Slutzker v. Johnson

Citation: Not availableDocket: 03-4046

Court: Court of Appeals for the Third Circuit; December 28, 2004; Federal Appellate Court

Original Court Document: View Document

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The United States Court of Appeals for the Third Circuit reviewed the appeal of the Commonwealth of Pennsylvania regarding the District Court's granting of habeas corpus relief to Steven G. Slutzker, who had been convicted in a murder case dating back to 1975. The case against Slutzker was initially weak, but was revived fifteen years later when John Mudd Jr. claimed to have recovered memories implicating Slutzker in his father's murder. Slutzker was subsequently convicted and sentenced to life in prison.

Slutzker's habeas corpus petition cited several constitutional violations during his trial. The District Court identified a Brady violation, where evidence favorable to the defendant was withheld, and found that Slutzker had also shown cause and prejudice for a procedural default. The court denied relief on a third issue regarding the trial court's refusal to compel testimony from Mudd's wife. The Appeals Court affirmed the District Court's findings on the Brady violation and the denial related to Mudd's wife's testimony, but chose not to address the ineffective assistance of counsel claim since the Brady violation warranted the granting of the writ. The court modified the District Court's order to clarify that Slutzker should be released unless the Commonwealth opts for a retrial.

On December 28, 1975, John Mudd Sr. was shot six times in his Wilkinsburg, Pennsylvania home by an intruder while checking a fuse during a power outage. His wife, Arlene, and their five-year-old son, John Jr., were upstairs. Neighbor Steven Slutzker emerged as the prime suspect due to his affair with Arlene and evidence indicating he had premeditated the murder, including purchasing a .32 caliber handgun and soliciting a co-worker, Michael Pezzano, to kill Mudd. Pezzano reported the solicitation to police, but no immediate action was taken. Slutzker claimed that Arlene pressured him to commit the murder due to alleged abuse and stated he ended their relationship and conspiracy days before the murder. 

After the murder, Slutzker provided an alibi, claiming he was at the home of friends, the O’Deas, who testified that he was heavily intoxicated and could not have committed the murder. Despite this, Slutzker was arrested for homicide and solicitation, while Arlene faced solicitation charges and Janet O'Dea was charged with conspiracy for allegedly disposing of the murder weapon, which was never found. All homicide charges were dismissed at the coroner’s inquest due to Arlene's testimony that Slutzker was not present during the murder. O'Dea was acquitted of conspiracy after refusing a plea deal to testify against Slutzker. He was convicted of solicitation based on Pezzano's testimony and served about a year in prison.

In November 1990, fifteen years post-murder, John Jr. contacted police, claiming he recovered repressed memories of witnessing the murder and seeing Slutzker flee. These statements led to new murder charges against Slutzker and Arlene, although the latter's charges were subsequently dropped.

Eyewitnesses at Slutzker's trial included John Mudd Jr., Cynthia DeMann, and Timothy Brendlinger, all of whom testified to seeing Slutzker with Arlene Mudd shortly after the murder. Amy Slutzker, his six-year-old estranged daughter, testified that she saw her father take a gun and leave the house shortly before police arrived, and indicated fear of him led her to withhold her testimony initially. Slutzker’s attorney, Charles Scarlata, did not call the O’Deas to support Slutzker’s alibi and attempted to call Arlene Mudd, who invoked the Fifth Amendment, leading the court to refuse to compel her testimony. In January 1992, Slutzker was convicted of murder and sentenced to life in prison.

Post-conviction, Slutzker appealed on multiple grounds, including the competency of recovered-memory testimony and the trial court's refusal to compel Arlene Mudd’s testimony. The Pennsylvania Superior Court affirmed the conviction in October 1993, and the Supreme Court denied further review in April 1994. In January 1996, Slutzker filed a petition under the Pennsylvania Post Conviction Relief Act, alleging ineffective assistance of counsel, which was dismissed by the PCRA court and affirmed by the Superior Court, with the Supreme Court denying review in November 1999.

On December 1, 1999, Slutzker filed a pro se Petition for Writ of Habeas Corpus in federal court. In 2001, he received twenty-one previously undisclosed police reports from the Wilkinsburg police department, which he believed could impact his case. After reassigning the case to Magistrate Judge Susan Paradise Baxter in September 2002, Slutzker, now represented by counsel, filed an Amended Petition in January 2003. Magistrate Judge Baxter recommended granting the petition on two grounds: the failure to disclose police reports per Brady v. Maryland and ineffective assistance for not calling the O’Deas as witnesses, while denying relief on the issue of Arlene Mudd’s testimony but granting a certificate of appealability. The District Court adopted her report on September 25, 2003. The Commonwealth appealed, and Slutzker cross-appealed regarding Arlene Mudd’s refusal to testify. The review of the District Court’s legal conclusions is plenary, as is the review of its factual findings due to reliance on the state court record without conducting an evidentiary hearing.

The Commonwealth contends that the District Court incorrectly granted habeas relief on Slutzker’s Brady claim, asserting that the claim was procedurally defaulted, that the relevant police reports were disclosed to the defense prior to trial, and that any potential Brady violation did not affect the trial's outcome. 

The Brady evidence in question includes twenty-one police reports from the Wilkinsburg Police, documenting interviews conducted between December 1975 and February 1976, with a significant report detailing a January 15, 1976, interview with neighbor Cynthia DeMann. In earlier interviews on December 29 and 30, she stated she could not identify a man seen with victim Arlene Mudd shortly after the murder. However, during the January interview, she unequivocally stated that the man was not Slutzker, providing distinguishing characteristics that differentiate him from the unidentified man.

Regarding procedural issues, the Commonwealth argues that Slutzker's claim is barred under Pennsylvania's Post Conviction Relief Act (PCRA) time limits. Slutzker claims to have received the undisclosed police reports on September 11, 2001, but his conviction became final on May 17, 1994. He filed a PCRA petition in January 1996, which did not include the newly discovered Brady documents. After exhausting his PCRA appeals by November 1999, he filed a federal habeas corpus petition in December 1999 without seeking to file a second PCRA petition based on the new evidence. The Commonwealth argues that his failure to do so constitutes procedural default, as the Pennsylvania courts were not given the chance to address his claim.

The analysis begins with the requirement for exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A), and it is acknowledged that Slutzker did not exhaust his Brady claim since he discovered the evidence after his PCRA appeals concluded. As a result, he did not return to state court for a second PCRA petition, denying the state courts the chance to rule on the claim. According to the doctrines established in Fay v. Noia and Rose v. Lundy, federal courts must dismiss habeas petitions containing unexhausted claims without prejudice, although this exhaustion requirement does not apply if the state courts would dismiss the claims as procedurally barred.

A petition that includes unexhausted but procedurally barred claims alongside exhausted claims is not classified as a mixed petition requiring dismissal under the Rose standard. Exhaustion is not mandated when pursuing state remedies would be futile; however, the mere existence of a procedural rule that appears to bar relief does not exempt a claim from the exhaustion requirement. The exhaustion requirement aims to allow state courts to fully address a petitioner’s claims, so if it's likely that state courts would consider the merits of an unexhausted claim, federal courts should dismiss the petition to allow state relief efforts. In this case, Pennsylvania courts are unlikely to consider Slutzker’s Brady claim due to the strict 60-day filing limit imposed by the Pennsylvania Post Conviction Relief Act (PCRA), which is mandatory and jurisdictional, allowing no equitable exceptions beyond those explicitly stated in the Act. Slutzker's reasons for failing to file within the time frame are irrelevant, as the filing period cannot be extended through equitable tolling but only through statutory exceptions, none of which apply here since his petition invoking such exceptions was not filed within the required timeframe. Consequently, his failure to exhaust the Brady claim is excused under 28 U.S.C. 2254(b)(1)(B).

However, this excuse does not protect Slutzker from the procedural default doctrine, which prevents federal habeas review when a state court declines to address federal claims due to procedural noncompliance. Slutzker has indeed defaulted on his Brady claims under state law. Therefore, the Court may only consider the merits of these claims if Slutzker demonstrates "cause and prejudice" or a fundamental miscarriage of justice. He claims he has shown cause and prejudice, defined as an external factor that hindered compliance with state procedural rules. The unique procedural situation of Slutzker’s case, where he discovered new evidence after exhausting his PCRA appeals and while a habeas petition was pending, is viewed as such an external factor. If he had amended his habeas petition to include the Brady claim and filed a second PCRA petition simultaneously, his original habeas petition would have been dismissed for failure to exhaust.

Slutzker's potential re-filing of his case would have been time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposes a one-year limitations period for habeas corpus review of state convictions. This period begins when the conviction is final or when the factual basis for the claim is discovered, with tolling during properly filed state collateral review applications. The limitations period for Slutzker’s Brady claim commenced on September 11, 2001, upon receipt of police reports, while the timeline for his other claims began on April 24, 1996, the effective date of AEDPA, but was tolled during his first PCRA petition from January 1996 to November 1999. Notably, the statute was not tolled during his habeas petition from December 1999 until the discovery of the Brady documents in September 2001, per the ruling in Duncan v. Walker, which stated that a previously dismissed habeas petition does not toll the AEDPA limitations for a subsequent petition. 

The Commonwealth argued that Slutzker could have amended his federal petition to include the Brady claim and requested a stay until state review was completed, referencing Merritt v. Blaine. However, it was deemed unlikely that Slutzker would have successfully obtained such a stay, particularly given the uncertainty surrounding its approval at that time. Merritt, which was decided 19 months after Slutzker received the police reports, only noted in a footnote the possibility of staying federal habeas actions pending state remedy exhaustion without firmly establishing it as a procedure. It wasn't until Crews v. Horn that the court explicitly endorsed staying a habeas petition to avoid barring timely claims. Prior to Crews and Merritt, there was no clear precedent from the Supreme Court or the Third Circuit supporting this stay-and-abey procedure, and some circuits, like the Eighth Circuit, had ruled against a district court's power to stay habeas cases awaiting state court outcomes for unexhausted claims. Thus, any request for a stay would have carried substantial risks of being overturned on appeal.

A stay in Slutzker's case, if granted and later overturned, would result in the dismissal of his claims due to non-exhaustion under *Rose v. Lundy*, and his habeas claims would become time-barred. Slutzker faced several unattractive options after receiving the Brady materials: filing a second PCRA petition, risking dismissal of his pending habeas petition; requesting a stay without precedent; pursuing parallel claims in state and federal courts, which could prevent federal review of the Brady issue; or continuing in federal court, leading to procedural default under PCRA time limits. He ultimately chose the last option, which constituted an external cause for his procedural default due to the difficult choices imposed on him.

The Commonwealth's failure to timely disclose the Brady materials contributed to Slutzker's predicament, as it occurred after his federal habeas petition had been pending for two years, complicating compliance with state and federal law. The unsettled nature of case law further hindered his ability to pursue his claims. Although the legal basis for a Brady claim was available, the procedural context made relief unattainable. The Commonwealth's delay and the legal complexities present an "objective impediment" to filing a second PCRA petition.

Regarding prejudice from the procedural default, the analysis aligns with the materiality standard under Brady as established in *Strickler v. Greene*.

The conclusion reached is independent of Slutzker’s pro se status; even experienced counsel would find no appealable alternative to the procedural default. This case differs from Caswell v. Ryan, where a pro se petitioner’s failure to file a timely petition was deemed a procedural default due to negligence. In contrast, Slutzker defaulted while having a pending federal habeas petition, which could have been compromised by a new state petition. If the withheld evidence was material to his trial, procedural default could lead to prejudice. The merits of the Brady claim are addressed, highlighting that suppression of favorable evidence by the prosecution violates due process if the evidence is material to guilt or punishment. The Commonwealth contests both the existence of suppressed evidence and its materiality. Due to Slutzker’s failure to raise this claim in Pennsylvania courts, there is no state court ruling to which deference is owed under AEDPA, necessitating a de novo review. The Commonwealth argues there’s no proof that the twenty-one police reports were withheld during the original trial, as the prosecuting attorney stated all documents in her possession were provided. However, Slutzker presents substantial evidence indicating these documents were not disclosed prior to trial. His trial attorney’s lack of impeachment of a crucial witness, who later provided evidence contradicting the prosecution’s case, suggests that critical reports were indeed missing from the attorney's files at the time of trial.

The Commonwealth's assertion that the disputed police reports were disclosed to the defense prior to trial lacks convincing support. The only evidence offered is a general statement from the prosecutor about her practice of sharing evidence, which is contradicted by both testimonial and circumstantial evidence indicating that the defense did not access the reports. It is established that Slutzker did not have access to the police reports before trial, satisfying the first prong of the Brady test.

Regarding materiality, to succeed under Brady, a defendant must demonstrate that the prosecution suppressed evidence, that the evidence favored the defense, and that it was material to trial issues. The prosecution typically holds the burden of proof concerning its evidence. Although the burden of proof on nondisclosure is unclear, Slutzker has convincingly shown that the reports were withheld, and the Commonwealth has not provided compelling evidence to refute this.

The Supreme Court's standard for materiality requires a "reasonable probability" that the outcome could have differed had the evidence been disclosed, focusing on whether the defendant received a fair trial. Evidence that can impeach prosecution witnesses may be considered material. The District Court identified two undisclosed reports as material, notably the January 15, 1976, interview with Cynthia DeMann, who stated the man she observed with Arlene Mudd was shorter than Slutzker, contradicting her later trial testimony that it was Slutzker. This earlier statement serves as significant impeachment evidence, creating doubt about the trial verdict's reliability, especially since DeMann was the most credible eyewitness against Slutzker.

John Mudd Jr. and Amy Slutzker, both children at the time of the murder, provided questionable testimony based on "recovered memories," which raised concerns about their credibility, especially given their potential biases against the defendant, Slutzker. Officer Timothy Brendlinger, whose identification of Slutzker was disputed, was impeached by his partner, Officer Mangano, and his own police report, which did not mention seeing Arlene Mudd outside her house on the murder night. The only truly disinterested eyewitness, Cynthia DeMann, was not allowed to be impeached with prior statements, negatively affecting the fairness of Slutzker’s trial. Although the Commonwealth had substantial evidence against Slutzker, it was not overwhelming, and alternative explanations for the murder existed, including the possibility that Arlene Mudd or someone else was responsible. The District Court highlighted the importance of the police report from Cynthia DeMann's interview, deeming it material evidence and a breach of due process by the Commonwealth for not disclosing it. This finding also influenced the procedural default analysis, indicating that Slutzker's case was prejudiced by this failure. Furthermore, the trial court's refusal to compel Arlene Mudd Stewart to testify, who previously stated that Slutzker was not present during the murder, is also reviewed. The statements from neighbors Dennis and Susan Ward were deemed not materially relevant to the defense, as their testimonies indicated belief in Slutzker's involvement rather than exoneration.

Arlene Mudd invoked her Fifth Amendment rights and refused to testify at Slutzker's 1991-1992 trial, a decision upheld by the Pennsylvania trial court, which declined to compel her testimony. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas relief can only be granted if the state court's decision was contrary to or involved an unreasonable application of established federal law as determined by the Supreme Court. The state court's factual findings are presumed correct unless clearly rebutted by evidence.

Mudd had a valid Fifth Amendment right to refuse to testify since she was a suspect in the murder and had been charged as a co-defendant. Slutzker contended that Mudd waived this privilege by testifying at a coroner's inquest in January 1976. However, legal precedent indicates that a witness may not invoke the privilege against self-incrimination if they have previously testified voluntarily on the same subject in a single proceeding, though they may assert it in subsequent proceedings. The trial court's decision to decline to compel Mudd's testimony was affirmed, noting a lack of Supreme Court precedent directly addressing whether a waiver in one proceeding affects future proceedings.

The absence of such precedent led to the conclusion that the trial court could not have acted contrary to or unreasonably applied any established law, thus denying the grounds for habeas relief. The Supreme Court's acknowledgment in United States v. Salerno of the general principle that a witness may invoke the Fifth Amendment privilege after testifying before a grand jury further supports this conclusion.

The District Court determined that Arlene Mudd’s prior testimony at a coroner’s inquest did not constitute a waiver of her Fifth Amendment right against self-incrimination in a subsequent criminal prosecution, aligning with established Circuit precedent that allows for asserting the privilege in separate proceedings. As a result, the court declined to grant habeas relief based on this issue. Regarding the ineffective assistance of counsel claim, the court found that Charles Scarlata, Slutzker’s trial lawyer, failed to call or interview potential alibi witnesses, Janet and Patrick O’DeA, which Slutzker contended could have significantly impacted his trial outcome. The Commonwealth argued that Scarlata's decision was a tactical judgment, as the O’DeAs could have been impeached concerning their involvement in the case. However, the court chose not to address this ineffective assistance claim since it was affirming habeas corpus relief due to the prosecution’s failure to disclose critical police reports that denied Slutzker due process. The court also affirmed the denial of habeas relief related to the trial court’s refusal to compel Mudd to testify. It modified the District Court’s order, which lacked specificity, to mandate that the Commonwealth must release Slutzker unless retried within 120 days, noting that conditional release is the standard remedy in federal habeas corpus cases.