                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3949




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                                                                 NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 02-3949
                                      ___________

                                 EDWARD SISTRUNK
                                  a/k/a Omar Askia Ali

                                              v.

        *MARTIN DRAGOVICH, SUPERINTENDENT, SCI CHESTER;
    ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA;
         THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY


                                             Edward Sistrunk, Appellant


                     *(Amended - See Clerk's Order dated 11/6/03)




           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                              (D.C. Civil No. 90-cv-01415)
                      District Judge: The Honorable M arvin Katz

                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 11, 2004

BEFORE: SLOVITER and NYGAARD, Circuit Judges, and SHADUR*, District Judge.

*Honorable Milton I. Shadur, United States District Judge for the Northern District of
 Illinois, sitting by designation.
                                 (Filed March 30, 2004)

                                      ___________

                              OPINION OF THE COURT
                                   ___________


NYGAARD, Circuit Judge.

             In this appeal from the District Court’s denial of his petition for a writ of

habeas corpus, Edward Sistrunk1 raises two issues. Taken verbatim from his brief they

are:

             (1)    Does the statutory requirement that a habeas corpus petitioner

                    exhaust state remedies before bringing a claim before the federal

                    court require the petitioner, even in defiance of state rules of

                    procedure, to elaborate every fact which supports the showing of a

                    constitutional violation that is later presented on habeas corpus to the

                    federal courts?

             (2)    Was the petitioner-appellant deprived of liberty without due process

                    of law by prosecutorial misconduct in closing argument at his 1981

                    retrial in the Philadelphia Court of Common Pleas on robbery and

                    murder charges?



1.      Since the inception of this case the appellant has changed his name to Om ar
Askia Ali. For the sake of consistency, we w ill refer to the appellant as Sistrunk, as
did the District C ourt.

                                             2
Appellant’s Br. at 2.

              We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because

Sistrunk’s first issue is controlled by the law of the case and the second is without merit,

we will affirm.

                                              I.

              This Court has previously addressed Sistrunk’s petition for a writ of habeas

corpus. Sistrunk v. McCullough, 159 F.3d 1353 (3d Cir. 1998) (Table) (“Sistrunk I”).

Sistrunk I provides a thorough summary of the procedural posture and factual history of

this case up through Sistrunk I’s remand to the District Court and, because we write for

only the parties, we will not rehash this rather lengthy history here. On remand from

Sistrunk I, the District Court adopted the report and recommendation of the Magistrate

Judge, which found that (1) Sistrunk’s claim of prosecutorial misconduct was limited to

only those twelve statements he presented to the Pennsylvania Supreme Court, and (2)

none of those statements, nor their cumulative effect, rendered Sistrunk’s trial unfair or

denied him due process. 2 Sistrunk challenges both of these conclusions.

                                             A.

              The Magistrate Judge was correct in concluding that Sistrunk was limited to

arguing the impropriety of only those twelve statements he presented to the Pennsylvania



2.       The M agistrate Jud ge actually filed two reports, the first addressing the m erits
of Sistrunk’s Petition and the second addressing the effect of Wenger v. Frank, 266
F.3d 218 (3d C ir. 2001).

                                              3
Supreme Court. In Sistrunk I, this Court stated, “We agree with the Commonwealth that

Sistrunk’s general allegations [of prosecutorial misconduct throughout the trial] are

insufficient to have put before the [Pennsylvania] Supreme Court any statements other

than those from the prosecution’s closing argument quoted in the petition for allowance

of appeal.” App. at 37a. The Magistrate Judge’s report and recommendation properly

relied on this conclusion in limiting his review of Sistrunk’s petition because this

conclusion was, and is, the law of this case.

              Under the law of the case doctrine, “once an issue has been decided, parties

may not relitigate that issue in the same case.” Ogbudimkpa v. Ashcroft, 342 F.3d 207,

210 n.7 (3d Cir. 2003) (quoting Waldorf v. Shuta, 142 F.3d 601, 616 n.4 (3d Cir. 1998)).

Sistrunk admits that the decision in Sistrunk I is law of the case on this issue, but argues

that decision was clearly erroneous and works a manifest injustice. See Christianson v.

Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). Therefore, according to Sistrunk,

the law of the case doctrine does not apply. We disagree. Sistrunk I’s decision on this

point was well reasoned and has recently been reaffirmed by this Court. Moore v.

Morton, 255 F.3d 95, 103 n.7 (3d Cir. 2001) (holding that the factual predicates of a

claim of prosecutorial misconduct must be fairly presented to the state courts in order to

avoid procedural default). The District Court was correct in approving the Magistrate




                                                4
Judge’s report and recommendation that dealt only with those twelve statements that

Sistrunk presented to the Pennsylvania Supreme Court. 3

                                            B.

             The twelve statements presented by Sistrunk and addressed by the

Magistrate Judge all came from the prosecutor’s closing argument and are:

             (1)    “The presumption of innocence means just that. It is a cloak to

                    protect the truly innocent. It is not a shield behind which the guilty

                    can hide.”

             (2)    “The Commonwealth is unable to recreate, to bring the Dubrow’s

                    Furniture Store at 4th & South into this courtroom, so the

                    Commonwealth will ask you to do this. The Commonwealth will ask

                    you to . . . take yourselves on January 4, 1971, into Dubrow’s

                    Furniture Store. Walk through that door. Walk through with the

                    people who appeared before you, what was left of those people who

                    appeared before you, because Alton Barker can never appear before

                    you.”


3.        Sistrunk also briefly argues that our decision in Wenger, 266 F.3d at 218 was
incorrect and that Pennsylvania’s recent Judicial O rder 218, In re: Exhaustion of State
Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Jud.A dm in.D kt. N o. 1
(Pa. M ay 9, 2000), should apply retroactively to relieve Sistrunk of his obligation to
file for allocatur in order to exhaust his state rem edies. Under our procedure, Wenger
is binding on this Court absent en banc review of the decision. Third Circuit IOP 9.1.

                                            5
(3)   “[A]nd Alton Barker was alive and well that day and pursuing his

      livelihood under the name he received from his parents and which he

      transferred to his wife of nine years.”

(4)   “I ask you, ladies and gentlemen, that you not be fooled. You heard

      testimony in a very unusual typed [sic] of homicide case. The star

      witness in the case, if we want to talk star witnesses, is Alton Barker,

      but that star witness has got lips that are forever sealed to any of us.”

(5)   “Now Audrey DiMeo, and I am sure, Audrey DiMeo, that she goes

      to bed at night just like everybody else does and I am sure that when

      she hears a creak anywhere around her house I am sure she gets a

      little bit nervous.”

(6)   “[S]he [Audrey DiMeo] told you, Poor Mr. Wagenheim didn’t die as

      a result of Dubrow’s, thank God, he died thereafter . . .”

(7)   “[D]id [Roseann Sacchetti] tell you ‘Edward Sistrunk is the man who

      interrupted the birth of my child with a nightmare, to see his fact . . .”

(8)   “This is a professionally planned job.”

(9)   “[I]f these witnesses, if these people from Dubrow’s did such a lousy

      job, and if their testimony stunk to high heaven, why, why put on

      defense witnesses at all?”



                               6
              (10)   “Alton Barker can never tell us who fired the fatal shot in Alton

                     Barker . . .”

              (11)   “Walk toward [the defendants] just like Mr. Gurby walked toward

                     them . . . Tell [them] whether that fooled you at all. Tell both of

                     these defendants, and by your telling both of them tell Alton Barker,

                     Tell his widow here in the courtroom . . . Tell it to Alton Barker.”

              (12)   “[Defendants] take [sic] from a lady who is perfectly happy with her

                     name her husband.”

App. at 12a-13a.

              In order to show that these statements denied him due process, Sistrunk was

required to meet a very high burden. He had to show not just that the prosecutor’s

statements “were undesirable or even universally condemned” but that they “so infected

the trial with unfairness as to make the resulting conviction a denial of due process.”

Todaro v. Fulcomer, 944 F.2d 1079, 1082 (3d Cir. 1991) (citations and quotation marks

omitted). We exercise de novo review over District Court’s decision that Sistrunk failed

to meet this burden. Orban v. Vaughn, 123 F.3d 727, 729 (3d Cir. 1997).

              In his brief, Sistrunk stresses that these twelve statements must be analyzed

in conjunction with other misconduct that he alleges occurred during the trial. Based on

our analysis regarding the law of the case doctrine, we will follow Sistrunk I and review



                                             7
only those twelve statements that Sistrunk exhausted in state court. Sistrunk’s arguments

regarding these statements break down into four categories of misconduct.

              First, Sistrunk argues that statements (3) and (12), as quoted above, denied

him due process because they were intended to bias the jury against Sistrunk based on his

religion.4 We disagree for two reasons. Sistrunk admits that the issue of the Muslim

practice of changing one’s name was introduced into the trial by his co-defendant. The

record further discloses that on direct examination, at least one defense witness offered

detailed testimony about the Muslim practice of changing one’s name and that the

prosecution cross-examined this witness in an attempt to show that Sistrunk’s co-

defendant’s various aliases were not the result of this M uslim practice. Because this topic

was introduced not by the prosecution, but by Sistrunk’s co-defendant, the prosecution’s

cryptic reference to it during closing arguments did not render Sistrunk’s trial unfair.5 See

United States v. Tyler, 281 F.3d 84, 99 (3d Cir. 2002) (acknowledging that the

prosecution can properly refer to issues that were introduced by the defendant during




4.      Sistrunk briefly argues that his burden in establishing that these statem ents
violated his rights is lower because they represent a denial of his First Amendm ent
rights. Sistrunk never raised this argument in the state courts and, therefore, it is not
properly before us. Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989).

5.       Sistrunk m istakenly argues that the invited response doctrine is at issue. See
Darden v. Wainwright, 477 U.S. 168, 178-82 (1986) (explaining that a prosecutor’s
improper comm ents during summation may be acceptable if invited by improper
statements by defense counsel). W e do not rely on that doctrine because we do not
find that the prosecutor’s com menting on this area w as improper.

                                             8
trial).   The use of aliases was also an issue in this case and the prosecutor properly

addressed the Muslim practice of changing one’s name in the context of determining

whether Sistrunk’s co-defendant’s various names were a result of this practice. For these

two reasons, statements (3) and (12) did not deny Sistrunk due process.

                Second, Sistrunk argues that statement (1) rendered his trial unfair by

denying him the presumption of innocence. We agree with the M agistrate Judge that this

statement was a proper response to Sistrunk’s counsel’s statements regarding the

presumption of innocence, was a fair statement regarding the evidence the prosecution

presented to try to overcome the presumption, and that any improper aspect of the

comment was mitigated by the trial court’s subsequent jury instructions regarding the

presumption. For these reasons, statement (1) did not deny Sistrunk his right to due

process.

                Third, Sistrunk argues that statement (9) was improper because it “attacked

the very idea of presenting a defense.” Appellant’s Br. at 32. In fact, this statement was a

proper response to defense counsel’s argument that even without a defense the

prosecution’s identification evidence was so weak that the defendants should be found

not guilty. There was nothing improper about the prosecution responding to this line of

argument.

                Fourth, Sistrunk argues that statements (2), (4), (5), (6), (7), (10) and (11)

were improper because they were emotionally charged. Statements (2), (4), (6), (7), (10)

                                                9
and (11) were each directly related to evidence introduced at trial and were proper

arguments regarding that evidence. Statement (5), though not directly related to any

evidence that Audrey DiMeo actually gets nervous when she hears creaks in her house at

night, was a reasonable inference and was insufficient to render Sistrunk’s trial unfair.

              The only remaining statement, number (8) as quoted above, was not

referred to by Sistrunk in his brief. Regardless of any waiver problem this presents, that

statement was also proper because it was based on evidence supporting the inference that

this crime was planned, and was in response to defense counsel’s arguments regarding the

absence of fingerprints at the crime scene.

              After reviewing both the individual and cumulative effect of these twelve

statements, we conclude that they did not deprive Sistrunk of a fair trial6 . Therefore, we

will affirm the District Court’s order adopting the Magistrate Judge’s report and

recommendation.


_________________________




TO THE CLERK:




6.      This conclusion should not be read by the government as any type of
condonation of its actions. To the contrary, we find several of the prosecutor’s
rem arks during her closing to be the type of “undesirable or even universally
condemned” actions that, though not deprivin g Sistrunk of a fair trial, give us pause.
Todaro, 944 F.2d at 1082 (citations and quotation marks omitted).

                                              10
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