made part of the jury instruction with respect to the charge of attempted murder." Supp. App. 38.

         Wilkerson's habeas petition was referred to a Magistrate Judge who recommended that the District Court grant relief with respect to Wilkerson's double jeopardy claim and deny his petition with respect to all other claims. When addressing Wilkerson's Apprendi challenge, the Magistrate Judge agreed with Wilkerson that an error occurred when he was sentenced above the twenty-year statutory maximum without the requisite factual finding by the jury but held that this error was harmless and did not warrant habeas relief because it was "inconceivable that a properly-instructed jury would not find that Wilkerson created a substantial risk of Hill's death." App. 77. While the Commonwealth filed an objection to the Magistrate Judge's double jeopardy recommendation, Wilkerson did not object on any ground.

         The District Court adopted the Magistrate Judge's recommendations in full. With respect to Wilkerson's double jeopardy claim, the District Court held that the state court's decision to apply a sufficiency of the evidence analysis to Wilkerson's merger claim on direct appeal was an unreasonable application of clearly established federal law. Reasoning that the proper question for courts to consider when faced with a challenge to a trial court's jury instructions is "whether there is reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution, " App. 12 (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)), the District Court determined the instructions here were framed in a way that allowed the jury to conclude that the shooting could form the basis of both the attempted murder and aggravated assault convictions. Thus, the District Court held "there is a 'reasonable likelihood' that the jury applied the trial court's attempted murder and aggravated assault instructions in an impermissible manner, and thus convicted [Wilkerson] of two crimes for a single act" in violation of the Double Jeopardy Clause. App. 14.

         As for Wilkerson's Apprendi claim, the District Court observed that "neither party ha[d] objected" to the Magistrate Judge's analysis beyond the double jeopardy claim, including the Magistrate Judge's rejection of the sentencing challenge, and it proceeded to adopt the Report and Recommendation in full-granting Wilkerson relief on his double jeopardy claim and denying relief on his Apprendi claim. This appeal and cross-appeal followed.

         III. Jurisdiction and Standard of Review

         The District Court had jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. § 2253. Where, as here, the District Court based its rulings on the evidence contained in the state court record and did not conduct an evidentiary hearing or engage in any independent fact-finding, our review of the District Court's decision is plenary. McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993).

         Our review of the state court's judgment is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which imposes significant procedural and substantive limitations on the scope of our review. Two such limitations have particular bearing on this appeal. First, a petitioner must "ha[ve] exhausted the remedies available in the courts of the State, " 28 U.S.C. § 2254(b)(1)(A), before seeking federal habeas relief, and a claim will be deemed unexhausted if the petitioner "has the right under the law of the State to raise, by any available procedure, the question presented, " but has failed to do so, id. § 2254(c). This exhaustion requirement does not require a habeas petitioner to cite the federal Constitution "book and verse, " but rather to have "fairly presented" his federal claim to the state courts. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (quoting Picard v. Connor, 404 U.S. 270, 277-78 (1971)). That is, the petitioner must have "present[ed] a federal claim's factual and legal substance to the state courts in a manner that put[] [the state courts] on notice that a federal claim [was] being asserted." Id. If a petitioner's federal claim was not "fairly presented, " and further state-court review is no longer available under state law, the claim is "procedurally defaulted . . . and . . . may be entertained in a federal habeas petition only if there is a basis for excusing the procedural default." Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001).

         Second, where a state court has rejected a petitioner's claim on the merits, AEDPA limits the scope of our substantive review to whether the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Pazden v. Maurer, 424 F.3d 303, 311 (3d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). A decision involves an "unreasonable application" of federal law if "no 'fairminded jurist' could agree with the state court's decision." Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848 (3d Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)) (alteration omitted). If this threshold seems "difficult to meet, " the Supreme Court has advised that is because "it was meant to be." Harrington, 562 U.S. at 102. Thus, we may not grant relief "simply because we disagree with the state court's decision or because we would have reached a different result if left to our own devices, " Werts v. ...


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