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


5-21-2002

Marra v. Larkins
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2737




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Recommended Citation
"Marra v. Larkins" (2002). 2002 Decisions. Paper 289.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/289


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                                                   NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                            No. 00-2737
                             __________

                         RICHARD J. MARRA,
                                       Appellant

                                  v.

           DAVID LARKINS, Superintendent, Dallas SCI;
         DISTRICT ATTORNEY FOR THE PHILADELPHIA COUNTY;
       THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                   D.C. Civil No. 96-cv-02375
         District Judge: The Honorable Louis H. Pollak
                           __________

                    Argued February 11, 2002
                           __________

       Before: MANSMANN, McKEE, and BARRY, Circuit Judges

                 (Opinion Filed: May 21,    2002)
                          ____________




Peter Goldberger, Esq. (Argued)
Law Office of Peter Goldberger
50 Rittenhouse Place
Admore, PA 19003-2276

Attorney for Appellant


David C. Glebe, Esq. (Argued)
Thomas W. Dolgenos, Esq.
Office of the District Attorney
1421 Arch Street
Philadelphia, PA 19102

Attorneys for Appellees

                            ____________

                              OPINION
                            ____________


BARRY, Circuit Judge
     This case involves a 28 U.S.C. 2254 habeas corpus petition filed by Richard
Marra, who was convicted of first-degree murder on September 28, 1987 and sentenced
to life imprisonment. The District Court denied Marra’s petition on August 15, 2000.
Marra v. Larkins, 111 F. Supp. 2d 575 (E.D. Pa. 2000). We have jurisdiction pursuant to
28 U.S.C. 1291 & 2253, and will affirm.
                               I.
     The factual background of this case is fairly straightforward. In the early hours of
January 13, 1986, 24-year old Michael Ragno was fatally shot in the head at point blank
range on the second floor of Flanigan’s, a Philadelphia night club. It is undisputed that
Marra argued with and threatened Ragno at the club entrance because Ragno came to the
aid of a friend who said "hi" to Marra’s girlfriend.
     Approximately an hour after the confrontation, Ragno was murdered. While the
precise circumstances of the murder are hotly contested, an eye witness testified that
three men backed Ragno up against a wall on the second floor of Flanigan’s, and that the
man in the middle of these three antagonists shot and killed Ragno. Another eye witness
identified Marra as the man in the middle of a group of three at that location immediately
after the gun shot sounded. Following the shooting, Marra was seen fleeing the club
while concealing a dark object in or about his waistband. He was then seen getting into
his car and leaving the scene. Just hours later, the police found Marra’s car deliberately
destroyed by fire.
     Marra was tried along with two co-defendants, Jeffrey M. DiOrio and Louis A.
Deangelo, Jr., before a Philadelphia County Court of Common Pleas jury. On September
29, 1987, the jury convicted Marra of first-degree murder and a related weapons charge,
but acquitted his co-defendants. Marra was sentenced to life imprisonment.
     On March 22, 1996, after pursuing his state court appeals, Marra filed this habeas
petition. The Magistrate Judge recommended denial of the petition, apparently without
having had access to the trial record because it had been mislaid. The District Court
denied the petition, but subsequently vacated its denial of Marra’s motion for
reconsideration when the trial record was produced. The Magistrate Judge recommended
denial of the renewed motion for reconsideration, and the District Court adopted that
recommendation in an Opinion and Order filed August 6, 2000.
     On appeal, Marra contends that (a) the evidence presented was insufficient to
prove guilt beyond a reasonable doubt, (b) the trial court denied him due process by
reading back only a portion of testimony in response to a note submitted by the jury
during deliberations, and (c) the District Court erred in finding his ineffective assistance
of counsel claim because of a conflict of interest to be procedurally barred.
                              II.
     Before turning to the merits, we note that this habeas petition was filed before the
effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA").
Accordingly, the AEDPA is inapplicable. Where, as here, the District Court based its
decision on the record of the state court proceedings, our review of that decision is
plenary. Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997); Johnson v. Rosemeyer, 117
F.3d 104, 109 (3d Cir. 1997); Jackson v. Byrd, 105 F.3d 145, 147 (3d Cir. 1997).
     A. Sufficiency of the Evidence
     It is well-settled that a sufficiency of the evidence challenge requires us to view
the evidence and all reasonable inferences therefrom in the light most favorable to the
prosecution and determine whether any rational jury could have found guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson, 105 F.3d at
148. Applying this standard, the District Court concluded that the "evidence was
sufficient even if only by a narrow margin." Marra, 111 F. Supp. 2d at 578.
     Viewing the evidence in the light most favorable to the prosecution, a reasonable
jury could have found the following:
     Marra and Ragno had a brief altercation at the club entrance when Marra accosted
Ragno’s friend for saying "hi" to Marra’s girlfriend. During this exchange, Marra
implicitly if not explicitly threatened Ragno with physical harm when he said "you don’t
know who I am," "you don’t know who you are f[ ]king with," and "you’ll see who I
am." Marra then ran from the club, but later returned.
     Approximately an hour later, Ragno and Susan Murray were conversing on the
second floor of the club. Marra was also on the second floor at this point. Ragno
excused himself to go to the men’s room when he was confronted by three men who
proceeded to back him towards a wall. Murray witnessed the man in the middle of this
group shoot and kill Ragno at point blank range, but she could not see the faces of the
three men as their backs were to her. There were no other threesomes near Ragno at this
time. Murray turned to alert the bartender, and consequently did not see what the killer
did immediately thereafter. Seconds later, however, Karen Antonelli turned in the
direction of the gun shot and saw Marra standing between his two co-defendants.
Murray’s and Antonelli’s testimony, coupled with the evidence of the prior confrontation
and threats and the testimony of doorman Bernard Mulholland and patron Tina Marie
Bianchi that Marra fled the scene, dropped a black object during his flight, and then
attempted to conceal that object in his waistband, permitted the jury to find that Marra
shot Ragno.
     Marra attempts to debunk this evidence by pointing to purported inconsistencies
in the witnesses’s testimony. Before turning to Marra’s specific contentions, we note
that his argument generally suffers from a failure to construe the evidence in the light
most favorable to the prosecution. Instead, Marra couches the evidence in the light most
favorable to him, again and again suggesting what inferences the jury should have
drawn.
     Marra’s principal contention is that Murray’s and Antonelli’s versions of the facts
are inconsistent because Murray said the killers had their backs to her, while Antonelli,
sitting approximately in the same area as Murray, turned and saw Marra and his co-
defendants facing her. This contention is unpersuasive. Simply put, in the time it took
Antonelli to turn in the direction of the gun shot, Marra could well have turned around
preparatory to exiting the club. The jury could, and presumably did, draw that inference.

     Next, Marra places great weight on Antonelli’s failure to see a body near him or to
see a gun. As the government suggests, however, the jury could reasonably have inferred
that Ragno’s felled body was behind the three defendants. As for the gun, the jury could
reasonably have inferred that it was at Marra’s side and overlooked while Antonelli
focused on his face, or was concealed in or obscured by Marra’s clothing.
     Marra also contends that Mulholland’s and Bianchi’s testimony is fatally
inconsistent because Bianchi saw a man running down the stairs from the second floor,
saw him drop a black object, pick it up, and place it in his waistband, while Mulholland
did not observe this fumbling when he saw Marra running down the stairs. Again, this
contention is unavailing because it views the evidence in the light most favorable to
Marra. The jury could well have inferred that Mulholland and Bianchi observed Marra
at different points as he descended the stairs, or could simply have given greater weight
to Mulholland’s testimony because he was able to positively identify Marra. It is
undisputed, we note, that both witnesses thought Marra was concealing some object on
his person.
     At the end of the day, Marra simply alleges certain inconsistencies which the jury
resolved in the prosecution’s favor. The weakness in the prosecution’s case was that no
single witness could identify Marra as the shooter. Given the sequence of events,
however, the jury could readily have found that Murray’s and Antonelli’s testimony
provided such an identification. Accordingly, the evidence was sufficient to support the
jury’s verdict.
     B. Grand Jury Transcript
     Marra next contends that his due process rights to a fair trial were violated
because the trial court, in response to a jury note asking for specific grand jury testimony
on which Antonelli had been questioned at trial, did not also reread her trial testimony
concerning that grand jury testimony. Marra opines that the fairness of his trial "was
destroyed" by the trial judge’s response to the jury’s note. Marra is wrong.
     A trial court, of course, has discretion in deciding how to respond to a jury note.
To prevail on his due process claim, Marra must show that the court’s response violated
the "fundamental fairness" essential to justice.   Donnelly v. DeChristoforo, 416 U.S.
637, 642 (1974).
     The disputed testimony centered on whether or not Antonelli had testified before
the grand jury that she had seen a body behind Marra at the time of the shooting. On
cross-examination during trial, Antonelli testified that she had not seen a body behind the
three defendants. The prosecution then tried to establish that Antonelli had, in fact, seen
a body by reading her the following questions and answers from her grand jury
testimony:
          Q: When you turned you saw the three individuals standing
          in front of the person that was shot before the shot was fired?

          A: No, after.

          Q: After?

          A: Yes.

     Joint App. 386:14-19 (emphasis added). The prosecution then asked Antonelli if she had
testified before the grand jury that she "saw the three individuals standing in front of the
person who was shot after the shot was fired?" Joint App. 387:3-5. Antonelli
responded: "I never said I saw the body." Joint App. 387:6. Both sides then questioned
Antonelli at some length about the meaning of her grand jury testimony.
          Shortly after commencing deliberations, the jury submitted a note requesting,
among other things, "the testimony of Karen Antonelli." The trial judge explained that
he would not give them anything in writing and that Antonelli’s testimony had not yet
been transcribed. He offered, at the behest of Marra’s counsel, to read any specific
portion of Antonelli’s testimony the jury desired. The jury promptly returned with a note
stating: "Could we please see the grand jury testimony of Karen Antonelli concerning
the three people she saw before the shoot after the shoot?" A great debate as to the
meaning of this note and how the court should respond followed, a debate which covered
twenty-four pages of transcript.
          The trial judge concluded apparently because of the jury’s use of the words
"before" and "after" the "shoot" that the jury wanted to hear the Q&A quoted above
and read only those lines to the jury. He also offered to read additional testimony if the
jury so desired which, as it turned out, it did not.
          Marra contends that the trial court’s "overly literal response to the jury’s questio
denied the jury needed information. He opines that if "the jury understood the limited
significance of Ms. Antonelli’s response to the prosecutor’s leading and compound
question before the grand jury, and recalled her firm adherence to her direct testimony
under cross-examination at trial, then a different outcome was highly likely."
Appellant’s Br. at 28.
          Notwithstanding Marra’s prognostication of a different outcome, he has unearthed
no fundamental unfairness in the trial court’s response to the jury’s request. What was
read to the jury was precisely what it had requested. In addition, what was read had the
benefit of omitting both side’s interpretation of the meaning of the Q and A elicited
during the examination of Antonelli at trial which presumably the jury recalled because it
did not request a reread of that testimony. We simply do not detect any fundamental
unfairness here.
          C. Conflict of Interest
          Marra’s final contention, i.e. that his trial counsel, Robert Simone, was ineffectiv
because he operated under a conflict of interest, is the most intriguing. Unfortunately for
Marra, however, it is also procedurally defaulted.
          At the time of trial, Simone was also representing, and allegedly engaged in a
criminal RICO conspiracy with, mob boss Nicodemo Scarfo. Simone was subsequently
convicted and disbarred on consent for, as the District Court termed it, this "checkered
history." Phillip Narducci the Flanigan’s patron sitting next to Antonelli at the time of
Ragno’s demise allegedly worked for Scarfo in less than legal endeavors and was
Scarfo’s co-defendant in the case in which Simone represented Scarfo. Marra suggests
that Narducci was the other "prime suspect" in the Ragno murder, and that Simone did
not press this angle of the case enough out of deference to Scarfo and Narducci.
          After Simone handled Marra’s direct appeal to the Superior Court, Marra,
represented by new counsel, raised his conflict of interest claim for the first time before
the Pennsylvania Supreme Court in his petition for allocatur. The petition was denied
without opinion in December 1989. Marra then re-raised the issue before the trial court
in his March 1991 Post Conviction Relief Act ("PCRA") petition, but did not present
the issue in his subsequent appeal from the denial of his petition in June 1993 to the
Superior Court or to the Pennsylvania Supreme Court in his allocatur petition.
          The District Court adopted the Magistrate Judge’s initial Report and
Recommendation which, as relevant here, determined that Marra’s conflict of interest
claim was procedurally barred because he failed to appeal the issue to the Superior Court
or to the Pennsylvania Supreme Court and thereby denied the state courts a fair
opportunity to address the issue. It subsequently adopted the second Report and
Recommendation as well, finding that, as the Magistrate Judge determined, the claim was
defaulted and could not be resuscitated in the habeas proceeding.
          It is well-settled, of course, that a prisoner must first present all federal claims
state court before a district court may reach those claims on federal habeas corpus
review. 28 U.S.C. 2254(b) & (c); O’Sullivan v. Boerckel, 526 U.S. 838, 843 (1999)
("[T]he state prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition."); Caswell v.
Ryan, 953 F.2d 853, 857 (3d Cir. 1992). To comply with this requirement, a petitioner is
generally required to give the state courts a "full and fair opportunity" to address the
merits. O’Sullivan, 526 U.S. at 844; Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
"Full and fair opportunity" means presenting the issue in a manner that puts the state
court on notice that the claim is being pursued so that the state court has a chance to
resolve that claim, i.e., some articulation of the sum and substance of the claim is
required, not merely a whisper of constitutional impropriety. As the Supreme Court
stated in Keeney:
          Exhaustion means more than notice. In requiring exhaustion
          of a federal claim in state court, Congress surely meant that
          exhaustion be serious and meaningful. . . .   Comity concerns
          dictate that the requirement of exhaustion is not satisfied by
          the mere statement of a federal claim in state court. Just as
          the State must afford the petitioner a full and fair hearing on
          his federal claim, so must petitioner afford the State a full and
          fair opportunity to address and resolve the claim on the
          merits.

     Id.; see also Anderson v. Harless, 459 U.S. 4, 6 (1982) ("It is not enough that all the f
necessary to support the federal claim were before the state courts. . . . In addition, the
habeas petitioner must have ’fairly presented’ to the state courts the ’substance’ of his
federal habeas corpus claim.") (citations omitted).
          Procedural default also occurs where a petitioner failed to exhaust state remedies
and the court to which he would have been permitted to present his claims would now
find such claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n.*
(1990); Whitney v. Horn, 280 F.3d 240, 252 (3d Cir. 2002); Wenger v. Frank, 266 F.3d
218, 223-24 (3d Cir. 2001), cert. denied, 122 S. Ct. 1364 (2002); McCandless, 172 F.3d
at 261; Caswell, 953 F.2d at 857. To overcome procedural default in these
circumstances, a petitioner must show either cause for the default and actual prejudice as
a result of the alleged error or a fundamental miscarriage of justice if the claim is not
considered. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 750;
McCandless, 172 F.3d at 261; Caswell, 953 F.2d at 861. The District Court held that
Marra’s conflict of interest claim was procedurally defaulted because he failed to pursue
that claim before the Superior Court in appealing his PCRA petition, and he otherwise
failed to carry his burden of showing "cause" and "prejudice" or a "fundamental
miscarriage of justice."
          On appeal, Marra does not dispute that he cannot show cause and prejudice or a
fundamental miscarriage of justice or that his claim, if not fairly presented to the
Pennsylvania courts, would now be procedurally barred. He argues, however, that there
is no bar to federal habeas review for two reasons. First, he asserts that his conflict of
interest claim was preserved because it was actually presented, albeit obscurely, in his
appeal to the Superior Court from the trial court’s denial of PCRA relief, although he
concedes that it was not "mentioned in words or substance" in his subsequent petition for
allocatur to the Supreme Court. Appellant’s Br. at 32 n.19. Second, he claims that, in
any event, he did not need to pursue his conflict of interest claim in the appeals from the
PCRA proceeding because the claim was raised in his petition for allocatur to the
Supreme Court on direct appeal, which thereby gave the highest court in the state a
chance to address the claim. We will address these arguments in turn.
           Marra’s contention that he actually presented his conflict of interest claim to the
Superior Court is belied by the record. The crux of Marra’s argument is that in the
course of arguing to the Superior Court that counsel was ineffective for other reasons, he
mentioned, albeit in one paragraph near the end of his fifty page brief, Simone’s
relationship to and legal representation of Narducci and cited two lines from Simone’s
testimony at the PCRA hearing as to whether he was wearing "two hats" during the trial.
Appellant’s Br. at 32. In other words, Marra seems to contend that raising some
ineffective assistance of counsel claims is sufficient to preserve all putative ineffective
assistance of counsel claims, provided that some factual clues for such potential claims
are referenced somewhere in the state court briefs.
           The difficulty with Marra’s argument is that merely alluding to facts that might
constitute a separate ineffective assistance claim on conflict grounds is not enough to
fairly present that claim, especially when the conflict claim was expressly presented
before the PCRA court and then was not listed on appeal as an issue. In effect, Marra
punted on his conflict of interest claim on appeal, leaving the Superior Court with no
reason to perceive, much less to pursue, that issue. Indeed, the thrust of Marra’s appeal
to the Superior Court was a typical ineffective assistance of counsel claim based on
alleged missteps at trial, rather than any challenge based on a conflict of interest.
Accordingly, Marra failed to fairly present the substance of his conflict of interest claim
to the Superior Court or to the State Supreme Court on the subsequent petition for
allocatur and that claim is now procedurally barred under Pennsylvania law.
           Marra’s contention that his petition for allocatur on direct appeal to the
Pennsylvania Supreme Court was itself a fair presentation is also unpersuasive. Marra
notes that Pennsylvania law required him to raise his ineffective assistance counsel claim
at the earliest appropriate opportunity after Simone’s representation ended here, on
direct appeal to the Pennsylvania Supreme Court to avoid waiver of that claim.
Commonwealth v. Green, 709 A.2d 382, 384 (Pa. 1998); Commonwealth v. Hubbard,
372 A.2d 687, 695 (Pa. 1977). Accordingly, the argument goes, because he was
required to and did present the issue on direct appeal in his petition for allocatur, he "by
definition" fairly presented his conflict of interest issue to the state’s highest court, and
required to do no more for purposes of 28 U.S.C. 2254.
           Marra is mistaken because he misconceives the meaning of "full and fair
presentation" and overlooks the role of the PCRA proceeding within Pennsylvania
practice. As the United States Supreme Court recently explained, the full and fair
presentation doctrine requires petitioners to "give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process." O’Sullivan, 526 U.S. at 845 (emphasis added);
Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) ("All claims that a petitioner in state
custody attempts to present to a federal court for habeas corpus review must have been
fairly presented to each level of the state courts."), cert. denied, 531 U.S. 1082 (2001);
see also Castille v. Peoples, 489 U.S. 346, 349-51 (1989). Under this teaching, the state
appellate courts must reach the merits of the federal claim at some point, after which, in
Pennsylvania, the state Supreme Court’s denial of discretionary review can be sufficient
to preserve the federal claim (provided that the claim was presented in the allocatur
petition).
           Here, the Superior Court on appeal from the denial of the PCRA petition was not
given a fair shot at petitioner’s conflict of interest claim and the issue was not presented
in the subsequent petition to the Supreme Court. Marra’s presentation of his conflict of
interest claim to the Supreme Court on direct appeal was not itself a "full and fair"
presentation because, at that point, Pennsylvania’s PCRA procedure remained available
to him and, in fact, later developed the record in the form of Simone’s
testimony upon which his conflict of interest claim now heavily depends. Thus, the
claim Marra pursues here on appeal is different (because of Simone’s intervening
testimony) than the claim briefed to the state Supreme Court on direct appeal. Castille,
489 U.S. at 349-51 (holding that mere presentation of claim to Pennsylvania Supreme
Court, without recourse to collateral review, in a petition for allocatur was insufficient to
satisfy habeas exhaustion requirements); Evans, 959 F.2d at 1230 ("A claim is not
deemed exhausted if it is raised for the first time in the state’s highest court on
discretionary review."). Indeed, in the typical case in which the Pennsylvania Supreme
Court denies a petition for allocatur on direct appeal, a prisoner’s recourse is to initiate a
PCRA proceeding because the denial of allocatur is not itself a decision on the merits.
Commonwealth v. Davis, 683 A.2d 873 (Pa. 1996).
          Parenthetically, Marra’s contention that his exhaustion responsibilities were
complete upon filing his allocatur petition on direct appeal, taken to its logical extreme,
would mean that he was not obligated to initiate a PCRA proceeding prior to filing his
habeas corpus petition. Such a contention is untenable where the evidence underlying
the conflict of interest claim had, at that time, never been presented to a state court and
no appellate court had reached the merits of his claim, i.e., this is not a case in which it
would have been futile or repetitive to insist that Marra pursue collateral relief in the
state courts. Compare Castille, 489 U.S. at 350 (noting "that once the state courts have
ruled upon a claim, it is not necessary for a petitioner" to seek collateral relief based on
the same evidence and issues already decided on direct appeal) (emphasis added).
          At the end of the day, it can hardly be said that the Pennsylvania courts were
"fairly presented" with a "full opportunity" to assess Marra’s conflict of interest claim
where the Superior Court was never explicitly presented with the claim and where the
facts upon which the claim primarily relies were developed in a PCRA hearing held more
than two years after Marra’s direct appeal to the Supreme Court. Marra has simply not
pursued a complete round of appellate review on his conflict claim and, accordingly, that
claim is procedurally barred.
                              III.
          For all the foregoing reasons, we will affirm the order of the District Court
denying the petition for habeas corpus.

     TO THE CLERK OF THE COURT:
          Kindly file the foregoing Opinion.
                              /s/ Maryanne Trump Barry
                              Circuit Judge
