                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2007

Farmer v. Wilson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4779




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Farmer v. Wilson" (2007). 2007 Decisions. Paper 410.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/410


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                               NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 03-4779


              JAMES LEE FARMER,
                           Appellant

                          v.

        HARRY E. WILSON, Warden;
          BRADLEY FOULK, D.A.;
    *TOM CORBETT, ATTORNEY GENERAL

   *(Substituted Pursuant to Fed. R. App. P. 43(c))



   On Appeal from the United States District Court
       for the Western District of Pennsylvania
            (D.C. Civil No. 02-cv-00017E)
    District Judge: Honorable Sean J. McLaughlin



     Submitted Under Third Circuit LAR 34.1(a)
                September 17, 2007

Before: SLOVITER, SMITH and WEIS, Circuit Judges

            (Filed: September 21, 2007)
                                        OPINION



SLOVITER, Circuit Judge.

       Before us is the appeal of James Lee Farmer from the order of the District Court

denying his petition for a writ of habeas corpus.

                                             I.

       Farmer was convicted following a jury trial in a Pennsylvania court for one count

each of rape, involuntary deviate sexual intercourse, indecent assault, and unlawful

restraint. He is currently serving an aggregate sentence of nine to eighteen years

imprisonment, followed by a consecutive term of five years probation. The event, which

was the subject of the criminal charges, occurred on March 9, 1998, when Farmer and

Marcella Wiesen, the victim, were at a bowling club in Erie, Pennsylvania. Wiesen, who

was there with her sister and a friend, consumed two or three alcoholic drinks during the

three hours of bowling. At the conclusion of the bowling session, the three women went

to the bar. Farmer was also at the bar with friends.

       Wiesen and Farmer were unacquainted but at some point they left the bowling

alley and had sexual relations in Farmer’s car. The Superior Court of Pennsylvania,

quoting the Court of Common Pleas, wrote that:

       As the victim left the bowling alley, [a]ppellant grabbed her shoulders,
       physically pushed her backwards and pushed her to his vehicle. Once
       inside the vehicle, [he] grabbed [her] head [and] . . . used his body to hold
       her down . . . . she pushed in resistance, including pushing her bowling ball

                                             2
       at [him] . . . . she was unable to run away from [him].

Commonwealth v. Farmer, 758 A.2d 173, 176 (Pa. Super. Ct. 2000).

       After the encounter in the parking lot, Wiesen returned to the bowling alley.

Several people described her demeanor as “‘hysterical, distraught and disheveled.’” Id.

Someone at the bowling alley called the police and Wiesen was taken to the hospital and

had a post-rape medical examination. Farmer claimed that the encounter was consensual,

but he was subsequently arrested and charged with the four offenses noted above. Id.

The matter proceeded to trial.

       The Commonwealth presented no eyewitnesses and there was almost no physical

evidence of rape. On cross-examination, Wiesen stated that she was not threatened and

was not slapped, punched, kicked or thrown to the ground, and that Farmer did not use

any weapons except that “He used his body, and his arms and his hands. That would be

threatening to me.” She also testified that a physical exam performed by an emergency

room doctor revealed no lacerations, broken bones, or bruises, and that there was no torn

clothing; a later physical examination found no evidence of physical trauma or force. The

only possible indication of any type of trauma was a photograph of a small bruise on her

leg taken two days after the incident by the police.

       At the close of evidence and the conclusion of deliberation, the jury convicted

Farmer of all charges on March 23, 1999. On May 4, 1999, the court imposed sentence

on Farmer. With the assistance of new counsel, Farmer filed timely post-sentencing

motions, which were denied. Farmer then filed a timely direct appeal to the Superior

                                             3
Court of Pennsylvania.

       On appeal, Farmer raised a number of issues, including whether a new trial should

be granted for ineffective assistance of counsel for failure to call any character witnesses

in support of Farmer. Farmer, 758 A.2d at 176. The Superior Court denied this claim

because Farmer’s then-counsel had not filed character witness affidavits with his brief.

Id. at 179. Although Farmer’s appellate counsel filed a Motion to Alter the Record and a

Petition for Reargument, attaching the character affidavits, the court denied both motions

on September 20, 2000. Farmer filed a Petition for Allocatur to the Pennsylvania

Supreme Court on October 19, 2000, which that court denied on February 21, 2001.

       Farmer then turned to the federal courts for relief. He filed his petition for writ of

habeas corpus with the District Court on January 11, 2002, which referred the matter to

the Magistrate Judge. She filed a report and recommendation (“R&R”) on June 30, 2003,

recommending denial of the petition for habeas corpus on the ground of Farmer’s claim

of ineffective assistance of counsel. The District Court adopted the R&R. This appeal

followed. We granted a certificate of appealability as follows:

       The foregoing request for a certificate of appealability is granted with
       regard to the appellant’s claim that counsel was ineffective for failing to call
       character witnesses during the guilt phase of the trial.

                                             II.

       We must first decide the scope of the issue before us. In its original brief, filed in

December 2004, the Commonwealth argued that the District Court properly denied

Farmer’s habeas petition on the basis that his claim that counsel was ineffective for

                                              4
failing to call character witnesses at trial was procedurally defaulted. Admittedly, the

procedural default issue was not included within the certificate of appealability.

Nonetheless, in Villot v. Varner, 373 F.3d 327 (3d Cir. 2004), we held that although

“[w]e may not consider issues on appeal that are not within the scope of the certificate of

appealability . . . the merits panel may expand the scope of the COA beyond the scope

announced by the motions panel.” Id. at 337 n.13 (citing 3d Cir. LAR 22.1(b)). We may

do so sua sponte as well. Id. Accordingly, we exercise our discretion to expand the COA

to consider the procedural default issue relevant to this case.

       The Superior Court declined to reach the question of whether trial counsel was

ineffective because on appeal Farmer “failed to include any affidavits from [William

Stadler, who apparently saw Farmer and the victim in the parking lot], [Farmer’s] family,

[Farmer’s] friends, [Farmer’s] wife, or any member of the ‘plethora’ of potential

witnesses.” Farmer, 758 A.2d at 179. The Superior Court stated that this failure doomed

Farmer’s claim because “we ‘will not grant relief based on an allegation that a certain

witness may have testified in the absence of an affidavit to show that the witness would,

in fact, testify.’” Id. (citing Commonwealth v. Days, 718 A.2d 797, 803 (Pa. Super. Ct.

1998)).

       In its brief filed in December 2004, the Commonwealth argued that the Superior

Court’s determination that the absence of affidavits was dispositive of Farmer’s claim

means that Farmer has procedurally defaulted on his Sixth Amendment claim. This was

the position taken by the District Court which denied Farmer’s petition for habeas corpus

                                              5
on that ground.

       The doctrine of procedural default “and its attendant ‘cause and prejudice’

standard are ‘grounded in concerns of comity and federalism,’ and apply alike whether

the default in question occurred at trial, on appeal, or on state collateral attack.” Edwards

v. Carpenter, 529 U.S. 446, 451 (2000) (citations omitted) (quoting Coleman v.

Thompson, 501 U.S. 722, 730 (1991)). A state prisoner “‘who has failed to meet the

State’s procedural requirements for presenting his federal claims has deprived the state

courts of an opportunity to address those claims in the first instance.’” Id. (quoting

Coleman, 501 U.S. at 732). The procedural bar, however, only applies if the default was

pursuant to “an independent and adequate state procedural rule.” Coleman, 501 U.S. at

750.

       Federal habeas review is not available to a petitioner whose federal claims have

been defaulted on an independent and adequate state ground unless the petitioner can

demonstrate: 1) cause for the default and actual prejudice as a result of the alleged

violation of federal law; or 2) that failure to consider the claims would result in a

fundamental miscarriage of justice. Edwards, 529 U.S. at 451. “[C]ounsel’s

ineffectiveness in failing properly to preserve the claim for review in state court” may

suffice for cause under the exception to procedural default. Id. However, “[n]ot just any

deficiency in counsel’s performance will do, . . . the assistance must have been so

ineffective as to violate the Federal Constitution.” Id.

       In the case before us, it is important to distinguish between the claim of ineffective

                                              6
assistance of trial counsel because of the failure to call character witnesses (which is the

substantive basis of Farmer’s habeas claim) and the ineffectiveness of a different

appellate counsel in failing to preserve that issue for review by the state courts (which

presents the procedural default issue). Pennsylvania law with respect to the need to

present some proof of the testimony of the potential witness was clear from the decision

of the Pennsylvania Superior Court in Commonwealth v. Days, 718 A.2d 797 (Pa. Super.

Ct. 1998), the opinion cited by the Superior Court in Farmer’s case. In Days, the

appellant had argued that her counsel was ineffective for “failing to interview and/or call

Officer Ferguson [one of the arresting officers] as a witness.” Id. at 803. The court held

that the appellant offered “no proof that Officer Ferguson was willing and able to testify

at trial on behalf of [a]ppellant,” and it therefore rejected appellant’s claim of ineffective

assistance of counsel. Id.

       Turning to Farmer’s case, effective counsel would have known from the Days

decision of the proof required by the Pennsylvania Superior Court before it would

consider the merits of a claim that counsel was ineffective for failing to call a witness.

The Days decision was issued in September 1998, almost a year before Farmer’s appeal

to the Pennsylvania Superior Court. We can see no possible strategic reason why

appellate counsel would not have attached affidavits to Farmer’s brief to the court. Thus,

we agree with Farmer that he has shown the cause element needed to surmount the

procedural default, i.e., the ineffectiveness of appellate counsel.

       The prejudice element is evident. Because appellate counsel failed to provide the

                                               7
affidavits or proof needed to ensure that the Pennsylvania Superior Court would consider

Farmer’s claim that trial counsel was ineffective for failing to call either the fact witness

or the character witnesses, Farmer has shown prejudice. Although we are not prepared to

hold that the Pennsylvania Superior Court would have determined that the affidavits

would have proven trial counsel’s ineffectiveness had those affidavits been filed with the

brief, we believe the court would surely have considered the claim on its merits. By

pretermitting that consideration, appellate counsel’s action caused prejudice. As a result,

we hold that Farmer has adequately shown the cause and prejudice needed to surmount

the procedural default. We are satisfied that the federal courts can proceed to consider

Farmer’s substantive constitutional claim that trial counsel was ineffective for failing to

call both Mr. Stadler and some character witnesses.1

       In its brief filed December 21, 2006, the Commonwealth states that it “is

constrained to request this Court to remand this case for an evidentiary hearing to

determine whether trial counsel was in fact effective.” Appellee’s Br. at 3. We will


                    1
                      We are not unaware that under Pennsylvania law in cases
             of rape character evidence is limited to traits such as “non-violence
             or peaceableness, quietness, good moral character, chastity, and
             disposition to observe good order.” Commonwealth v. Luther, 463
             A.2d 1073, 1078 (Pa. Super. Ct. 1983). Although some of the
             typed affidavits offered by Farmer’s counsel would seem to limit
             the proposed witnesses’ character evidence to truthfulness and
             honesty, other affidavits expanded the scope of the typed form to
             include Farmer’s character. We therefore are unwilling to
             conclude that, as a matter of law, Farmer’s trial counsel would have
             been precluded from calling at least some character witnesses. Of
             course, this will be up to the District Court on remand.

                                              8
follow that course. Because the District Court did not hold an evidentiary hearing, it

never reached that issue and we believe it is appropriate for it to make that determination

in the first instance.

                                             III.

       Accordingly, we will vacate the order of the District Court denying Farmer’s

petition for a writ of habeas corpus and will remand this matter to it for further

proceedings. We note only that Farmer’s period of incarceration may be over soon, and

we request that the District Court hold a hearing at the first possible opportunity.




                                              9
