Steven G. Slutzker in No. 03-4219 v. Philip Johnson Gerald J. Pappert Stephen A. Zappala, Jr., District Attorney, Allegheny County, Pa, in No. 03-4046

Citations: 393 F.3d 373; 2004 WL 2997887Docket: 03-4046

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

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The Commonwealth of Pennsylvania appealed a District Court order granting habeas corpus relief to Steven G. Slutzker, who had been convicted nearly thirty years prior for the 1975 murder of John Mudd Sr. Slutzker, who had an affair with Mudd's wife and attempted to hire a hitman to kill Mudd, was initially not charged due to insufficient evidence. Fifteen years later, Mudd's son, John Jr., claimed to have repressed memories of the murder implicating Slutzker, leading to his arrest and conviction.

Slutzker filed a habeas corpus petition citing multiple constitutional errors at trial, which the District Court partially granted based on a Brady violation (failure to disclose evidence favorable to the defendant) and ineffective assistance of counsel. The court also considered a refusal to compel testimony from Mudd's wife, which Slutzker cross-appealed.

The appellate court upheld the District Court’s finding of a Brady violation, acknowledging Slutzker's cause and prejudice to excuse a procedural default. It affirmed the denial of relief regarding Mudd's wife's testimony but focused on the Brady violation as the basis for granting habeas relief. The court indicated that the District Court's intent was to release Slutzker unless the Commonwealth chose to retry him, modifying the order accordingly. Background details revealed that Mudd was murdered while checking a fuse, with Slutzker emerging as a suspect due to his prior actions and motives.

Police investigated a murder and located Slutzker at the home of friends, Patrick and Janet O'Dea, where he was staying with his daughter, Amy. The O'Deas reported that Slutzker had been drinking heavily and passed out by 8 p.m. They claimed he was still asleep at 1 a.m. when they moved him to the couch, asserting he could not have left the house to commit the murder in that timeframe. Slutzker's car remained at the O'Deas' residence that night. Despite this alibi, Slutzker was arrested for criminal homicide and solicitation, while Arlene Mudd 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 a coroner's inquest where Mudd testified that Slutzker was not present during the murder. O'Dea refused a plea deal to testify against Slutzker and was acquitted at trial.

Slutzker was convicted of solicitation based largely on Pezzano's testimony and served about a year in prison. After living quietly for fifteen years, John Mudd Jr., the victim's son, reported in 1990 that he had recovered repressed memories of the murder, claiming to have seen Slutzker fleeing the scene. Based on these statements, the Commonwealth charged Slutzker and initially Arlene Mudd with murder; charges against Mudd were later dropped. Eyewitnesses at Slutzker's trial included John Mudd Jr., neighbor Cynthia DeMann, policeman Timothy Brendlinger, and Slutzker's estranged daughter, Amy, who testified she saw her father take a gun before police arrived. 

Slutzker's trial attorney did not call the O'Deas as witnesses and could not compel Arlene Mudd to testify due to her Fifth Amendment rights. In January 1992, Slutzker was convicted of murder and sentenced to life in prison. He appealed the conviction, questioning the recovered-memory testimony and the refusal to compel Mudd's testimony, but the Pennsylvania Superior Court upheld the conviction in October 1993, and the Pennsylvania Supreme Court denied further review in April 1994.

In January 1996, Slutzker submitted a petition under the Pennsylvania Post Conviction Relief Act (PCRA), citing sixteen instances of ineffective assistance of trial counsel. The PCRA court held evidentiary hearings, including testimony from Scarlata, but ultimately dismissed the petition. This dismissal was affirmed by the Superior Court, and the Pennsylvania Supreme Court denied further review in November 1999. Subsequently, on December 1, 1999, Slutzker filed a pro se Petition for Writ of Habeas Corpus in the Western District of Pennsylvania, assigned to Magistrate Judge Kenneth J. Benson. In 2001, while still pro se, Slutzker issued a subpoena to the Wilkinsburg police department, leading to the receipt of twenty-one previously undisclosed police reports on September 11, 2001. He informed Magistrate Judge Benson about the new evidence's potential impact, but received no response.

On September 12, 2002, the case was reassigned to Magistrate Judge Susan Paradise Baxter. On January 10, 2003, now represented by counsel, Slutzker filed an Amended Petition for Habeas Corpus. While Magistrate Judge Baxter rejected most claims, she recommended granting the petition and a certificate of appealability on two grounds: a Brady claim concerning the undisclosed police reports and ineffective assistance of counsel due to Scarlata's failure to interview or call alibi witnesses, the O'Deas. She denied relief on a third issue regarding Arlene Mudd's testimony but recommended a certificate of appealability on that matter. The District Court adopted the Magistrate's recommendations on September 25, 2003. The Commonwealth appealed, and Slutzker cross-appealed regarding Mudd's testimony.

The District Court's legal conclusions are subject to plenary review. In this case, factual findings are also under plenary review since the District Court relied solely on the state court record without conducting an evidentiary hearing. The Commonwealth contends that the District Court erred in granting relief on Slutzker's Brady claim, arguing it was procedurally defaulted, that the police reports were disclosed before trial, and that any undisclosed evidence did not prejudice the trial outcome. The disputed police reports consist of twenty-one documents from interviews conducted by the Wilkinsburg Police between December 1975 and February 1976. A key report details a January 15, 1976, interview with Cynthia DeMann, who in earlier interviews was unable to identify a man seen talking to Mudd shortly after the murder but later stated that the man was not Slutzker.

Mrs. DeMann indicated that she would likely have recognized Steve Slutzker if he were standing in front of her house, noting that he is tall (approximately 6 feet) while the individual present was not as tall, only slightly taller than another person beside her, Arlene Mudd. These observations were not included in prior interviews with Mrs. DeMann. 

Regarding procedural issues related to Slutzker's claim, the Commonwealth argues that it is procedurally defaulted based on Pennsylvania's Post Conviction Relief Act (PCRA) time limits. Slutzker received previously undisclosed police reports on September 11, 2001, but his conviction became final on May 17, 1994, when the Pennsylvania Supreme Court denied his reconsideration motion. Under PCRA, challenges must be filed within one year of the final judgment, unless new facts are discovered, which must be acted upon within sixty days of discovery. Slutzker did not reference the newly discovered Brady documents in his January 1996 PCRA petition, which was denied in September 1997, and his appeals concluded in November 1999. He filed a federal habeas corpus petition in December 1999 but did not seek to stay it to file a second PCRA petition based on the new evidence.

The Commonwealth contends that Slutzker’s failure to file a second PCRA petition led to a procedural default on the Brady issue, preventing state courts from addressing it. The analysis begins with the requirement that prisoners exhaust state court claims before federal relief can be sought, as set forth in 28 U.S.C. 2254(b)(1)(A). Slutzker has not exhausted his Brady claim because he discovered the evidence after his PCRA appeals had concluded and did not return to state court. Under established legal precedents, federal courts must dismiss habeas petitions containing unexhausted claims without prejudice.

However, the exhaustion requirement may be excused if state courts would not consider unexhausted claims due to procedural bars. In such cases, the doctrine of procedural default may apply to deny relief.

A state procedural rule alone does not exempt a petitioner from the exhaustion requirement; this requirement aims to give state courts an opportunity to address claims. Federal courts should dismiss petitions to allow state court review unless state law clearly precludes consideration of unexhausted claims. In Slutzker's case, Pennsylvania courts would not consider his Brady claim due to the mandatory 60-day filing limit under 42 Pa. Cons. Stat. 9545(b), which is jurisdictional and does not allow for equitable exceptions. Slutzker's argument for timely filing is irrelevant, as the filing period cannot be extended except as specified by the statute. Consequently, he cannot bring his claim in Pennsylvania courts, excusing his failure to exhaust under 28 U.S.C. 2254(b)(1)(B). However, this does not protect him from procedural default, which bars federal habeas claims when state courts decline to address them due to procedural failures. Slutzker has defaulted on his Brady claims, and federal review is only possible if he shows "cause and prejudice" or a fundamental miscarriage of justice. To establish "cause," an objective external factor must be demonstrated. The unusual procedural posture of Slutzker's petition is deemed such a factor.

The Statute of Limitations details the implications of the exhaustion of state remedies for Slutzker's legal claims. After receiving undisclosed police reports, Slutzker had already exhausted his Post Conviction Relief Act (PCRA) appeals and had a habeas corpus petition pending. If he had amended his habeas petition to include a Brady claim while simultaneously filing a second PCRA petition, his habeas petition would have been dismissed for failure to exhaust. Although such a dismissal would be without prejudice, it would prevent timely re-filing due to the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which begins from when the conviction becomes final or when the factual basis of the claim is discovered. For Slutzker, the limitations period for his Brady claim started on September 11, 2001, and for other claims on the effective date of AEDPA, April 24, 1996, though it was tolled during his first PCRA petition. However, it was not tolled during his habeas petition from December 1999 until he discovered the Brady documents. The precedent set by Duncan v. Walker clarifies that a prior habeas petition dismissed for failure to exhaust does not toll the AEDPA statute of limitations. At the time of discovering the Brady documents, Slutzker's habeas petition had been pending for nearly two years, and any subsequent dismissal could have barred his claims permanently under AEDPA.

The Commonwealth argued that Slutzker could have amended his federal petition to assert the Brady claim and requested a stay of the federal habeas petition until state review was completed. However, this argument was deemed unconvincing, as there were doubts about the likelihood of receiving such a stay in 2001, and Merritt v. Blaine, cited by the Commonwealth, did not definitively support the appropriateness of a stay-and-abey procedure at that time.

Staying a habeas petition pending exhaustion of state remedies is permissible and effective to avoid barring a petitioner from federal court, as established in Crews v. Horn, where it was noted that district courts should retain jurisdiction over meritorious claims while awaiting state resolution. This aligns with Justice Stevens's concurrence in Duncan v. Walker, which emphasized the lack of reason to dismiss mixed habeas petitions instead of staying them. Many Circuit Courts have affirmed this approach, especially to prevent untimeliness due to dismissal. However, prior to Crews and Merritt, there was no clear precedent within the Supreme Court or the Third Circuit supporting this procedure, and some Circuits, like the Eighth, have opposed it. The risks involved for Slutzker, who was pro se, included potential dismissal of claims under Rose v. Lundy if a stay was overturned, leading to untimeliness of his non-Brady claims. Additionally, while Slutzker could have pursued a separate PCRA petition alongside his unamended habeas petition, previous rulings allowed for this only when federal claims were fully exhausted, making his situation more precarious due to the federal nature of his unexhausted claim.

Slutzker faced significant challenges when considering how to address his Brady claim after receiving related materials. If he had pursued this claim in state court while also litigating other habeas claims in federal court, a denial of his Brady claim would render any subsequent federal habeas application a "second or successive" petition under 28 U.S.C. § 2244(b). This would require him to seek permission from the court and demonstrate a stringent standard to prove that constitutional error affected his conviction. The likelihood of meeting this requirement was doubtful.

Thus, even with the option to exhaust his Brady claim in state court, Slutzker would effectively lose his opportunity for federal review due to the heightened barriers under § 2244(b). He ultimately had four unattractive choices: file a second PCRA petition resulting in the dismissal of his pending habeas petition; request a stay in the habeas proceeding with the risk of untimeliness; attempt to pursue both claims simultaneously with no guarantee of federal review; or proceed solely in federal court, risking procedural default due to PCRA time limits. He chose the last option.

The court found that Slutzker's difficult decision among these four options constituted sufficient external cause for his procedural default. This dilemma stemmed from the Commonwealth's failure to disclose the Brady material promptly, which hindered his ability to comply with state and federal laws regarding claim exhaustion. Additionally, the unsettled nature of the relevant case law contributed to the unavailability of a viable legal basis for his claim, despite the longstanding recognition of the Brady doctrine.

The Commonwealth's failure to timely disclose police reports has led to a finding that Slutzker established cause for his procedural default regarding a Brady claim. Due to the legal landscape in September 2001, Slutzker faced an "objective impediment" that hindered him from filing a second Post Conviction Relief Act (PCRA) petition, making dismissal of his current habeas corpus petition problematic for re-filing. The evaluation of prejudice from Slutzker's default aligns with the materiality analysis under Brady, which states that the suppression of favorable evidence violates due process if it is material to guilt or punishment.

The Commonwealth disputes both the suppression of evidence and its materiality, asserting that there is no proof the twenty-one police reports were withheld during Slutzker's original trial. However, Slutzker presents substantial evidence suggesting the reports were not turned over. His PCRA attorney, Chris Eyster, noted that the reports were absent from the file of Slutzker's deceased trial attorney, Charles Scarlata. Additionally, a key witness, Cynthia DeMann, did not identify Slutzker in a third interview documented in one of the disputed reports, an omission that Scarlata failed to address during the trial, indicating he likely did not possess the report at that time.

Ultimately, the evidence supports that Slutzker did not have access to these police reports prior to his trial, affirming the first prong of the Brady test regarding the suppression of evidence.

The standard for materiality under Brady v. Maryland requires determining whether suppressed evidence would have created a "reasonable probability" of a different trial outcome, emphasizing the importance of a fair trial. The District Court identified two undisclosed police reports as material, particularly the January 15, 1976, interview with Cynthia DeMann. In this interview, DeMann stated the man she saw with Arlene Mudd after the murder was shorter than Slutzker, contradicting her later trial testimony that identified Slutzker as that man. This discrepancy is considered significant impeachment evidence, as it directly undermines DeMann’s trial credibility, making the trial's fairness questionable.

DeMann was viewed as the only credible eyewitness, while other witnesses, including children with questionable memories and an officer whose credibility was challenged, were less reliable. The denial of the opportunity to use DeMann’s earlier statement to impeach her at trial materially affected Slutzker’s defense. Despite the Commonwealth's substantial evidence against him, the case was not overwhelmingly convincing, and the circumstantial evidence allowed for alternative explanations. The conclusion asserts that the undisclosed report was indeed material, and its omission represented a violation of Slutzker's due process rights.

The conclusion reached indicates that the materiality of the report impacts the procedural default analysis, leading to a finding of prejudice from Slutzker's procedural default. Regarding the Fifth Amendment claim, the trial court's refusal to compel Arlene Mudd to testify is evaluated. Mudd had previously testified at a coroner's inquest in 1976, stating that Slutzker was not present at her home during the murder, but declined to testify during Slutzker's 1991-1992 trial, citing her Fifth Amendment rights. The Pennsylvania trial court's decision to deny the request to compel her testimony is subject to the standards set by the Antiterrorism and Effective Death Penalty Act (AEDPA), which requires a state court's decision to be contrary to or an unreasonable application of clearly established federal law for habeas relief to be granted.

Mudd's Fifth Amendment right to refuse testimony is acknowledged, particularly since she was a suspect in the murder. Slutzker contends that Mudd waived her privilege by testifying at the coroner's inquest, but this argument is rejected. Legal precedent establishes that a witness is not barred from asserting the privilege in subsequent proceedings after having previously testified on the same matter. The trial court's decision not to compel Mudd's testimony is deemed correct, as the absence of a Supreme Court ruling on the waiver of Fifth Amendment privilege across different proceedings prevents the court's decision from being classified as contrary to established law under AEDPA. The District Court noted a lack of direct Supreme Court precedent on this issue, which further supports the denial of habeas relief.

A witness can invoke the Fifth Amendment privilege against self-incrimination even if they testified before a grand jury. In United States v. Fortin, the court clarified that previous testimony does not waive the right to assert this privilege in a subsequent trial. The case involved a determination that Arlene Mudd's testimony at a coroner's inquest did not preclude her from claiming the privilege in a later criminal prosecution. 

Additionally, the District Court granted habeas relief based on ineffective assistance of counsel, identifying that trial lawyer Charles Scarlata failed to call or interview potential alibi witnesses, Janet and Patrick O'Dea, whose testimony could have significantly impacted the trial outcome. The Commonwealth defended Scarlata's decisions as tactical, arguing that the O'Deas could have been impeached regarding their involvement with the murder. However, the court chose to affirm the habeas corpus relief based on the prosecution's failure to disclose exculpatory evidence (twenty-one police reports) without addressing the ineffective assistance claim due to ongoing legal uncertainty regarding related standards.

The court modified the District Court's ambiguous order granting habeas relief to require the Commonwealth to release Slutzker unless retried within 120 days.

Federal habeas corpus typically results in a conditional release order for the petitioner unless the State opts to retry the case. The District Court granted a certificate of appealability on two grounds but noted that such a certificate was unnecessary, as the Commonwealth has the right to appeal a habeas corpus grant. Slutzker, the petitioner, initially filed his federal habeas petition pro se before being represented by Douglas Sughrue in 2002. The record does not provide details about the height of Mrs. Mudd, and this was not addressed at oral arguments. Relevant case law indicates that the one-year filing limit established by the Antiterrorism and Effective Death Penalty Act (AEDPA) allows district courts to stay mixed habeas petitions instead of dismissing them. 

The procedural default issues are significant, particularly as Slutzker does not claim a "fundamental miscarriage of justice" or present evidence of "actual innocence," which is a high standard to meet. The court must examine procedural default grounds before considering actual innocence. For statute of limitations purposes under Section 2244(d)(1), Slutzker's conviction became final in 1994, allowing him until April 23, 1997, to file a habeas petition, which was tolled by his first PCRA petition from January 1996 to November 1999. He filed his federal petition in December 1999, leaving him with nearly a full year of the statute of limitations. The limitations period begins when the factual basis for the claims could have been discovered with due diligence, not when it was actually discovered.

Slutzker's ability to discover Brady materials before September 11, 2001, is uncertain, but he has demonstrated due diligence, and the timeliness of his Brady claim is undisputed by the Commonwealth. No District Court in the circuit has allowed a stay-and-abeyance procedure for mixed habeas petitions, as seen in Beasley v. Fulcomer, which, despite its relevance in a death penalty case, does not apply to Slutzker. The precedent set in Christy v. Horn suggests a dismissal rather than a stay for mixed petitions, with no other similar cases found post-Merritt. The Supreme Court is currently reviewing the Eighth Circuit's stance on this issue.

The distinction between Slutzker’s case and Caswell v. Ryan lies in the nature of the defaults; Slutzker’s was due to a pending federal petition, unlike Caswell's inadvertent missed deadline. Establishing a Brady violation requires the defendant to demonstrate that the prosecution suppressed evidence, that it was favorable to the defense, and that it was material to the trial. The burden of proof typically rests with the party better positioned to obtain information, usually the prosecution. However, Slutzker has convincingly shown that reports were withheld, and the Commonwealth has not effectively countered this assertion.

The District Court's conclusion that statements from neighbors Dennis and Susan Ward were material is disputed. The court misinterpreted the context of Mr. Ward's statements regarding his interactions with Mrs. Mudd after the murder. Their beliefs about Slutzker's involvement further undermine the argument that their testimony would have been beneficial to the defense. Additionally, other police reports were found not to meet the standard of materiality, aligning with the Magistrate Judge's findings.