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


6-23-2006

In Re: Martin Horn
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-9017




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                                                        NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                        Nos. 04-9017 & 04-9018




                   IN RE: MARTIN HORN,
         JOSEPH MAZURKIEWICZ, and GEORGE R. WHITE,
                                          Petitioners at No. 04-9017




                       DONALD HARDCASTLE

                                   v.

       MARTIN HORN, Pennsylvania Department of Corrections;
            GEORGE R. WHITE, Superintendent of the
            State Correctional Institution at Pittsburgh;
        JOSEPH P. MAZURKIEWICZ, Superintendent of the
            State Correctional Institution at Rockview,
                                                      Appellants at No. 04-9018




             On Appeal from the United States District Court
                for the Eastern District of Pennsylvania
                   D.C. Civil Action No. 98-cv-3028
                      (Honorable John R. Padova)


Submitted on Petition for Writ of Mandamus Under Rule 21, Fed. R. App. P.
    and Appellee’s Motion to Dismiss Appeal for Lack of Jurisdiction
                               May 18, 2006
       Before: SCIRICA, Chief Judge, AMBRO and ALDISERT, Circuit Judges.

                                  (Filed June 23, 2006)


                               OPINION OF THE COURT


PER CURIAM.

       These consolidated matters involve an interlocutory appeal and a petition for a writ

of mandamus brought by the Commonwealth of Pennsylvania in a capital habeas corpus

proceeding. Specifically, the Commonwealth seeks to challenge a discovery order issued

by the District Court at the request of Donald Hardcastle, who seeks habeas corpus relief

on a claim of racial discrimination in jury selection under Batson v. Kentucky, 476 U.S.

79 (1986). After the Commonwealth attempted to invoke this Court’s appellate and

mandamus jurisdiction, the District Court vacated the challenged discovery order and

entered a new order in complete accord with the parties’ agreement.

       For the following reasons, we agree with Hardcastle that we lack appellate

jurisdiction to review the challenged discovery order and will grant his motion to dismiss

the Commonwealth’s appeal. We also agree with Hardcastle that the Commonwealth’s

mandamus petition is moot and will deny it as such.

I.     Background

       In 1982, a Philadelphia jury found Donald Hardcastle guilty of two counts of first

degree murder. The trial court imposed a sentence of death. The Pennsylvania Supreme


                                            2
Court affirmed Hardcastle’s conviction and sentence, Commonwealth v. Hardcastle, 546

A.2d 1101 (Pa. 1988), and subsequently affirmed the denial of state post-conviction

relief, Commonwealth v. Hardcastle, 701 A.2d 541 (Pa. 1998).

       On federal habeas corpus review, the District Court granted relief on Hardcastle’s

Batson claim alleging that Judith Rubino, the assistant district attorney who conducted

jury selection at his trial, exercised her peremptory strikes in a racially discriminatory

manner in violation of the Equal Protection Clause. On appeal, we agreed with the

District Court that the Pennsylvania Supreme Court’s rejection of Hardcastle’s Batson

claim was objectively unreasonable based on the current record. Hardcastle v. Horn, 368

F.3d 246, 250 (3d Cir. 2004), cert. denied, 543 U.S. 1081 (2005). We concluded,

however, that the Commonwealth had been denied an opportunity in the District Court to

present evidence in support of its position, and remanded for a hearing and reexamination

of Hardcastle’s Batson claim. Id.

       On remand, Hardcastle moved for discovery of “any and all notes generated by

[Rubino] regarding the jury selection proceedings in [Hardcastle’s] trial that are in [the

Commonwealth’s] actual or constructive possession or control.” (Discovery Mot. ¶ 3.a.)

Hardcastle also moved to discover Rubino’s jury selection notes in other homicide

prosecutions and various documents regarding the District Attorney’s jury selection

policies and practices while Rubino served as a prosecutor, and to take Rubino’s

deposition prior to the hearing. In response, the Commonwealth expressly agreed to



                                              3
provide Rubino’s notes from jury selection in Hardcastle’s case, but objected to the

remaining requests as overbroad, burdensome, and/or not relevant.

       By order entered August 18, 2004, the District Court granted Hardcastle’s

discovery motion over the Commonwealth’s objections. On August 27, 2004, the

Commonwealth challenged the discovery order by filing a petition for writ of mandamus

(No. 04-9017) and a notice of appeal (No. 04-9018). By order entered September 10,

2004, the District Court vacated its prior discovery order entirely, then granted discovery

only of Rubino’s notes from jury selection in Hardcastle’s case, i.e., the portion of

Hardcastle’s request to which the Commonwealth expressly agreed. The District Court

has conducted no further proceedings.

       After consolidating the Commonwealth’s appeal and mandamus petition, the Clerk

instructed the parties to show cause why the cases should not be dismissed as moot in

light of the District Court’s September 10, 2004 order. We have received the parties’

responses reflecting the Commonwealth’s belief that the cases are not moot. Hardcastle

in turn moves to dismiss the cases for lack of jurisdiction, or in the alternative for an

expedited briefing schedule.

II.    Discussion

       From a practical perspective, the resolution of the current matters is simple

because nothing remains for us to adjudicate. The Commonwealth agreed, and still




                                              4
agrees,1 to produce Rubino’s notes from jury selection in Hardcastle’s case. The District

Court’s second discovery order of September 10, 2004, requires nothing more. We could

not provide the Commonwealth any relief beyond that which the District Court has

already fashioned. For all practical purposes, then, these matters are moot. See Donovan

ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir. 2003) (citing

County of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001) (“The

ability to grant effective relief lies at the heart of the mootness doctrine.”)).

       Notwithstanding, the Commonwealth maintains that these matters are not moot.

The Commonwealth argues that the District Court’s first discovery order of August 18,

2004, is still valid, and that its second discovery order is a nullity. Invoking the general

notion that filing a notice of appeal divests a district court of jurisdiction, see Venen v.

Sweet, 758 F.2d 117, 120 (3d Cir. 1985), the Commonwealth contends that the District

Court lacked the authority to vacate its first discovery order.

       Before addressing the Commonwealth’s argument, we pause to question why the

Commonwealth invokes this general rule in an attempt to invalidate the second discovery

order. After all, the second discovery order embodies the precise terms to which the

Commonwealth agreed. The Commonwealth could have avoided considerable expense

and delay if it had voluntarily withdrawn its appeal and mandamus petition as soon as the


   1
     In response to the Clerk’s suggestion of mootness, the Commonwealth reiterates that
it “does not object to pre-hearing discovery of the prosecutory’s jury selection notes in
this case.” (Commonwealth’s Response at n.1.)

                                                5
District Court vacated the challenged order. The Commonwealth’s response indicates a

different strategy, however:

       This issue has also arisen with ever-increasing frequency in other cases.
       Hardcastle’s institutional counsel, who represent virtually every death-
       sentenced Pennsylvania prisoner in federal court, now routinely ask for
       similar discovery in support of Batson claims that were rejected, or not
       litigated, in the state courts. . . . The Commonwealth has a strong interest in
       having this Court set guidelines for such requests – a decision by this Court
       will save taxpayer money and conserve the Commonwealth’s limited
       resources, while allowing district judges to focus on other issues.

(Commonwealth’s Mootness Response at 5-6 (emphasis added).) This response suggests

an invitation for us to issue an advisory opinion on the scope of discovery for Batson

claims. Because we are not in the business of issuing advisory opinions, we decline the

Commonwealth’s invitation. See Magaziner v. Montemuro, 468 F.2d 782, 784 (3d Cir.

1972) (quoting Wright, Federal Courts, § 12 at 37) (“The oldest and most consistent

thread in the federal law of justiciability is that the federal courts will not give advisory

opinions.”).

       Whatever its strategy, the Commonwealth is correct that filing a notice of appeal

generally divests a district court of jurisdiction. The Commonwealth neglects to explain,

however, that a district court does not lose jurisdiction when a notice of appeal is filed

from an order or judgment which is not appealable. See Venen, 758 F.2d at 121. An

appeal from such an order is “a nullity.” Id. Otherwise, a litigant could temporarily

“deprive a district court of jurisdiction at any non-critical or critical juncture including




                                               6
trial itself, thus bringing proceedings in the district court to a standstill while a non-

appealable ruling wends its way through the appellate process.” Id.

       For purposes of determining our appellate jurisdiction, then, the question is

whether the District Court’s August 18, 2004 discovery order is an immediately

appealable order. If not, we lack jurisdiction and must dismiss the appeal. While a

discovery order is not a final order subject to appeal under 28 U.S.C. § 1291, it may in

narrow circumstances be appealable under the collateral order doctrine. See ADAPT of

Phila. v. Phila. Hous. Auth., 417 F.3d 390, 394 (3d Cir. 2005). The collateral order

doctrine provides that “[a]n appeal of a nonfinal order will lie if (1) the order from which

the appellant appeals conclusively determines the disputed question; (2) the order resolves

an important issue that is completely separate from the merits of the dispute; and (3) the

order is effectively unreviewable on appeal from a final judgment.” Bacher v. Allstate

Ins. Co., 211 F.3d 52, 53 (3d Cir. 2000).

       This Court’s jurisprudence establishes that the requirements of the collateral order

doctrine are met “when a party appeals a discovery order involving information which the

party claims to be privileged or to constitute a trade secret.” Id. These privileges include

the attorney-client privilege and the work product privilege. In re Ford Motor Co., 110

F.3d 954, 962-63 (3d Cir. 1997). In its petition for mandamus relief filed in this Court,

the Commonwealth posits “a privilege problem.” According to the Commonwealth,




                                               7
Rubino’s jury selection notes are “encompassed by the ‘work product privilege’” and thus

not subject to discovery.

       Hardcastle counters that the Commonwealth did not claim the work product

privilege or any other privilege in its response to his discovery motion. In that motion,

Hardcastle requested discovery of Rubino’s jury selection notes in his trial, her jury

selection notes in all other homicide trials in which she conducted jury selection, and

documents regarding jury selection policies and practices by the Philadelphia District

Attorney’s Office. He also asked to depose Rubino prior to any evidentiary hearing.

Nothing in the Commonwealth’s response suggests that any item or request is protected

from discovery by the work product privilege or any other privilege. For this reason,

Hardcastle believes that the Commonwealth did not properly claim the work product

privilege.

       Hardcastle’s point is well taken. Presumably, if the Commonwealth had expressly

claimed the work product privilege, the District Court would have addressed the

applicability of the privilege. If so, the District Court could have examined each of the

requested discovery items and decided which, if any, were discoverable. If the

Commonwealth had then filed an interlocutory appeal from such a decision, we could

readily determine our appellate jurisdiction under the collateral order doctrine. We could

also readily determine whether the Commonwealth would be entitled to any relief from

the discovery order.



                                             8
       In response, the Commonwealth points to a reference in the District Court record

as proof that it invoked the work product privilege. A thorough review of the record

confirms that when Hardcastle filed his amended habeas petition in November 1999, he

indicated that he would seek discovery similar to that requested in his discovery motion.

(Amended Pet. at 80 n.42; 81-82 n.43; 82-83 n.44.) In its answer to the amended petition,

the Commonwealth asserted that any discovery requests were premature and without

merit. (Answer at 133.) In his reply, Hardcastle reiterated his discovery requests. (Reply

at 120 n.100; 121 n.102.) In its surreply, the Commonwealth challenged any discovery

requests as irrelevant, non-existent, and premature because no formal discovery motion

had been filed. In a footnote, the Commonwealth stated that no discovery should be

granted because the Batson claim is meritless and Rubino’s notes are protected as

attorney work product. (Surreply at 29 n.9.)

       A brief examination of discovery procedures in habeas proceedings demonstrates

that the Commonwealth’s unexplained reference to the work product privilege – tucked in

a footnote in a lengthy document filed years before any formal discovery request was

made – is insufficient to claim the privilege. In habeas proceedings in the district courts,

the initial disclosure rules regarding discovery do not apply. See Fed. R. Civ. P.

26(a)(1)(E)(ii). Rather, the district judge “may, for good cause, authorize a party to

conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of

discovery.” Rule 6(a) of the Rules Governing Section 2254 Cases; see Mayberry v.



                                               9
Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (stating that prior court approval for discovery

is required under Rule 6(a)). A party seeking discovery in a habeas proceeding must

make specific requests and must provide reasons for the requests. See Rule 6(b).

       Under the Federal Rules of Civil Procedure, as referenced in Rule 6(a), a party

claiming that discovery material is privileged as work product “shall make the claim

expressly and shall describe the nature” of the requested material. Fed. R. Civ. P.

26(b)(5). The party requesting such material bears the burden of showing that he “has

substantial need of the materials” and “is unable without undue hardship to obtain the

substantial equivalent of the materials by other means.” Fed. R. Civ. P. 26(b)(3). The

district court, in ordering discovery of privileged materials, “shall protect against

disclosure of the mental impressions, conclusions, opinions, or legal theories” of an

attorney concerning the litigation. Id.

       Here, in his discovery motion, Hardcastle made specific discovery requests, as

described previously; he also provided reasons for those requests. In its sixteen-page

response, the Commonwealth did not suggest that any document is protected from

discovery by the work product privilege, much less “claim it expressly,” as Rule 26(b)(5)

requires. Because the Commonwealth did not properly claim the privilege, the District

Court did not examine any of the documents to decide which portions (if any) were




                                              10
protected from discovery as work product.2 Because the Commonwealth did not

sufficiently claim the privilege, the District Court’s August 18, 2004 discovery order is

not immediately appealable under the collateral order doctrine. In the absence of an

immediately appealable discovery order, we lack appellate jurisdiction. Accordingly, we

will grant Hardcastle’s motion and will dismiss the Commonwealth’s appeal.

       The remaining issue of the Commonwealth’s mandamus petition is easily resolved.

In the absence of an effective appeal, the District Court retained jurisdiction on

September 10, 2004, to vacate its August 18, 2004 order and to issue a new discovery

order. Thus, the District Court’s second discovery order is valid. The order requires

nothing more from the Commonwealth than that to which it expressly agreed. Because

the District Court has already granted that which the Commonwealth requests, the

mandamus petition is moot. We will grant Hardcastle’s request to deny it as such.

III.   Conclusion

       For these reasons, we will grant Hardcastle’s motion to dismiss the

Commonwealth’s appeal for lack of jurisdiction. We will deny as moot the

Commonwealth’s petition for a writ of mandamus.




   2
    We do not decide whether the Commonwealth waived the privilege by failing to
claim it properly in the District Court. Although the parties have agreed to the scope of
discovery, it is conceivable that Hardcastle will later request further discovery to prove
his Batson claim. If so, and if the Commonwealth claims the privilege, the District Court
can decide in the first instance whether the Commonwealth waived the privilege.

                                             11
