                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

Phillips v. Stickman
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3540




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Recommended Citation
"Phillips v. Stickman" (2008). 2008 Decisions. Paper 309.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3540


                          ROBERT ANDREW PHILLIPS, IV,

                                             Appellant

                                             v.

               WILLIAM S. STICKMAN; NICHOLAS R. RADOYCIS;
                            *GERALD J. PAPPERT
                           *Pursuant to F.R.A.P. 43(c)




                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                  (D.C. No. 03-cv-186)
                      District Judge: Honorable David S. Cercone


                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 28, 2008

                  Before: SLOVITER, GREENBERG, Circuit Judges,
                          and IRENAS,* Senior District Judge.

                                (Filed: October 30, 2008)




   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                          OPINION


IRENAS, Senior United States District Judge.

       Appellant Robert Andrew Phillips, IV, appeals the district court’s denial of his

petition for a writ of habeas corpus. The sole issue is whether the Commonwealth of

Pennsylvania violated Appellant’s constitutional rights under Brady v. Maryland, 373

U.S. 83 (1963), by failing to disclose exculpatory evidence during his criminal trial. We

will affirm.

                                              I.

       We review the facts and procedural history only insofar as relevant to the issue

before us. Appellant was tried in the Court of Common Pleas of Allegheny County on a

series of charges associated with intentionally setting fire to a residential structure. Brian

O’Toole appeared as a Government witness and testified that he observed Appellant

outside of the burning home on the night in question. On cross-examination, O’Toole

was impeached on the basis of (1) prior inconsistent statements and (2) his capacity to

perceive the relevant events after consuming alcohol earlier in the night. Appellant was

ultimately convicted of multiple offenses including first degree murder and arson.

       On direct appeal, Appellant for the first time articulated his current theory that the

Commonwealth violated Brady by withholding impeachment evidence relating to

                                              2
O’Toole. Specifically, Appellant’s Concise Statement of Matters Complained of on

Appeal stated:

       The Commonwealth violated Defendant’s constitutional right to a fair trial
       and it’s [sic] continuing duty to disclose exculpatory evidence where the
       Commonwealth’s eyewitness to this fire, Brian O’Toole, has since been
       charged with thirty-two (32) counts of arson shortly after the conclusion of
       this case where the Commonwealth must have been aware of the continuing
       investigation into this witness’s involvement in arsons in the area in which
       this crime took place.

(App. at 94-95.) The O’Toole issue appeared intermittently in Appellant’s subsequent

filings in the Pennsylvania state courts, both on direct appeal and while seeking post-

conviction relief pursuant to Pennsylvania statutes.1 In district court action, the

Commonwealth expressly conceded that Appellant had exhausted the O’Toole issue.

(Appellee Br. at 33 n.9.)

                                              II.

       The district court exercised jurisdiction under 28 U.S.C. § 2254. This Court has

jurisdiction to review the District Court’s order denying the petition for a writ of habeas

corpus pursuant to 28 U.S.C. §§ 1291 and 2253. When the district court denies a petition

without conducting a hearing, our review is plenary. Fahy v. Horn, 516 F.3d 169, 179

(3d Cir. 2008).



   1
     Appellant’s Brief to the Superior Court of Pennsylvania did not address the O’Toole
issue. (App. at 130.) It is unclear whether O’Toole was mentioned in Appellant’s
Allowance of Appeal to the Supreme Court of Pennsylvania. (See Appellee Br. at 7-8.)
The issue resurfaced when Appellant sought relief under Pennsylvania’s Post-Conviction
Relief Act. (See App. at 108.)

                                              3
                                                III.

       It is uncertain whether Appellant properly exhausted the O’Toole issue in the state

courts. Federal habeas review is generally only appropriate when the party seeking relief

has exhausted his claim. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).

Exhaustion requires fair presentation of a claim “to the state courts ‘by invoking one

complete round of the State's established appellate review process.’” Carpenter v.

Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838,

845 (1999)). Here, Appellant’s sporadic references to O’Toole in filings with the

pertinent state tribunals leave us questioning whether he properly exhausted this issue.

       However, it is unnecessary to resolve that question because the Commonwealth

expressly conceded exhaustion in the district court. “[W]here a state fails to raise a

nonexhaustion defense in the district court,” we may address the merits of an unexhausted

habeas claim in “the interests of justice . . . if it is clear the petitioner has failed to state a

colorable federal claim . . . .” Lambert v. Blackwell, 134 F.3d 506, 514 (3d Cir. 1998)

(citing Granberry v. Greer, 481 U.S. 129, 136 (1987)). The instant case presents such a

circumstance, and thus we proceed to the merits of Appellant’s Brady claim.

       We issued a certificate of appealability permitting Appellant to argue that the

Commonwealth violated Brady by failing to disclose impeachment evidence pertaining to

O’Toole’s supposed involvement in thirty-two unrelated arson fires. There are three



                                                 4
components of a Brady violation: “the evidence at issue must be favorable to the

defendant; it must be material; and it must have been suppressed by the prosecution.”

United States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008). This legal standard

presupposes the existence of evidence to evaluate; in this case, Appellant has presented us

with no such evidence.

       Instead, Appellant’s suggestion that O’Toole was a suspect in thirty-two unrelated

arson fires is nothing more than a bald assertion unsupported in the record. Appellant has

not directed us towards any verification that a spree of arson fires even existed, let alone

demonstrated that O’Toole was suspected of igniting any such fires. Appellant has thus

“failed to state a colorable federal claim” of a Brady violation.2

                                             IV.

       For the reasons set forth above, the judgment of the United States District Court

for the Western District of Pennsylvania denying Appellant’s petition for a writ of habeas

corpus will be affirmed.




   2
     Notwithstanding the limited scope of the certified issue, Appellant dedicates much of
his brief to seeking remand for further development of the record. Under Rule 6 of the
Rules Governing Section 2254 Cases, “[a] district court sitting in a habeas case retains the
discretion to permit additional discovery if the petitioner presents ‘good cause’ to do so. ”
Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994) (citing Rule 6(a)). As explained
above, Appellant’s allegations regarding O’Toole are entirely without support in the
record. Hence, he cannot demonstrate the requisite “good cause” under Rule 6.


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