                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2006

Cook v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4965




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CPS-210                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-4965

                             ROBERT L. COOK, JR.;
                              MARVIN SPENCE,

                                        Appellants

                                          v.

 CITY OF PHILADELPHIA, (A Subdivision of the Commonwealth of Pennsylvania);
    RONALD D. CASTILLE, (Former District Attorney of Philadelphia); LYNNE
 ABRAHAM, (District Attorney of Philadelphia); JACK MCMAHON, Esq. (Former
  Assistant District Attorney in Philadelphia); JANE DOE, (Employee of the City of
 Philadelphia); JOHN DOE, (Employee of the City of Philadelphia); RACHEL ROE,
  (Employee of the City of Philadelphia); RICHARD ROE, (Employee of the City of
             Philadelphia), Individually, and in their Official Capacities
                                  _______________

                  On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                           (D.C. Civ. No. 04-cv-02173)
                    District Judge: Honorable Louis H. Pollak
                  _______________________________________

                    Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                                 April 27, 2006
            Before: BARRY, SMITH AND NYGAARD, Circuit Judges

                             (Filed: May 16, 2006)
                           _______________________

                                   OPINION
                           _______________________

PER CURIAM

     Appellants Robert Cook and Marvin Spence appeal from the dismissal of their
complaint under Federal Rule of Civil Procedure 12(b)(6). We will dismiss the appeal

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

                                             I.

       Robert Cook and Marvin Spence are both current Pennsylvania inmates who were

tried and convicted of murder. Beyond that, their cases are unrelated except that

Assistant Philadelphia District Attorney Jack McMahon represented the Commonwealth

at both trials. In April 1997, the District Attorney’s Office (“DAO”) released a training

video depicting Jack McMahon repeatedly advising his audience to use peremptory

strikes against Black jurors, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

Because the Appellants’ procedural histories and current statuses are widely divergent,

we briefly summarize each case below.

A.     Robert Cook

       In 1988, a Philadelphia jury convicted Cook of first-degree murder. The trial court

sentenced him to life imprisonment and a concurrent term on a weapons offense. After

unsuccessfully pursuing an appeal and a Post-Conviction Relief Act (“PCRA”) petition,

he filed a second PCRA petition in 1997. While this petition was pending, the DAO

released the McMahon tape. Counsel filed an untimely amended petition in 1999, which

the PCRA court dismissed. An appeal was also dismissed for lack of jurisdiction. In

2003, Cook filed a petition pursuant to 28 U.S.C. § 2254 in the District Court alleging a

Batson violation. The District Court dismissed the petition holding that it was untimely

under 28 U.S.C. § 2244(d)(1). See Cook v. Beard, No. 03-05324 (E.D. Pa.).

                                             2
       A jury also found Cook guilty of a second unrelated murder in 1988, and

subsequently sentenced him to death. Again, his conviction and sentence were affirmed

on direct appeal. He filed for PCRA relief in 1999, raising a Batson claim. The PCRA

court found no violation of Batson, but granted him a new sentencing hearing. He was

subsequently resentenced to life imprisonment.

B.     Marvin Spence

       In 1988, Spence was arrested and charged with aggravated assault and murder. A

jury found him guilty of first-degree murder and sentenced him to death. On June 15,

2000, Spence filed a PCRA petition raising a Batson challenge. In 2004, the PCRA court

vacated the conviction and sentence on Batson grounds and granted Spence a new trial,

which is currently ongoing.

C.     Current Litigation

       Cook and Spence jointly filed a single complaint under 42 U.S.C. §§ 1983, 1985,

and 1986, alleging violations of their Fourth, Fifth, Eighth, and Fourteenth Amendment

rights as well as numerous state law causes of action. They also allege that the District

Attorneys and the City of Philadelphia inadequately trained and supervised Assistant

District Attorneys. Cook and Spence each request twenty million dollars in monetary

damages, plus court costs.

       The District Court found that the favorable termination rule announced in Heck v.

Humphrey, 512 U.S. 477 (1994), bars both Plaintiffs from seeking relief through a civil

rights claim because a favorable ruling would necessarily imply the invalidity of the

                                             3
convictions. We agree, but for slightly different reasons.1

                                              II.

         We have jurisdiction under 28 U.S.C. § 1291, and will dismiss an appeal under

§ 1915(e)(2)(B)(I) when the appeal is completely lacking in legal or factual merit. See

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A.       Cook’s Convictions

         We first address whether Heck prevents Cook from asserting his civil rights

claims. In Heck, the Supreme Court held that a litigant cannot proceed under § 1983 if

success on his claim would necessarily imply the invalidity of the fact or duration of his

conviction or sentence. 512 U.S. at 481. The Court more recently clarified this position

by stating that state prisoners must “use only habeas corpus remedies . . . when they seek

to invalidate . . . their confinement–either directly through an injunction compelling

speedier release or indirectly through a judicial determination that necessarily implies the

unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242,

1247 (2005).

         Cook’s first conviction has never been reversed, vacated, or called into question.

A holding by this Court declaring that the jury was purposefully improperly empaneled


     1
     To the extent the Appellants seek review over the denial of their motion to amend the
complaint to add William Basemore as a Plaintiff and their motion for class certification,
the appeal with respect to these issues is meritless as well. First, Basemore never
submitted any indication of his intent to join as a Plaintiff. Second, a class action under
Federal Rule of Civil Procedure 23 will not stand where the proposed representative
parties are dismissed.

                                               4
would call into question the validity of Cook’s conviction. See Batson, 476 U.S. at 100

(requiring reversal where a Batson violation exists). The District Court correctly found

that Cook’s claims with respect to his first conviction are barred. For similar reasons,

Cook’s claims with respect to his second conviction are also barred. The only notable

distinction between his first and second conviction is that because Cook was resentenced

on the latter, he may have the ability to raise his claims on direct appeal, thereby

potentially receiving the relief to which he believes he is entitled. This possibility does

not alter the conclusion that, at this stage, the conviction has not been invalidated.

B.     Spence’s Conviction

       Unlike Cook, Spence did receive relief on his Batson claim. Relying on Smith v.

Holtz, 87 F.3d 108 (3d Cir. 1996), the District Court concluded that “the jury selection

claims would not necessarily invalidate any future trial heard by a properly empaneled

jury, but, as in Smith, Spence’s claims of conspiracy and withholding of exculpatory

evidence would invalidate any possible conviction that might arise out of a new trial.”

Cook v. City of Philadelphia, No. 04-2173, Order at 7 (E.D. Pa. Oct. 12, 2005).

       In Smith, we explained that the favorable termination rule applies to pending

charges as well as final convictions. See Smith, 87 F.3d at 112-13. There, the

Pennsylvania Supreme Court vacated a conviction because the trial court improperly

admitted otherwise inadmissable hearsay evidence. Smith then discovered that the

prosecution had intentionally withheld exculpatory information. Smith filed a motion to

dismiss his charges arguing that intentional misconduct places any retrial within the scope

                                              5
of the Double Jeopardy Clause. The Pennsylvania Supreme Court agreed and dismissed

the charges holding that “the Double Jeopardy Clause of the Pennsylvania Constitution

prohibits retrial of a defendant . . . when the conduct of the prosecutor is intentionally

undertaken to prejudice the defendant to the point of the denial of a fair trial.”

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). It continued that the intentional

withholding of material exculpatory evidence rose to the point of denying a fair trial.

       We were called on to address whether the statute of limitations for filing a civil

rights complaint commenced at the time Smith discovered that the prosecution withheld

exculpatory materials, or when his charges were dismissed. Id. at 110-11. We concluded

that Heck barred the suit until the charges were dismissed because a holding in Smith’s

favor would have implied the invalidity of any future conviction. Id. at 113-14.

       The District Court held that ruling in Spence’s favor with respect to the Batson

issue would not necessarily imply the invalidity of his future conviction. We assume this

is because finding that the previous jury was intentionally improperly empaneled does not

appear to affect the validity of a newly selected panel. However, a ruling against

McMahon that he intentionally excluded Black venire members to deny Spence a fair trial

would invoke Pennsylvania’s Double Jeopardy Clause and require the dismissal of all

charges. See Smith, 615 A.2d at 325. The same is true for his official liability claims.

See Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003)

(explaining that success on a failure to train case requires a showing of a conscious or

deliberate choice that a particular policy shall govern official conduct). Finally, his

                                              6
conspiracy and failure to intervene claims under 42 U.S.C. §§ 1985 and 1986 are also

barred under Heck because to prove either claim, Spence must show that he was denied

his constitutional rights and that the officials intended or knew about the deprivation. See

Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989) (§ 1985); 42 U.S.C. §

1986; Jones v. City of Philadelphia, 491 F. Supp. 284, 288 (E.D. Pa. 1980) (requiring that

officials possess knowledge of the deprivation in order to be liable under § 1986).

Spence’s request for the appointment of counsel on appeal is denied as moot.2

       For the foregoing reasons, we will dismiss the appeal under 28 U.S.C. §

1915(e)(2)(B)(I).




  2
     We note that District Court did not abuse its discretion in declining to address the
state causes of action. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726
(1966).
