WASHINGTON v. BEARD et al

Filing 59

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 07/06/2017. 07/06/2017 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES WASHINGTON,
Petitioner,
v.
JEFFREY BEARD, et al.,
Respondents.

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CIVIL ACTION
NO. 10-2869

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 6, 2017

The present case raises the issue of whether a
convicted state prisoner who is granted a conditional writ of
habeas corpus by a federal court ordering the state to “release
or retry” the prisoner within a specified period of time is
entitled to be unconditionally released from state custody - and
never retried on the charges underlying the vacated conviction in the event that the state does not retry him within the time
period specified in the conditional writ.1

1

Petitioner contends that, since the Commonwealth has
not tried him within the 120 days specified in the conditional
writ issued by this Court, he is entitled to immediate release
and a bar on any subsequent prosecution on the same charges. In
response, the Commonwealth argues that, while Petitioner is
entitled to release from the judgment which the federal court
found to have been unconstitutionally obtained, the Commonwealth

Petitioner James Washington (“Petitioner”) filed this
action on June 14, 2010, seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 with respect to his conviction of
two counts of second-degree murder, two counts of robbery, and
one count of criminal conspiracy.2

On June 7, 2012, the Court

granted Petitioner’s habeas petition and issued a conditional
writ of habeas corpus.

Following the Commonwealth of

Pennsylvania’s subsequent appeal, the United States Court of
Appeals for the Third Circuit affirmed this Court’s ruling, and
ordered the Commonwealth to release or retry Petitioner within
120 days of the entry of the Third Circuit order.

The

Commonwealth released Petitioner, and then subsequently detained
him pending retrial on the same charges.

Petitioner has now

filed a Petition for a Writ of Mandamus (“the Mandamus
Petition”), requesting that this Court order the Commonwealth to
release him unconditionally, and a subsequent Motion for
Enforcement of the Judgment (“the Enforcement Motion”), again
requesting that this Court order Petitioner’s release from state
custody and also requesting that the Court institute
may re-arrest and retry Petitioner on the same charges which
were the subject of the conditional writ.
2

The underlying facts of Petitioner’s case are set
forth more fully in the Third Circuit’s opinion affirming this
Court’s order granting Petitioner’s habeas petition. See
Washington v. Sec’y Pa. Dep’t of Corr., 801 F.3d 160, 162-63 (3d
Cir. 2015), cert. denied sub nom. Wetzel v. Washington, 136 S.
Ct. 1713 (2016).
2

disciplinary proceedings against the Commonwealth for its
conduct in this case.

For the reasons set forth below, the

Court will deny both the Mandamus Petition and the Enforcement
Motion.
I.

PROCEDURAL HISTORY
Following a trial in the Court of Common Pleas of

Philadelphia County, a jury found Petitioner guilty of two
counts of second-degree murder, two counts of robbery, and one
count of criminal conspiracy.

The Superior Court of

Pennsylvania affirmed Petitioner’s convictions, and the Supreme
Court of Pennsylvania denied Washington’s appeal.
Washington, 801 F.3d at 163.

See

Petitioner challenged his

convictions again in state court under Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541-46.
See id.

The PCRA court denied his petition, the Superior Court

affirmed, and the Pennsylvania Supreme Court denied his appeal.
See id.
On June 14, 2010, Petitioner filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254 (“the Habeas
Petition”) in this Court.

ECF No. 1.

On June 6, 2012, the

Court granted the Habeas Petition, finding that “Petitioner was
deprived of his rights under the Confrontation Clause when the
trial court allowed a witness to read from codefendant Waddy’s

3

redacted statement.”

ECF No. 19 at 7.

The Court issued a

conditional writ of habeas corpus, ordering the Commonwealth of
Pennsylvania to either release or retry Petitioner within 120
days of the entry of the order.
Commonwealth appealed.
order pending appeal.

See ECF Nos. 19 & 20.

The

On June 14, 2012, the Court stayed its
ECF No. 22.

On September 3, 2013, the Third Circuit affirmed this
Court’s order granting the Habeas Petition.

ECF No. 34.

The

Commonwealth filed a petition for writ of certiorari soon
thereafter.
Meanwhile, on January 21, 2014, Petitioner filed a
motion for release under Federal Rule of Appellate Procedure
23(c), contending that the Court’s stay of its order granting
the Habeas Petition was valid only until the Third Circuit
affirmed the Court’s June 6, 2012, order.

See ECF No. 35.

On

January 23, 2014, the Court denied Petitioner’s motion,
concluding that release pursuant to Rule 23(c) was inappropriate
and that the stay remained in effect throughout the appeals
process.

See ECF No. 36.
In an order dated April 28, 2014, the Supreme Court

granted certiorari, vacated the judgment, and remanded the case
to the Third Circuit for consideration of the applicability of
the recently decided case of White v. Woodall, 134 S. Ct. 1697

4

(2014).3
(2014).

See Wetzel v. Washington, 134 S. Ct. 1935, 1935-36
On September 23, 2015, after consideration of the

applicability of White, the Third Circuit again affirmed this
Court’s order granting the Habeas Petition.

ECF No. 39.

The

Third Circuit ordered the Commonwealth to “either release or
retry [Petitioner] within 120 days of entry of th[e] order.”
Washington, 801 F.3d at 172.

The Commonwealth again sought

certiorari, which was denied by the Supreme Court in an order
dated April 25, 2016.

See Wetzel v. Washington, 136 S. Ct. 1713

(2016).
On June 9, 2016, Petitioner filed a motion for release
from custody, as he believed the 120-day deadline for the
Commonwealth to release or retry him had elapsed.

ECF No. 40.

On June 22, 2016, the Commonwealth responded to the motion, ECF
No. 41, and on July 8, 2016, Petitioner filed a reply, ECF No.
42.

Then, on August 12, 2016, the Commonwealth filed a motion

3

In White, the Supreme Court clarified the standard for
granting a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254(d)(1), which permits a court to grant federal habeas
relief on a claim already “adjudicated on the merits in State
court” only if that adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court.” White, 134 S. Ct. at 1702 (quoting 28 U.S.C.
§ 2254(d)). The Supreme Court held that a state court’s
application of Supreme Court precedent is not “objectively
unreasonable” where the state court does not unreasonably apply
Supreme Court precedent, but instead merely refuses to extend
Supreme Court precedent to the facts of the case at issue. Id.
at 1706-07.
5

for a 180-day extension of the conditional retrial deadline.
ECF No. 43.
On September 16, 2016, the Court held a teleconference
regarding Petitioner’s motion for release.

The Court indicated

that, given that the Commonwealth had not retried Petitioner
within 120 days of the Third Circuit’s order, it would grant
Petitioner’s motion, releasing him from custody pursuant to the
Writ of Habeas Corpus.

See ECF No. 49.

The Commonwealth

requested that the Court delay its order for one week to ensure
that the state court was able to convene for a pre-trial bail
hearing, as the Commonwealth planned to retry Petitioner.4
id. at 3 n.3.

See

On September 23, 2016, the Court granted

Petitioner’s motion for release and ordered that Petitioner be
released from custody on September 29, 2016.

See id.

On October 19, 2016, Petitioner filed the instant pro
se Mandamus Petition, contending that the Commonwealth had
violated the Court’s September 23, 2016, order by continuing to
hold him in custody.

See ECF No. 51.

Petitioner stated in his

Petition that the pre-trial bail hearing scheduled for September
28, 2016, had not yet been held.

See id. at 2.

The

Commonwealth did not respond to the Mandamus Petition.

4

The Commonwealth later asked for an additional three
days, which the Court agreed to provide. See id.
6

On January 27, 2017, Petitioner sent a letter to this
Court claiming that the 120-day period specified in the Third
Circuit order had elapsed, and the Commonwealth had not yet
released or retried him, in violation of this Court’s September
23, 2016, order.

In the letter, Petitioner stated that his pre-

trial bail hearing had finally occurred on January 10, 2017.
On March 16, 2017, the Court held a teleconference
with Petitioner’s state court counsel, counsel for Respondents,
and counsel for the Commonwealth in Petitioner’s state court
proceedings.

See ECF No. 54.

During the teleconference, the

Commonwealth represented that Petitioner was indeed released
pursuant to this Court’s September 23, 2016, order, and then
subsequently detained pending retrial on the same underlying
charges.

See Conf. Tr. at 7:10-16, Mar. 16, 2017, ECF No. 56.5
Following the teleconference, Petitioner sent a pro se

request to the Court dated March 17, 2017, in which Petitioner
stated that he was not present for the teleconference and
suggested that he wished to file a motion on his own behalf.
ECF No. 55.

In response, the Court provided Petitioner with a

transcript of the teleconference and issued an order granting
5

Specifically, the Court asked, “Mr. Washington was
released by the Federal Court from his judgment of conviction
and then was rearrested, as I understand it, and is now being
held by the state on these charges. Is that your understanding
of what has happened here?” and counsel for the Commonwealth
stated, “[t]hat is absolutely correct, your Honor.” Conf. Tr.
at 7:10-16.
7

Petitioner leave to file a supplemental submission in support of
the Mandamus Petition by May 4, 2017.

See ECF No. 56.

On April 11, 2017, Petitioner filed a pro se
supplemental submission that he styled as a “Motion for
Enforcement of the Judgment by Decision of the Courts and
Request for Disciplinary and Other Proceedings Against the State
for Continuous Violations of Ministerial Duties.”

ECF No. 57.

In the submission, Petitioner again argues that the Commonwealth
violated this Court’s order by failing to release him, and
asserts that the Court should discipline the Commonwealth for
misrepresenting to the state court that this Court’s order did
not require Petitioner’s release from state custody.

Id.

The Court is now ready to rule on the Mandamus
Petition and Enforcement Motion.
II.

DISCUSSION
Federal courts have the power to issue writs of

mandamus under the All Writs Act, 28 U.S.C. § 1651(a), which
provides that “[t]he Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.”

In re Kensington Int’l Ltd., 353

F.3d 211, 219 (3d Cir. 2003) (quoting 28 U.S.C. § 1651(a)).

A

writ of mandamus is a “drastic remedy that ‘is seldom issued and

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its use is discouraged.’”

In re Patenaude, 210 F.3d 135, 140

(3d Cir. 2000) (quoting In re Chambers Dev. Co., 148 F.3d 214,
223 (3d Cir. 1998)).
A petitioner seeking a writ of mandamus has the burden
of establishing two prerequisites: “(1) that petitioner [has] no
other adequate means to attain the desired relief, and (2) that
petitioner meets its burden of showing that its right to the
writ is clear and indisputable.”

Id. at 141 (quoting In re

Chambers Dev. Co., 148 F.3d at 223).

“Even when these

requirements are met, issuance of the writ is largely
discretionary . . . .”

Id. (quoting In re Chambers Dev. Co.,

148 F.3d at 223)).
“[A] petitioner who has established that his
confinement is based on an unconstitutional trial is
presumptively entitled to release immediately or, more commonly,
after an appropriately circumscribed period to allow the state
time to retry the accused.”
994 (3d Cir. 1986).

Carter v. Rafferty, 781 F.2d 993,

A district court’s final order granting a

writ of habeas corpus, therefore, may be in one of two forms:
“It may unconditionally order the prisoner’s release, or it may
order his release at some time in the near future if, in the
meantime, he has not been afforded a new trial.”
ex rel. Thomas, 472 F.2d 735, 742 (3d Cir. 1973).

United States
The instant

case involves the second form of order, a conditional writ.
9

On September 23, 2016, the Court ordered the release
of Petitioner from custody pursuant to his writ of habeas
corpus, on the basis of a September 1, 2015, order issued by the
Third Circuit.

See ECF No. 49 at 1-2 at n.1.

The Third Circuit

order stated that “the Commonwealth of Pennsylvania shall either
release or retry Washington within 120 days of entry of this
order.”6

Washington, 801 F.3d at 172.

All parties agree that

the 120-day period began when the Supreme Court denied
certiorari on April 25, 2016.

Id.

The Commonwealth argued that

the 120-day period had not elapsed by September 23, 2016, on the
basis of several continuances sought by defense counsel in
Petitioner’s state court proceedings.

The Court held that the

120-day period had in fact elapsed, and that because the

6

The Third Circuit typically uses this language in
orders affirming habeas relief. See, e.g., Colon v. Rozeum, 649
Fed. App’x 259, 263 (3d Cir. 2016) (affirming district court
order granting habeas relief and stating that “the Commonwealth
of Pennsylvania shall release or retry [the petitioner] within
120 days of entry of this order”); Munchinski v. Wilson, 694
F.3d 308, 339 (3d Cir. 2012) (affirming district court order
granting habeas relief and stating that “[t]he Commonwealth must
either release [the petitioner] or retry him within 120 days of
our opinion”). The Third Circuit recently used different
language, remanding a petition for habeas corpus to the district
court “with instructions to grant the petition for habeas corpus
unless, within 60 days of the remand, the Commonwealth of
Pennsylvania decides to retry the charges against [the
petitioner].” McKernan v. Superintendent Smithfield SCI, 849
F.3d 557, 567 (3d Cir. 2017). Whether this recent language
indicates a change in the rights afforded to a victorious habeas
petitioner is not before the Court.
10

Commonwealth had not retried Petitioner within that time,
Petitioner was entitled to be released.

See id.

Petitioner argues that he is being detained unlawfully
because this Court ordered his release from custody unless he
was retried within 120 days, and the trial has not occurred.
See Mandamus Pet. at 1-2.

However, the Commonwealth has

represented that Petitioner was released from custody pursuant
to his original state court judgment following the Court’s
September 23, 2016 order.

See Conf. Tr. at 7:10-16.

The

Commonwealth also represented that it subsequently detained
Petitioner pending retrial on the same underlying charges.
id.

See

Further, the docket for Petitioner’s state court

proceedings indicates that the state court held a hearing on
April 25, 2017, regarding Petitioner’s motion for release on
nominal bail pending his retrial - currently set for February
12, 2018 - and issued an order denying the motion for release.
See Docket, Commonwealth v. Washington, No. CP-51-CR-10030912000 (Phila. Cty. Ct. Com. Pl.).
The Court finds that the Third Circuit’s “release or
retry” language did not prohibit the Commonwealth from rearresting and retrying Petitioner after his release on the
original charges, and detaining him pending that retrial,
subject to Petitioner’s right to a pretrial bail hearing and any
other rights of the accused under state and federal law.
11

As the

Third Circuit itself has explained, because it is a victorious
habeas petitioner’s “conviction, not his indictment, which has
been declared unconstitutional” by a federal court, “[n]othing
. . . prevents [a] State from dealing with a habeas releasee who
will be retried as the State would deal with any other State
prisoner who has yet to stand trial.”

Carter, 781 F.2d at 998.

Therefore, in this case, the “retry or release” order prohibited
the Commonwealth from detaining Petitioner only on the basis of
the prior judgment against him, from which Petitioner was
released by conditional writ of the court after 120 days had
elapsed.7

Nothing prevented the Commonwealth from releasing

Petitioner pursuant to this Court’s order, and then subsequently
detaining him pending retrial, subject to the state court
procedures for pretrial detention, including eligibility for
bail.
Based on the Commonwealth’s representations and the
state court docket, it does not appear that the Commonwealth is
holding Petitioner on the basis of the prior judgment against

7

The Court notes that it is unclear from the Third
Circuit’s order whether the word “retry” required the
Commonwealth to complete its retrial of Petitioner within 120
days, including receiving a verdict, or whether the Commonwealth
would have satisfied its obligation to retry Petitioner within
120 days by merely commencing trial within that timeframe. The
Court need not resolve that issue in order to rule on the
instant Mandamus Petition, however, as the Commonwealth chose to
release Petitioner pursuant to the Court’s order, rather than
“retry” him within 120 days.
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him, but rather, that Petitioner was released from incarceration
pursuant to his prior conviction, the Commonwealth re-arrested
him, and he is now being held without bail pending his retrial
on the underlying charges because the state court has denied
bail.

Thus, both the Third Circuit order and this Court’s order

have been satisfied.

To the extent that Petitioner claims that

since he was re-arrested, he has not been afforded his right to
a proper pretrial bail hearing and other protections under state
law, Petitioner can take up those matters, if at all, in the
state courts, at least initially.
Petitioner’s motion for enforcement of the judgment is
without merit for the same reason: the Commonwealth has complied
with the Court’s order.

In addition, contrary to Petitioner’s

assertions, the Commonwealth did not make a misrepresentation to
the state court by stating that this Court’s order permitted the
Commonwealth to retry Petitioner on the underlying state court
charges.

That representation, if made, was correct.

III. CONCLUSION
For the reasons stated above, the Court will deny the
Petition for a Writ of Mandamus and the Motion for Enforcement

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of the Judgment.

The Court will also deny Petitioner’s letter

request for the appointment of counsel.8
An appropriate order follows.

8

Petitioner is represented by counsel in his
proceedings in state court. Petitioner’s state court counsel is
in the best position to advance Petitioner’s interests, if any,
in the state court.
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