                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-1995

Glass v Vaughn
Precedential or Non-Precedential:

Docket 94-1811




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Recommended Citation
"Glass v Vaughn" (1995). 1995 Decisions. Paper 247.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/247


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No. 94-1811


                          COMMER GLASS

                               V.

           DONALD T. VAUGHN; THE ATTORNEY GENERAL OF
                   THE STATE OF PENNSYLVANIA;
         THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY


         Donald T. Vaughn, Superintendent, State Correctional
         Institution at Graterford; Ernest D. Preate, Jr.,
         Attorney General of Pennsylvania and Lynne Abraham,
         District Attorney of Philadelphia County,

                                Appellants


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                 (D.C. Civil Action No. 91-00963)


                    Argued February 28, 1995

                Before: SLOVITER, Chief Judge,
               NYGAARD and McKEE, Circuit Judges

               (Opinion Filed September 7, 1995)

DONNA G. ZUCKER, ESQUIRE (Argued)
Office of the District Attorney
1421 Arch Street, 5th Floor
Philadelphia, PA 19102
Attorney for Appellants

STEPHEN A. WHINSTON, ESQUIRE (Argued)
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Attorney for Appellee




                               1
OPINION OF THE COURT




         2
NYGAARD, Circuit Judge.

           Respondents appeal from the order of the district court

granting a writ of habeas corpus to the petitioner, Commer Glass,

who is currently serving a life sentence for first-degree murder.

The district court held that Glass' trial counsel was ineffective

because he failed to investigate petitioner's military

experiences and subsequent history of bizarre behavior, which the

court concluded would have led counsel to put on a diminished

capacity defense.   We do not reach that issue.    Instead, because

petitioner's current habeas claim was procedurally defaulted in

state court and he does not fall within the "actual innocence"

exception recently set forth in Schlup v. Delo, ___ U.S. ____,

115 S. Ct. 851 (1995), we will reverse.

                                I.

           The facts of this case can be found in the published

opinion of the district court, Glass v. Vaughn, 860 F. Supp. 201

(E.D. Pa. 1994), and need only be summarized.     Petitioner Glass

was arrested for the murder of Billie Ann Morris, bound over for

trial, and retained Attorney Barry Denker to defend him.    Glass

told both the police and his attorney that he was elsewhere when

the crime was committed.   Attorney Denker's investigation was

therefore limited to interviewing petitioner and driving him

along the route he claimed to have taken on the night of the

murder.   As we shall see, however, there was much more to the

story.

           Petitioner served in the Armed Forces in Vietnam,

experiencing heavy combat.   He saw many people get killed,

                                3
including his friends.   On at least two occasions, petitioner

killed Vietnamese civilians, including a Vietnamese woman who

allegedly made a threatening gesture to a fellow soldier after a

sexual encounter.   Petitioner, like many other Vietnam veterans,

exhibited a variety of behaviors consistent with post-traumatic

stress disorder ("PTSD").   He had acted violently towards Morris

even before the murder, and remarked the day before the killing

that "women do what I say do, if not I kill them."

          Nonetheless, he never told his attorney about his

military combat experiences nor about the psychological problems

that followed.   Indeed, as the district court recognized, "no

person volunteered any information to Denker and Denker never

sought any information that would have alerted him to the

possibility of a psychiatric defense."   Glass, 860 F. Supp. at

204.   Glass did suggest that Attorney Denker interview Phyllis

Brown, whom Glass later married, to find out what type of person

he was, but Denker never interviewed her.    The district court

found that Mrs. Glass was aware of petitioner's psychological

problems and would have told Denker about them had she been

asked.

           Attorney Denker offered no witnesses at trial and did

not argue that Glass' diminished capacity from PTSD negated the

mens rea element of the crime.   Denker instead argued, consistent

with Glass' statement to the police, that he had an alibi.    The

jury found Glass guilty of first-degree murder and the court

sentenced him to life imprisonment.   While in prison, he was

formally diagnosed as suffering from PTSD.

                                 4
            Glass filed various direct appeals and habeas

proceedings, including this petition alleging that Attorney

Denker was ineffective because he failed to investigate and

pursue a diminished capacity defense.    Glass presented and lost

on this allegation of error before the state trial court in his

second postconviction relief petition.    Unfortunately, he did not

appeal.   Thus, the district court held that petitioner's federal

habeas claim was both exhausted and procedurally defaulted.

Without the "actual innocence" exception, the court noted that

his habeas claim would accordingly be barred.    860 F. Supp. at

215.   We agree.

            Glass argues on appeal that, because he raised the

issue of attorney effectiveness in his first postconviction

relief petition to the state court (which he did appeal), he has

properly exhausted the claim currently before this court.      We

disagree.    In his earlier Post Conviction Hearing Act proceeding,

Glass argued that his postconviction counsel was ineffective for

not amending the petition to include the after-discovered

evidence of PTSD and diminished capacity, even though he had made

counsel aware of the prison psychologist's diagnosis.       Here,

Glass asserts that his trial counsel was ineffective because he
failed to investigate a defense based on an undisclosed and

undiagnosed psychiatric condition.    We cannot say that Glass'

earlier petition fairly presented this issue to the state

appellate courts.




                                 5
          The district court, however, held that Glass made out a

claim of "actual innocence" sufficient to overcome petitioner's

procedural default. It opined:
          If the evidence [of PTSD] had been presented
          at trial, there is certainly a fair
          probability that a trier of fact would have
          entertained a reasonable doubt as to his
          guilt of murder in the first degree. Thus,
          the court concludes that petitioner has
          suffered a fundamental miscarriage of justice
          in that a constitutional violation,
          ineffective assistance of counsel, has
          probably resulted in the conviction of
          petitioner of murder in the first degree when
          he is actually innocent of that crime and
          guilty of murder in the third degree.


Id. at 216.

          The court ordered an evidentiary hearing to decide

Glass' habeas petition on its merits.   Petitioner called three

expert witnesses, two of whom would have been available to

testify in 1976.   Respondents called one.    All of the witnesses

testified that there was sufficient information in the mental

health literature about PTSD that the condition could have been
diagnosed and presented at Glass' trial.     Moreover, all testified

that Glass indeed suffered from PTSD at the time of the murder.

They differed, however, in their opinions whether Glass was in a

dissociative state that impaired his ability to deliberate or

premeditate, making him innocent of first-degree murder.

Petitioner's experts testified that Glass was in such a state;

respondents' expert was unable to reach a conclusion without

further testing.




                                6
          The district court found that petitioner was prejudiced

at trial because counsel failed to pursue a diminished capacity

defense, and that Attorney Denker unreasonably failed to

investigate facts indicating the possibility of such a defense.

It accordingly concluded that trial counsel was ineffective and

granted the writ.

                                II.

          After the initial briefing in this appeal, the Supreme

Court handed down its decision in Schlup, which concerned the

standard for actual innocence claims.   We requested that the

parties submit supplemental briefs on the question of whether a

diminished capacity defense--which goes to the degree of guilt

rather than factual guilt--can state an actual innocence claim in

light of Schlup.    Schlup itself does not determine that issue.

          In Schlup, a prison inmate was charged with murdering a

fellow inmate.   He was convicted of first-degree murder and

sentenced to death.   Schlup's habeas petition alleged that his

counsel was ineffective and that the prosecution had improperly

withheld evidence from him.   He argued that he was factually

innocent, but nonetheless was found guilty as a result of these

constitutional errors.   The Supreme Court established a strict

test for claims of actual innocence.
               The . . . habeas petitioner [must] show
          that a constitutional violation has probably
          resulted in the conviction of one who is
          actually innocent. To establish the
          requisite probability, the petitioner must
          show that it is more likely than not that no
          reasonable juror would have convicted him in
          the light of the new evidence. The
          petitioner thus is required to make a


                                 7
          stronger showing than that needed to
          establish prejudice. . . .

Id. at 867 (emphasis added, citations and internal quotation
marks omitted).  The Court continued:
               The meaning of actual innocence . . .
          does not merely require a showing that a
          reasonable doubt exists in the light of the
          new evidence, but rather that no reasonable
          juror would have found the defendant guilty.
          It is not the district court's independent
          judgment as to whether reasonable doubt
          exists that the standard addresses; rather
          the standard requires the district court to
          make a probabilistic determination about what
          reasonable, properly instructed jurors would
          do. Thus, a petitioner does not meet the
          threshold requirement unless he persuades the
          district court that, in light of the new
          evidence, no juror, acting reasonably, would
          have voted to find him guilty beyond a
          reasonable doubt.

Id. at 868.

          The district court, without the benefit of the Supreme

Court's opinion in Schlup, and relying on the earlier actual

innocence cases of Murray v. Carrier, 477 U.S. 478, 106 S. Ct.

2639 (1986), and Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct.

2616 (1986), held that petitioner need only show "a fair
probability that a trier of fact would have entertained a

reasonable doubt as to his guilt of murder in the first degree."

860 F. Supp. at 216.   It additionally found that Glass "would

have chosen a diminished capacity defense based on his PTSD if he

had been fully informed."   Id. at 215.   Because it found a fair

probability that a trier of fact would have entertained a

reasonable doubt as to his guilt, the court concluded that Glass

had satisfied the requirements for an actual innocence claim.



                                8
          The Supreme Court has not decided whether the actual

innocence test is applicable in a noncapital case when there is

evidence that defendant committed the crime but argues that he or

she was responsible for a lesser degree of guilt.   For purposes

of this opinion, we will assume arguendo that the actual

innocence test applies.   Nonetheless, we cannot conclude under

the Schlup test that petitioner has shown that it is more likely

than not that no rational juror would have voted to convict

Glass.   Therefore, petitioner's actual innocence claim is doomed

under the Schlup standard.

           The gravamen of Glass' psychiatric evidence was that he

was suffering from PTSD and was in a dissociative state at the

time of the murder, having no intent to kill and no recollection

of the murder after it happened.    These psychiatric opinions,

however, were based entirely on Glass' subjective reporting and

were arrived at years after the crime.    On the other hand, there

was evidence that Glass went to the murder scene armed and that

he had earlier behaved violently towards the victim.    Moreover,

when arrested, Glass did not give the police the explanation he

now proffers--that he had no memory of what happened--but relied

instead on an alibi that he was not even at the scene when the

killing occurred.   Based on this record we cannot conclude that

no rational juror would have voted to convict Glass of first-
degree murder.

           Accordingly, petitioner has not made out a claim of

actual innocence.   His habeas petition is therefore barred, and

we will reverse the judgment of the district court.

                                9
