                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-2005

Michael v. Horn
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-9002




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Recommended Citation
"Michael v. Horn" (2005). 2005 Decisions. Paper 711.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/711


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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                     No. 04-9002
                                     ___________

                               HUBERT L. MICHAEL,

                                                  Appellant

                                           v.

           MARTIN HORN, Commissioner, Pennsylvania Department of
         Corrections; *DAVID DIGUGLIELMO, Superintendent of the State
        Correctional Institution at Graterford; JOSEPH P. MAZURKIEWICZ,
          Superintendent of the State Correctional Institution at Rockview

                    (*Amended - See Clerk’s Order dated 1/6/05)
                                  ___________

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                          (D.C. Civil No. 96-cv-01554)
               District Judge: The Honorable Thomas I. Vanaskie
                                  __________

        BEFORE: NYGAARD*, AMBRO, and GREENBERG, Circuit Judges

                               (Filed August 10, 2005)
                                    ___________

                             OPINION OF THE COURT
                                  ___________

AMBRO, Circuit Judge

     In the current context, we relate only a brief summary of this case’s history. In

     * Honorable Richard L. Nygaard assumed senior status on July 9, 2005.
October 1994, Hubert Michael pleaded guilty to the kidnapping and shooting death of a

sixteen-year-old female and was sentenced to death by the Commonwealth of

Pennsylvania. During proceedings (both on direct appeal and on collateral review under

the Pennsylvania Post-Conviction Relief Act), Michael expressed, at different times,

either a desire to challenge his death sentence or an unwillingness to contest that

sentence.

       In the course of habeas proceedings in the District Court, Michael wrote to the

Court in January 2001 to request that no further proceedings occur in his case. The

District Court ordered a competency evaluation for Michael. Following an evidentiary

hearing and oral argument, the District Court found that Michael was competent and that

he knowingly, rationally, and voluntarily made his choice to waive federal collateral

review, ordered that the Capital Habeas Corpus Unit of the Defender Association of

Philadelphia (“Defender Association”), and Joseph M. Cosgrove, Esq., be dismissed as

counsel, and granted Michael’s motion to dismiss the habeas corpus petition.

       Following the entry of the District Court’s March 10, 2004 order, the Defender

Association filed a notice of appeal from that order to this Court. Subsequently, Michael

submitted a letter indicating that he did not wish the appeal to proceed, and the

Commonwealth moved for dismissal. On May 4, 2004, we conditionally granted the

Commonwealth’s Motion to Dismiss. The entry of the order was suspended for ten days

to afford Michael a final opportunity to indicate his desire to proceed with federal review

of his case. Michael filed a document the following day, May 5, 2004, indicating his

                                             2
desire to proceed and his wish to have new counsel appointed in his appeal. We then

scheduled oral argument.

       At oral argument, there was some question regarding the District Court’s actions

regarding the appointment and dismissal of counsel. Following oral argument, we

granted a certificate of appealability on the question of “whether the District Court

violated 21 U.S.C. § 848(q)(4)(B) in dismissing counsel for Hubert Michael and, if the

District Court so erred, whether this error was harmless.” 1

       On November 26, 2004, the Clerk’s Office received a letter from Michael that was

construed as a Motion to Withdraw Appeal and to dismiss Cosgrove as his counsel. On

December 3, 2004, the panel entered an order directing counsel for all parties to file a

response to the pro se motion. In response, Cosgrove indicated that Michael was

“anything but steadfast in his desire to terminate this appeal or my representation of him.”

       On January 5, 2005, in yet another attempt to ascertain Michael’s position, we

entered an order that warned Michael as follows:

       If you dismiss this appeal you will waive all further right to pursue this
       appeal. As a result you may also be denied any further review of your
       conviction and sentence by this or any other court. Additionally, in the
       future, you may be legally prohibited from filing a new habeas petition or
       other petition for review. In short, your dismissal of this appeal may
       terminate any further judicial review of your conviction and sentence.

(Emphasis in original.)



  1
   Under § 848(q)(4)(B, an individual such as Michael “seeking to vacate or set aside a
death sentence . . . [who is] financially unable to obtain adequate representation . . . shall
be entitled to the appointment of one or more attorneys. . . .” 21 U.S.C. § 848(q)(4)(B).

                                               3
       On February 22, 2005, Michael sent a letter to the Clerk’s Office indicating that he

had read the Court’s order of January 5, 2005, and that he fully understood the

consequences of his waiver. Moreover, Michael indicated that he had consulted with

counsel and that he nonetheless wished to withdraw his appeal. The following day, after

a meeting with Cosgrove, a request was filed to defer any consideration of this letter for a

period of two weeks so that Michael could further consult with counsel. We deferred our

decision in the appeal to permit counsel time to meet once again with Michael. On March

18, 2005, Cosgrove submitted a document entitled “Report of Counsel” indicating that a

litigation plan was under development for Michael and asking us to proceed with a

resolution of the question presented in the Certificate of Appealability. However, ten

days later, Michael filed another document indicating his desire to dismiss his appeal.

Additionally, on May 23, 2005, Michael filed a statement with the Court in which he

again asked for dismissal of his appeal.

       On June 2, 2005, we issued the following order:

       Inasmuch as the petitioner is represented by counsel, the pro se letters to
       withdraw the appeal are denied. The District Court’s order entered March
       10, 2004, is vacated to the extent that it dismissed Joseph M. Cosgrove,
       Esq., as counsel, granted Michael’s motion to dismiss his habeas corpus
       petition and vacated the stay of execution. The matter is remanded for
       further proceedings to determine whether habeas corpus relief is warranted.
       We express no opinion on such questions as whether Michael’s claims are
       exhausted, procedurally barred or meritorious. In the event that Michael
       files any further pro se motions to dismiss his petition, we urge the District
       Court to deny them summarily. See Smith v. Armontrout, 865 F.2d 1515




                                             4
         (8th Cir. 1988); St. Pierre v. Cowan, 217 F.3d 939, 949-50 (7th Cir. 2000).2

Appellees Martin Horn et al. filed a petition for panel rehearing or rehearing en banc. An

order denying the petition was filed on July 7, 2005, over Judge Greenberg’s dissent, and

the mandate 3 issued on July 8, 2005.

         We have the inherent power to recall a mandate subject to review by the Supreme

Court for abuse of discretion, though that power should be exercised only in extraordinary

circumstances. Calderon v. Thompson, 523 U.S. 538, 550 (1998); see also Bell v.

Thompson, 125 S. Ct. 2825, ___ (2005). In explaining that recall may be warranted for

good cause, to prevent injustice, or in special circumstances, we have identified five

situations which would justify recalling the mandate: 1) where clarification of the

mandate and opinion is critical; 2) where misconduct has affected the integrity of the

judicial process; 3) where there is a danger of incongruent results in cases pending at the


  2
      The dissent read:

         Judge Greenberg would dismiss this appeal. He points out that the district
         court found appellant competent and that the appellant has made his
         position with respect to dismissing his appeal absolutely clear. On May 25,
         2005, appellant filed a statement with this court dated May 23, 2005, that he
         indicated was “regarding: sentence of death” in which he stated his position
         as follows: “I ask this court to dismiss any appeal(s) presently being argued
         before this court. I have had ample time to discuss all the possibilities, and
         probabilities, with my attorney, Joseph Cosgrove. I am satisfied with the
         sentence imposed upon me.” In Judge Greenberg’s view, the court should
         honor appellant’s position. See United States v. Hammer, 226 F.3d 229 (3d
         Cir. 2000).
  3
   As the panel disposed of the case by order and not opinion, a formal mandate did not
issue. Because this distinction is without substantive effect, we refer to the order as a
mandate.

                                               5
same time; 4) where it is necessary to revise an “unintended” instruction to a trial court

that has produced an unjust result; and 5) where a subsequent Supreme Court decision

showed that the original judgment was demonstrably wrong. Am. Iron & Steel Inst. v.

EPA, 560 F.2d 589, 593-95 (3d Cir. 1977).

       Here, clarification of the Court’s decision is critical for two reasons. First, the

order leaves the District Court with little guidance in this complicated case as to our

reasons for remanding the case for further proceedings and, indeed, does not identify

what error (if any) the District Court committed in connection with the decision appealed.

Second, this case presents significant issues concerning a death row inmate who has given

different indications about his desire to have a challenge to his sentence heard. We have

grappled with these issues before. See Hammer, 226 F.3d at 231-37; United States v.

Hammer, 239 F.3d 302, 302-07 (3d Cir. 2001) (Nygaard, J., dissenting from denial of

rehearing en banc). These issues have proven to be recurring, and in order to issue an

opinion to provide clarification for future cases (and to revisit matters pertaining to the

June 2, 2005 order), it is necessary to recall the mandate.

       We are mindful that the Supreme Court has indicated that “the promptness with

which a court acts to correct its mistakes is evidence of the adequacy of its grounds for

reopening.” Calderon, 523 U.S. at 553. Accordingly, we are endeavoring to act

promptly in recalling our mandate. Further, the Supreme Court has cautioned that “the

State’s interests in finality are all but paramount, without regard to . . . [the grounds on

which a] court of appeals predicates the recall . . . .” Id. at 558. Here, unlike the

                                               6
situation addressed in Calderon, we would not be disrupting the finality of the

proceedings but rather clarifying the issues presented in the litigation.

       For these reasons, recall of our mandate is warranted. Further, (i) we vacate our

order of July 7, 2005, to the extent it denied panel rehearing, (ii) grant Appellees’ petition

for panel rehearing, and (iii) vacate our order of June 2, 2005.4

       An appropriate order follows.



GREENBERG, Circuit Judge, concurring

       I concur with and join in Judge Ambro’s opinion to the extent that it withdraws the

mandate and in particular concur with and join in footnote 3 specifying the purpose of an

oral argument in this case. I also concur with and join in the order accompanying the

opinion. I do not concur with and join in the portion of his opinion indicating that “this

case presents significant issues concerning a death row inmate who has given different

indications about his desire to have a challenge to his sentence heard.” To the extent that

this portion of the opinion refers to the proceedings in the district court, it is beyond the

scope of our certificate of appealability. Of course, my reservation does not preclude me

from joining in the order being entered.




  4
   Oral argument will be scheduled so that the parties can address the following: (1)
whether Michael’s appeal should be dismissed in light of his filings indicating he does not
wish the appeal to proceed; and (2) whether the District Court violated 21 U.S.C.
§ 848(q)(4)(B) in dismissing counsel for Michael and, if the District Court so erred,
whether this error was harmless.

                                               7
NYGAARD, dissenting.

       The circumstances presented by this case do not rise to the “extraordinary” level

contemplated by the Supreme Court in Calderon v. Thompson, 523 U.S. 538 (1998)

(holding that courts of appeal may recall their mandate only in extraordinary

circumstances). As Judge Ambro points out, we may recall our mandate when

clarification is critical. See Amer. Iron & Steel v. EPA, 560 F.2d 589, 593 - 95 (3d Cir.

1997). Here, clarification is unnecessary; the mandate we are recalling is unambiguous.

In reading our June 2, 2005 order, the District Court would know precisely what steps to

take to conclude this litigation. The order remanded this case to the District Court to

consider specifically whether habeas corpus relief on the merits was warranted. Relying

on applicable case law, we further instructed the District Court how to resolve future

conflicts between Michael and his counsel. See St. Pierre v. Cowan, 217 F.3d 939 (7 th

Cir. 2000); Smith v. Armontrout, 865 F.2d 1515 (8 th Cir. 1989). Thus, further clarification

of our mandate is not necessary.

       The majority posits two reasons why clarification of our mandate is necessary.

First, it held that our order provides scant guidance to the District Court in this

complicated case. As explained, I do not believe this is the case. Second, the Majority

maintains this case presents “significant issues” concerning death-row inmates who

vacillate between pursing their appeals and withdrawing from further federal litigation.

While I agree such situations present important issues that should be addressed, that this

issue remains unaddressed is irrelevant to the question of whether our mandate is in

                                               8
critical need of clarification. The purpose of clarification is to elucidate an otherwise

unintelligible or ambiguous order, not to give a panel of this Court an opportunity to

address issues anew, however significant those issues may be. Both of the reasons

proffered by the majority here misconstrue the purpose of clarification. Moreover, even

were I to concede that our order is ambiguous and requires further clarification, we could

simply supplement our order with an opinion, thereby avoiding the drastic action of

recalling our mandate.

       More troubling than the majority’s misapprehension of precedent, however, is its

apparent willingness to disregard our institutional rules and procedures in order to affect

the outcome of this litigation. Internal Operating Procedure 9.5.2 provides a ten day

period of review for petitions for rehearing en banc. The Commonwealth of Pennsylvania

filed such a petition on June 16, 2005. Pursuant to I.O.P. 9.5.2, a copy of the petition was

transmitted by our Clerk’s office to all active judges of this court, as well as to Judge

Greenberg, who sat on the original panel. It was at this point that the ten day clock began

to run. Not only did no member of this Court vote for rehearing during this time period,

no judge even sought an answer to the petition for rehearing. See I.O.P. 9.5.2. Once the

ten day period expired, an order was prepared denying rehearing en banc. This Order was

not immediately filed so that Judge Greenberg could prepare an opinion sur denial of

rehearing, which was appended to and published with the order denying rehearing on July

7, 2005. Therefore, according to our own rules, we ought not grant rehearing. In our

jurisprudential system, the rules must be followed in every case. Due process requires as

                                              9
much. Yet today, we brush aside our established rules because a judge whose opinion did

not garner majority support, either on the merits or on petition for rehearing, feels

particularly distressed about a result he could not alter. We ought remind ourselves of the

well-known axiom that "to perform its high function in the best way[,] 'justice must

satisfy the appearance of justice.'" In re Murchison, 349 U.S. 133, 136, (1955) (quoting

Offutt v. United States 348 U.S. 11, 14, (1954)). I find it difficult to reconcile this time-

test axiom with what happened in this case. I fear the majority’s actions today

undermines respect for notions of fundamental fairness. I dissent.




                                              10
