                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2002

Aikens v. Dragovich
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-1917




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Aikens v. Dragovich" (2002). 2002 Decisions. Paper 446.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/446


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 2002 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                                                    NOT PRECEDENTIAL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. 00-1917


                            JOHN AIKENS,
                                           Appellant
                                v.

            MARTIN L. DRAGOVICH; THE DISTRICT ATTORNEY
           OF PHILADELPHIA COUNTY; THE ATTORNEY GENERAL
                   OF THE STATE OF PENNSYLVANIA
                           ____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                   (D.C. Civ. No. 99-CV-06064)
           District Judge:   Honorable Robert F. Kelly
                           ____________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                          July 16, 2002
          Before: McKEE, WEIS and DUHı,* Circuit Judges.
                    Filed     July 25, 2002

                           _____________

                               OPINION


_______________________

          *Honorable John M. Duh, Jr., United States Circuit Judge for the Fifth
Circuit Court of Appeals, sitting by designation.


WEIS, Circuit Judge.
          Petitioner John Aikens was convicted of first degree murder in a non-jury
trial in state court. He was sentenced to life imprisonment on that count and two
concurrent sentences on other charges. He took a direct appeal to the Pennsylvania
Superior Court, which affirmed. He did not request allocator to the Pennsylvania
Supreme Court.
          Aiken’s petition for state post-conviction relief was denied by the Common
Pleas Court. The Superior Court affirmed and the Pennsylvania Supreme Court denied
further review.
          Aikens then began a section 2254 proceeding in the United States District
Court for the Eastern District of Pennsylvania. Without holding a hearing, the District
Court denied the writ and declined to issue a certificate of appealability. A panel of this
Court, however, certified the following three issues:

                          1.    Whether Aikens’ statement to police should have been suppressed;

                          2.    Whether evidence at trial was sufficient to support a conviction

                         3.   Whether the Pennsylvania Supreme Court’s order of May 9, 2000,
               waiving exhaustion of remedies as to application to that court
               applies retroactively to
               Aiken’s failure to apply for allocator.

We will affirm the Order of the District Court.

          Aikens was convicted on eyewitness testimony that he bludgeoned a
member of a rival gang to death with a metal pipe as the victim lay helpless on the
ground. Some four hours after being arrested at the scene, Aikens confessed to police
officers and signed a statement.
          Aikens argued during the state court proceedings that he was intoxicated
when he gave the incriminating statement and, therefore, it should have been suppressed.
The trial judge twice rejected that contention, both at trial and after an evidentiary
hearing during the PCRA proceedings. The Superior Court affirmed on the two
occasions when the issue was presented to it.
          Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"),
federal courts owe substantial deference to a state court’s factual findings resulting from
an evidentiary hearing. Werts v. Vaughn, 228 F.3d 178, 195-96 (3d Cir. 2000); Meyers
v. Gillis, 142 F.3d 664, 667 (3d Cir. 1998). The District Court rejected Aiken’s
intoxication challenge to his confession, and Aikens has failed to introduce any evidence
that would permit us to overturn the state court’s factual determination or the District
Court’s ruling on that issue.
          Nor has he persuaded us that there was insufficient evidence to sustain the
conviction in this case. Eyewitnesses testified at trial that two rival gangs from
Philadelphia had a verbal confrontation at about 8:00 p.m. on March 6, 1993. After
several hours of intermittent incidents, Aikens challenged a member of the other gang to
a fight. Armed first with a long knife, and later with a length of pipe, Aikens chased the
victim, who tripped and fell. Aikens then beat the prostrate youth over the head with the
pipe, causing his death. We find no error in the state court’s appraisal of the evidence as
the basis for the conviction.
          After the adverse action of the Superior Court in his direct appeal, Aikens
did not ask the state supreme court to review either his contention that his confession
should be suppressed or his challenge to the sufficiency of the evidence. The District
Court concluded that Aikens had not exhausted his state remedies because of that failure.

          On May 9, 2000, the Pennsylvania Supreme Court, relying on O’Sullivan
v. Boerckel, 526 U.S. 838 (1999), issued Order 218. This Order provides that a convict
need not apply to the state Supreme Court for review of an adverse decision of the
Superior Court in order to "exhaust" his state remedies in the event of a federal habeas
action.
          After the appeal in this case was filed, we held in Wenger v. Frank, 266
F.3d 218 (3d Cir. 2001), that Order 218 was not retroactive and did not apply to defaults
that occurred before the effective date of the Order. Because Aikens’ failure to apply to
the Pennsylvania Supreme Court occurred in 1995, Order 218 does not benefit him.
          Finding no error in the District Court’s Order, we will affirm.
______________________________
TO THE CLERK:


          Please file the foregoing Opinion.




                                                                /s/ Joseph F. Weis
                                            United States Circuit Judge
