GRAY v. TICE et al
Filing
27
MEMORANDUM OPINION & ORDER: Eddie Ray Gray's request for habeas relief on his claim that his trial counsel was ineffective for failing to object to the §4953 Retaliation instruction is GRANTED; The execution of the writ of habeas corpus is STAYED for 180 days from the date of this Order, during which time the Commonwealth of Pennsylvania may either: (a) retry him; or (b) have the Court of Common Pleas of Warren County vacate his three convictions on §4953 Retaliation at CP-62-CR-2 64-2012 and impose a new sentence on his remaining convictions; After 180 days, should the Commonwealth of Pennsylvania not carry out either option set forth in paragraph 2, the writ will issue and the superintendent respondent will be ordered to rel ease Gray from the judgment of sentence imposed by the Court of Common Pleas of Warren County at CP-62-CR-264-2012; Gray's request for habeas relief on his other guilt-phase claims is DENIED and a certificate of appealability is DENIED with respect to each ofthose claims. Signed by Magistrate Judge Richard A. Lanzillo on 2/21/2019. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDDIE RAY GRAY,
Petitioner,
V.
ERIC TICE, et al.,
Respondents.
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Civil Action No. 17-71 Erie
Magistrate Judge Richard A. Lanzillo
OPINION
Before the Court 1 is a petition for a writ of habeas corpus filed by state prisoner Eddie
Ray Gray ("Gray") pursuant to 28 U.S.C. § 2254. ECF No. 7. He is challenging the judgment of
sentence imposed upon him on September 7, 2012, by the Court of Common Pleas of Warren
County at its criminal docket number CP-62-CR-264-2012. For the following reasons, the Court
will grant his petition and issue a conditional writ of habeas corpus.
I.
Introduction2
In 2007, Jeremy C. Hoden ("Hoden") committed numerous crimes against Merle Rice
("Merle") and his elderly mother, Irene Rice ("Irene") (collectively, the "Rices"). The
Commonwealth filed charges against Hoden in the Court of Common Pleas of Warren County
and he subsequently pleaded guilty to counts of burglary, robbery, criminal trespass, and related
crimes and was sentenced to a term of imprisonment.
In accordance with the provisions of28 U.S.C. § 636(c)(l), the parties voluntarily consented to have a
United States Magistrate Judge conduct proceedings in this case, including entry of a final judgment.
2
Respondents produced most of the relevant state court record at ECF No. 17-1 in the appendix to their
answer. At ECF No. 24, the Respondents filed the transcript of Gray's September 7, 2012, sentencing hearing and
the July 31, 2015, hearing held on his petition for collateral relief, which he filed with the Court of Common Pleas
pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). This Court shall cite to these electronically-filed
documents by their ECF document and page number. Respondents also submitted to this Court hardcopies of
documents filed with the Court of Common Pleas in Gray's underlying criminal case, including the transcript of his
August 2012 trial and the exhibits introduced at the trial. This Court shall cite to documents contained in that state
court record ("SCR") by their Bates stamp number as follows: "SCR at_. 11
1
In early 2012, Hoden and Gray, who was serving time on an unrelated conviction, were
incarcerated at the same state correctional institution. Over a two-month period beginning in
January 2012, they each mailed threatening letters to participants in Hoden's 2007 criminal cases.
Gray sent a total of three letters to the Rices, and one letter each to: the District Attorney of
Warren County; the Assistant District Attorney who had been involved in the prosecution of
Hoden's cases; and the two judges on the Court of Common Pleas who had presided over
proceedings in those cases. In its decision affirming Gray's judgment of sentence on direct
appeal, Commonwealth v. Gray, No. 1503 WDA 2013, slip op. (Pa. Super. Ct. July 9, 2013)
("Gray I"), ECF No. 17-1 at 68-96, the Superior Court of Pennsylvania provided lengthy
quotations from the letters Gray sent to his victims. It accurately described the letters as
"extremely threatening and highly disturbing," ECF No. 17-1 at 70, and explained:
the letters in question threatened the "lives of not only the people [who] were
receiving the letters, but also [their] families. And, [went into] great detail on how
[Gray and Hoden] were going to do the things that they were going to do to each
of the victims." N.T. Trial, 8/28/12, at 45-46. While both Gray and Hoden were in
jail when they mailed the letters, those documents indicated that the victims
would be killed either when Gray was released from prison or that the codefendants had the ability to obtain help from outside sources in carrying out their
threats.
ECF No. 17-1 at 71 (bracketed text added by the Superior Court).
The Commonwealth arrested Gray and Hoden and charged them with multiple counts of
Retaliation Against a Witness or Victim, 18 PA. CONS. STAT. § 4953 ("§ 4953 Retaliation"), and
Retaliation Against a Prosecutor or Judicial Official, 18 PA. CONS. STAT. § 4953.1 ("§ 4953.1
Retaliation"). Each Retaliation count was based on a single letter. The Commonwealth also
charged them with multiple counts of Terroristic Threats, 18 PA. CONS. STAT.§ 2706, and one
count of Conspiracy, 18 PA. CONS. STAT.§ 903.
2
Gray and Hoden's joint trial was held in August 2012, and at its conclusion the jury
convicted each of them of committing numerous crimes. 3 It found Gray guilty on three counts of
§ 4953 Retaliation (Counts 5 through 7) (a count for each letter he sent to one of the Rices); four
counts of§ 4953.1 Retaliation (Counts 1 through 4) (a count for each letter he sent to one of the
judicial/prosecutorial victims); eight counts of Terroristic Threats; and one count of Conspiracy.
On September 7, 2012, the court sentenced Gray to a term of five to ten years on each
count of§ 4953.1 Retaliation, three to seven years on each count of§ 4953 Retaliation, five to
ten years on the count of Conspiracy, and a fine on each count of Terroristic Threats. The court
ordered that all sentences of incarceration be served consecutively, resulting in a total aggregate
sentence of 35-71 years of imprisonment. It also ordered that the sentence it imposed was to run
consecutively to a term of incarceration already being served by Gray.
Gray, through his counsel, filed a direct appeal with the Superior Court in which he
argued that the Commonwealth presented insufficient evidence to sustain his convictions. The
Superior Court affirmed his judgments of sentence in Gray I, ECF No. 17-1 at 68-96, and the
Supreme Court of Pennsylvania denied his petition for allowance of appeal. ECF No. 17-1 at
165.
Gray next filed a pro se petition for PCRA relief. The court appointed him new counsel,
who filed an amended PCRA petition. In it, Gray raised a number of claims in which he
contended that his trial counsel provided him with ineffective assistance in violation of his Sixth
Amendment rights. In relevant part, he claimed that his trial counsel was ineffective for failing to
object to: (1) the instruction given on§ 4953 Retaliation on the grounds that it violated his right
Although Gray had confessed to the police that he wrote the letters signed by him, when he testified at the
trial he denied authorship. During his testimony, Hoden stated that he (Hoden) wrote all of the letters. The jury did
not credit the defendants' testimony on this point and Gray has since admitted that he wrote every letter bearing his
name. ECF No. 8 at IO.
3
to due process; (2) the instruction given on§ 4953.1 Retaliation on the grounds that it too
violated his right to due process; (3) the trial court's decision to permit the threatening letters to
be sent out with the jury during its deliberations on the grounds that it violated state law and his
right to due process; and (4) the sentence imposed on the grounds that it was manifestly
excessive. ECF No. 17-1 at 166-80.
Ineffective assistance of counsel claims are governed by the standard set forth by the
Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Strickland
recognized that a defendant's Sixth Amendment right to the assistance of counsel for his defense
entails the right to be represented by an attorney who meets at least a minimal standard of
competence. 466 U.S. at 685-87. "[T]he Sixth Amendment does not guarantee the right to perfect
counsel; it promises only the right to effective assistance[.]" Burt v. Titlow, 571 U.S. 12, 24
(2013).
Under Strickland, it is Gray's burden to establish that his "counsel's representation fell
below an objective standard of reasonableness." 466 U.S. at 688. "This requires showing that
counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by
the Sixth Amendment." Id. at 687. The Supreme Court has emphasized that "counsel should be
'strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment[.]"' Titlow, 571 U.S. at 22 (quoting Strickland, 466
U.S. at 690); Harrington v. Richter, 562 U.S. 86, 104 (2011) ("A court considering a claim of
ineffective assistance must apply a 'strong presumption' that counsel's representation was within
the 'wide range' ofreasonable professional assistance.") (quoting Strickland, 466 U.S. at 689).
Strickland also requires that Gray demonstrate that he was prejudiced by his trial
counsel's deficient performance. This places the burden on him to establish "that there is a
4
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694.
[Gray] "need not show that counsel's deficient performance 'more likely than not
altered the outcome of the case'-rather, he must show only 'a probability sufficient
to undermine confidence in the outcome."' Jacobs v. Horn, 395 F.3d 92, 105 (3d
Cir. 2005) (quoting Strickland, 466 U.S. at 693-94). On the other hand, it is not
enough "to show that the errors had some conceivable effect on the outcome of
the proceeding." [Richter, 562 U.S. at 104] (citing Strickland, 466 U.S. at 693).
Counsel's errors must be "so serious as to deprive the defendant of a fair trial." Id.
(citing Strickland, 466 U.S. at 687). The likelihood of a different result must be
substantial, not just conceivable. Id.
Brown v. Wenerowicz, 663 F.3d 619,630 (3d Cir. 2011).
Gray's ineffective-assistance-of-counsel claims are premised upon due process violations
that he argues occurred at his trial without objection from his trial counsel. 4 To be clear, Gray did
not raise in his PCRA proceeding (or in the federal habeas petition now before this Court) standalone due process claims. Rather, his due process claims are components of his ineffectiveassistance-of-trial-counsel claims. Therefore, it is not enough for him to establish that his
underlying due process claim has merit. Rather, Gray must demonstrate both of Strickland's
prongs: (1) that counsel performed deficiently for failing to raise a due process objection to the
trial court; and (2) that his counsel's error prejudiced the defense. That is because "[a]s a rule ... a
violation of the Sixth Amendment right to effective representation is not complete until the
4
Under Pennsylvania law, when a defendant failed to preserve a claim of trial court error, he cannot
challenge that alleged error in his subsequent direct appeal. See, e.g., 27 PAUL M. COLTOFF, ET AL., STANDARD
PENNSYLVANIA PRACTICE§ 135.330 (2d ed.), WestlawNext (database updated Nov. 2018) ("Thus, a defendant's
failure to challenge the jury charge before the jury retires to deliberate prevents appellate review."); Pa.R.Crim.P.
Rule 647(C) ("No portions of the charge nor omissions from the charge may be assigned as error, unless specific
objections are made thereto before the jury retires to deliberate."); Commonwealth v. Boyer, 891 A.2d 1265, 1267
(Pa. 2006). That is because, in contrast to federal law, Fed.R.Crim.P. 52(b), the plain error doctrine has been
abolished in Pennsylvania. Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974). When a defendant is foreclosed from
raising a trial-court error on direct appeal, he can receive review of it is by raising it as a component of (or the
"underlying claim" of) an ineffective-assistance-of-trial-counsel claim, which must be litigated in a PCRA
proceeding. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002); Boyer, 891 A.2d at 1267 ("In abolishing the plain
error doctrine in Pennsylvania, the Court determined that unpreserved claims, including ones such as those grounded
in federal due process, 'can more properly be remedied by a claim of ineffective assistance of counsel,' [Clair, 326
A.2d at 274], now relegated to the post-conviction review process. See Grant, [ ]813 A.2d at 738.").
5
defendant is prejudiced." Weaver v. Massachusetts, 137 S. Ct. 1899, 1910-11 (2017) (internal
quotations and citations omitted). And because a petitioner cannot prevail on a Sixth Amendment
claim unless he establishes both prongs of the Strickland test, the Supreme Court permits courts
to address only the prejudice prong if it is more efficient to proceed in that manner. 466 U.S. at
697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.") That is why in so
many instances a court will dispose of ineffective-assistance claims solely based upon a
determination that Strickland's prejudice prong has not been satisfied, and that approach is
entirely proper.
The PCRA court denied each of Gray's claims, ECF No. 17-1 at 204-12, and Gray,
through counsel, filed an appeal with the Superior Court. In that appeal, Gray raised the three
guilt-phase ineffective-assistance-of-trial-counsel claims set forth above. He did not raise the
sentencing-phase claim. ECF No. 17-1 at 216-53.
On September 22, 2016, the Superior Court affirmed the PCRA court's decision.
Commonwealth v. Gray, No. 1733 WDA 2015, slip op. (Pa. Super. Ct. Sept. 22, 2016) ("Gray
IF'), ECF No. 17-1 at 294-306. It denied each of Gray's claims on the merits. He filed a petition
for allowance of appeal with the Supreme Court of Pennsylvania, which that court denied on
February 28, 2017. ECR No. 17-1 at 339.
Next, Gray filed with this Court his petition for a writ of habeas corpus, ECF No. 7, and
memorandum of law in support, ECF No. 8, in which he raised the three guilt-phase ineffective-
6
assistance-of-trial-counsel claims that the Superior Court denied in Gray II. 5 The Respondents
filed their answer, ECF No. 17, and Gray filed a reply, ECF No. 19.
II.
Jurisdiction and Standard of Review
This court has jurisdiction under 28 U.S.C. § 2254, which is the federal habeas statute
applicable to state prisoners. It permits a federal court to grant a state prisoner the writ of habeas
corpus "on the ground that he or she is in custody in violation of the Constitution ... of the United
States." 28 U.S.C. § 2254(a). It is Gray's burden to prove that he is entitled to the writ. Id.; see,
e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are
other prerequisites that he must satisfy before he can receive habeas relief (most relevant here is
the burden imposed upon him by the standard ofreview set forth at 28 U.S.C. § 2254(d)(l)
(discussed below)), but, ultimately, Gray cannot receive federal habeas relief unless he
demonstrates that he is in custody in violation of the federal constitution.
In 1996, Congress made a number of significant amendments to the federal habeas
statutes with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. AEDPA "modified a federal habeas court's
role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It
reflects the view that habeas corpus is a "'guard against extreme malfunctions in the state
In his petition, Gray also raised one sentencing-phase claim (that his trial counsel was ineffective for failing
to object to the sentence imposed on the grounds that it was manifestly excessive). Because Gray did not raise this
claim to the Superior Court in his PCRA appeal, he procedurally defaulted it for the purposes of federal habeas
review. Gray acknowledges that the claim is procedurally defaulted, but argues that he can overcome the default
under Martinez v. Ryan, 566 U.S. I (2012). This Court does not need to resolve that issue because it has determined
that Gray is entitled to habeas relief on one of his guilt-phase claims and, therefore, will issue a conditional writ
instructing that the Commonwealth must either retry him or, in the alternative, have the Court of Common Pleas
vacate his§ 4953 Retaliation convictions and resentence him. Under either option, Gray's sentencing-phase claim is
moot.
7
criminal justice systems,' not a substitute for ordinary error correction through appeal."
Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307,
332, n.5 (1979) (Stevens, J., concurring injudgment)).
AEDP A put into place a new standard of review applicable to habeas petitions filed by
state prisoners, and it is codified at 28 U.S.C. § 2254(d). It provides, in relevant part:
(d)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States[.]
28 U.S.C. § 2254(d)(l).
For the purposes of§ 2254(d), a claim has been "adjudicated on the merits in State court
proceedings" when a state court made a decision that finally resolves the claim based on its
substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson
v. Beard, 762 F.3d 316,324 (3d Cir. 2014). The parties agree that the Superior Court adjudicated
on the merits the three guilt-phase claims that Gray now brings before this Court and that, as a
result, AEDP A's standard of review at § 2254( d)( 1) applies to this Court's review of each claim.
The Supreme Court's Strickland standard is the "clearly established Federal law, as
determined by the Supreme Court of the United States,'' in which to analyze each of Gray's
claims under § 2254(d)(l ). Therefore, in evaluating each claim, this Court's first task is to ask
whether the Superior Court's adjudication of the claim at issue was "contrary to" Strickland.
Williams, 529 U.S. at 404-05 (§ 2254(d)(l)'s "contrary to" and "unreasonable application of'
clauses have independent meaning). In relevant part, a state court's decision is "contrary to"
8
Strickland if the state court "applie[d] a rule that contradicts the governing law set forth" by the
Supreme Court in Strickland. Id. at 405. 6
If this Court concludes that the Superior Court's adjudication of the claim at issue was not
"contrary to" Strickland, then it next evaluates the adjudication under§ 2254(d)(l)'s
"unreasonable application" clause. "A state court decision is an 'unreasonable application of
federal law' if the state court 'identifies the correct governing legal principle,' but 'unreasonably
applies that principle to the facts of the prisoner's case."' Dennis v. Sec'y, Pennsylvania Dep't of
Corr., 834 F.3d 263,281 (3d Cir. 2016) (en bane) (quoting Williams, 529 U.S. at 413). To satisfy
his burden under this clause, Gray must do more than convince this Court that the Superior
Court's decision was incorrect. Id. He must show that it "'was objectively unreasonable."' Id.
(quoting Williams, 529 U.S. at 409) (emphasis added by court of appeals). This means that Gray
must demonstrate that the Superior Court's adjudication "was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement." Richter, 562 U.S. at 103.
It bears repeating that even a strong case for relief does not mean the state court's
contrary conclusion was unreasonable. See [Lockyer v. Andrade, 538 U.S. 63, 75
(2003)].
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDP A, § 2254( d) stops short of imposing a complete bar on
federal-court relitigation of claims already rejected in state proceedings. Cf
Felker v. Turpin, 518 U.S. 651,664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)
(discussing AEDPA's "modified resjudicata rule" under§ 2244). It preserves
authority to issue the writ in cases where there is no possibility fairminded jurists
could disagree that the state court's decision conflicts with this Court's precedents.
It goes no further.
Id. at 102.
6
Another way a state-court adjudication can be "contrary to ... clearly established Federal law[,]"
§ 2254( d)(l ), is "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Williams, 529 U.S.
at 406.
9
If this Court determines that Gray has established that the Superior Court's adjudication
of the claim at issue was either "contrary to" or "an umeasonable application of' Strickland, it
"must proceed to review the merits of the claim de nova to evaluate if a constitutional violation
occurred." Vickers, 858 F.3d at 849 (citing Lafler v. Cooper, 566 U.S. 156, 174 (2012)). That is
because "a federal court can only grant the Great Writ if it is 'firmly convinced that a federal
constitutional right has been violated[.]"' Id. (citing Williams, 529 U.S. at 389, and Horn v.
Banks, 536 U.S. 266, 272 (2001) ("[w]hile it is of course a necessary prerequisite to federal
habeas relief that a prisoner satisfy the AEDPA standard ofreview ... none of our post-AEDPA
cases have suggested that a writ of habeas corpus should automatically issue if a prisoner
satisfies the AEDPA standard")). As the United States Court of Appeals for the Third Circuit
explained in Vickers, these steps "sometimes merge in cases in which the federal habeas court
determines that the state court engaged in an 'umeasonable application' of clearly established
Supreme Court precedent because it will be apparent from the explication of why the state court
umeasonably applied that precedent that, under any reasonable application, a constitutional
violation did occur." 858 F.3d at 849 n.8.
III.
Discussion
A.
Counsel's Failure to Object to the§ 4953 Instruction
In his first claim for habeas relief, Gray contends that his trial attorney provided him with
ineffective assistance for failing to object to the trial court's instruction on the offense of§ 4953
Retaliation. That instruction, Gray asserts, deprived him of his due process right to have the
Commonwealth prove every element of the offense beyond a reasonable doubt. 7
7
The Fourteenth Amendment requires the government to prove beyond a reasonable doubt every element of
the crime with which a defendant is charged. In re Winship, 397 U.S. 358, 364 ( 1970); United States v. Gaudin, 515
U.S. 506, 510, 522-23 (1995). As a result, due process is violated when a jury instruction relieves the government of
10
(1)
Background
(a)
The offense of§ 4953 Retaliation
The Pennsylvania Crimes Codes defines § 4953 Retaliation as follows:
A person commits an offense if he harms another by any unlawful act or engages
in a course of conduct or repeatedly commits acts which threaten another in
retaliation for anything lawfully done in the capacity of witness, victim or a party
in a civil matter.
18 PA. CONS. STAT.§ 4953(a). The Pennsylvania courts have interpreted§ 4953 to allow for a
conviction of Retaliation if the Commonwealth proves the defendant engaged in any one of the
following three scenarios for a retaliatory purpose. The first scenario is that "the defendant
harmed another by any unlawful act," the second scenario is that the defendant "engag[ed] in a
course of conduct which threatened another," and the third scenario is that "the defendant
repeatedly committed acts which threaten another." Commonwealth v. Ostrosky, 909 A.2d 1224,
1228 (Pa. 2006). 8
As set forth in more detail below, at Gray's trial the court declined to instruct the jury on
the second and third scenarios. It instructed only on the first scenario, which is that part of the
statute criminalizing retaliation if the defendant "harms another by any unlawful act." In
that burden. See, e.g., Washington v. Sarausad, 555 U.S. 179, 190-91 (2009). Supreme Court precedent explaining
the federal due process standard instructs that a reviewing court must first ask whether "there is some ambiguity,
inconsistency, or deficiency in the instruction, such ... that there was a reasonable likelihood that the jury applied the
instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable
doubt." Sarausad, 555 U.S. at I 90-91 (internal quotations and citations omitted). "In making this determination, the
jury instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as
a whole and the trial record." Id. at 191 (internal quotation and citation omitted). "[I]t is not enough that there is
some slight possibility that the jury misapplied the instruction. The pertinent question is whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process[.]" Id. (internal
quotation and citation omitted).
If the jury determines that the Commonwealth proved beyond a reasonable doubt any of the three scenarios,
it must next determine whether the defendant did so in retaliation for the witness or victim doing something such as,
for example, testifying at trial against the defendant or giving information to the police. I 8 PA. CONS. STAT.§ 4953.
11
Ostrosky,9 the Supreme Court of Pennsylvania held that to satisfy the requirements of that
scenario, the Commonwealth must prove the following two separate elements (in addition to the
retaliation element): (1) that the defendant caused harm; and (2) that such harm resulted from an
unlawful act. 909 A.2d at 1231-32. Importantly, the element of harm cannot be established
merely by showing that an unlawful act was committed. Id. at 1232-33. That is, the
Commonwealth must prove that the victim suffered a specific and identifiable harm as a result of
the threat, not just that the victim suffered "feelings of concern and intimidation[,]" which "are
feelings that one would expect to accompany any threat that was made." Id. at 1233. 10
(b)
Gray's trial
Gray sent two letters to Irene and one letter to Merle. The first letter he sent to Irene was
dated January 27, 2012, which is the same date that Hoden sent his first letter to her. During
Irene's direct examination, the prosecutor asked her how she felt after she read Hoden's letter.
She replied: "I kind of laughed at it, because I knew he was in prison for a long time, so I wasn't
too concerned. Although it did make me a little fearful." SCR at 610. Hoden wrote that Gray
would be getting out of prison soon and that he would be coming after her. Irene testified that
that threat made her "a little concerned. Not too much. I didn't think[] anything would really
happen." SCR at 634. On cross-examination, Gray's trial counsel asked Irene why she was "only
concerned a little bit about the letters[.]" SCR at 635. She replied: "I knew they were locked up,
9
As in Gray's case, only the first scenario of§ 4953 Retaliation was applicable in Ostrosky. The victim in
Ostrosky was verbally threatened by the defendant during an incident at a high school football game, and at the
defendant's trial the victim and his wife "testified to feelings of concern and intimidation" due to the defendant's
threats. 909 A.2d at 1233.
10
To conclude otherwise, the Supreme Court of Pennsylvania explained, would be "just another way of
asserting that harm, per se, results from the commission of an unlawful act." Ostrosky, 909 A.2d at 1233. "[T]his is
not to say[,]" the court clarified, "that one could never show that harm ... resulted from a single threat. Rather, as
noted, at issue here is whether, in all cases, a distinct showing in this regard is required. Again, we hold that it is."
Id. at 1232 n.9.
12
and I didn't think they could get out right away." SCR at 636. The following exchange then
occurred:
Q.
You laughed about a couple of the comments [in the letters]?
A.
Yeah. Because they were so ridiculous.
Q.
So, it's fair to say, that you weren't emotionally traumatized by the letters?
A.
I was concerned. Yes. But, not to the, I don't scare easy.
Q.
Right. So, for example, you didn't have to see a psychiatrist or a therapist
or-
A.
No.
Id
When he testified, Merle described his mother's reaction this way: "[s]he was pretty
shaken up. She was pretty concerned about, especially about the statements that they were
getting out of prison relatively soon. And, she wasn't sure what to expect. She was very, her
hands were shaking when she gave me the letters." SCR at 657.
Gray and Hoden each wrote Irene a second letter in February 2012. Irene did not read
either letter. She gave them to Merle to forward to the police. Gray and Hoden each wrote Merle
a letter that same month. Merle only read Gray's letter. SCR at 648. Merle did not discuss during
his direct examination how he felt after he read Gray's letter. On cross-examination, he testified
that he did not have to see a psychiatrist or therapist. SCR at 662.
After the defendants rested their cases, Gray's counsel moved for judgment of acquittal
on all counts of§ 4953 Retaliation. He argued that the Commonwealth did not present sufficient
evidence that the Rices had suffered objective harm beyond having been subjected to the threat
itself, as required by Ostrosky. The trial court rejected this argument, concluding that there was
"a jury question as to whether or not there was harm." SCR at 852.
13
Gray's trial counsel also argued that Gray could not be found guilty of§ 4953 Retaliation
under the "course of conduct" or "repeatedly commits acts" provisions of the statute (that is,
under the second or third scenarios). In support, counsel pointed out that "there was only one
letter to Merle Rice[,] [a ]nd one threatening letter cannot establish a course of conduct." SCR at
846. As for Irene, counsel argued that, although Gray had sent her two letters, "the Attorney
General charged one count [of Retaliation] for each letter." Id. Therefore, counsel argued, "as
charged, the statute is not met, because there cannot be a course of conduct with one letter." Id.
The trial court was persuaded by trial counsel's argument regarding the second and third
scenarios because when it instructed the jury on the offense of§ 4953 Retaliation, it only
provided the jury with the option of finding Gray guilty under that statute's first scenario. Neither
defense counsel nor the prosecutor appears to have understood the trial court's decision at that
point in time, however, because they discussed the inapplicable scenarios in their subsequent
closing arguments.
During his summation, Gray's trial counsel stated:
Now, the law required that somebody has to be harmed by an unlawful actor
engaged in course of conduct or repeatedly commit acts threatening to commit in
retaliation for acts done as a victim or witness. And, that standard hasn't been met
here. You have heard what everybody testified about. You heard Irene Rice
testify. That she wasn't really intimidated by the letters. She didn't feel harmed. In
fact, she laughed at some parts of that. So, I would argue that there was no actual
harm to Irene Rice. There was only a threat of harm, which I am not minimizing.
But, that doesn't fit the statute here. And same for Merle Rice. Really wasn't any
harm. He didn't testify about having to miss any work, see a psychiatrist, anything
like that.
Also, there is the issue of course of conduct or repeatedly committing acts.
How the evidence is charged here, how the charges are, is that there is one letter
for each charge. That doesn't constitute a course of conduct. That doesn't
constitute a repeatedly committing acts. Those are one acts [sic]. One act each.
So, that standard simply isn't met.
SCR at 931-32.
14
In response, the prosecutor in his closing argument reminded the jury that all of the
witnesses testified that the letters made them feel "concerned[,]" SCR at 944, and he specifically
referenced Merle's testimony that Irene was "shaking" and "worried" after she read the first set of
letters. SCR at 945. But in his final comments to the jury on the topic, the prosecutor argued that
"this was one big course of conduct." SCR at 946.
When the trial court gave its instructions on the offense of§ 4953 Retaliation, it omitted
both the "course of conduct" and "repeatedly commits act" provisions (scenarios two and three)
and only instructed as to the statute's first scenario-the "harms another by any unlawful act"
provision. It stated:
In order to find the Defendant guilty of the crime of retaliation against a witness
or victim, you must find each of the following two elements have been proven
beyond a reasonable doubt.
First, that the Defendant harmed either Merle Rice or Irene Rice by an
unlawful act. And, that could be a threat or abuse or death threats. You will have
the letters. You will get to review whether there was an unlawful act.
Second, that the Defendant did so in retaliation for Merle or Irene
testifying at a trial or giving information to a police officer or other judicial
person, which was something lawfully done by that victim or witness in the
capacity as a victim or witness.
A witness is a person having of the existence or non-existence of facts or
information relating to a crime.
If you find those two elements have been proven beyond a reasonable
doubt, you should find the Defendant guilty. Otherwise, you must find the
Defendant not guilty.
SCR at 977-78. 11
11
The offense of§ 4953 Retaliation is a felony of the third degree if the retaliation is accomplished by any of
the means specified for the offense of Intimidation of Witness or Victims, which is codified at 18 PA. CONS. STAT.
§ 4952. For example, it is a third-degree felony for a person to retaliate against a witness or victim if the defendant
"employ[ed] force, violence or deception, or threaten[ed] to employ force or violence upon the witness or victim[,]"
§ 4952(b)(l)(i), and Gray's jury was instructed accordingly. SCR at 978-79. The trial court explained to it that ifit
found Gray guilty on any of the counts of§ 4953 Retaliation, it had to answer a special interrogatory and set forth
how the retaliation was accomplished. SCR at 978. During its deliberations, the jury asked a question regarding the
special interrogatory. In its response, the trial court once against instructed the jury on the offense of§ 4953
Retaliation, giving the same instruction it had previously given in all relevant respects. SCR at 1001-02. When the
jury subsequently answered the special interrogatory for each count of§ 4953 Retaliation, it wrote that Gray was
"guilty by threatening." SCR at 131-33. Therefore, those counts were graded as felonies of the third degree.
15
The obvious and significant problem with the instruction is that it did not define "harm"
in accordance with Ostrosky. The court should have explained to the jury that, with respect to
each count, it had to find that the victim suffered a harm beyond the normal feelings of concern
and intimidation that would result from the receipt of the threatening letter (the "unlawful act")
itself. The effect of the court's failure to define "harm" was compounded when it grouped the
"harm" and "unlawful act" elements together and instructed the jury that the Commonwealth had
to prove only two elements in order for it to convict Gray on any count of§ 4953 Retaliation:
(1) that he harmed the victim by an unlawful act; and (2) that he did so in retaliation. That is not
a correct statement of the elements of the crime of§ 4953 Retaliation under the circumstances.
The jury had to find three elements to convict Gray of the offense: (1) that he harmed the victim,
as defined by Ostrosky; (2) by an unlawful act; and (3) that he did so in retaliation.
After the trial court gave the instructions, it asked Gray's counsel whether he had "any
objections or additions?" SCR at 997. Trial counsel replied that he had none. Id. The prosecutor
objected on the basis that the Court did not instruct on§ 4953's second and third scenarios. The
trial court advised counsel that it only instructed on the statute's first scenario because it had
determined that the Commonwealth had not introduced sufficient evidence to instruct the jury on
the other two scenarios. SCR at 998-99.
The jury found Gray guilty of three counts of§ 4953 Retaliation. Count 5 was for the first
letter Gray sent to Irene, Count 6 was for the second letter he sent to her, and Count 7 was for the
single letter he sent to Merle.
(c)
Gray's direct appeal
In his direct appeal to the Superior Court, Gray argued that his convictions for § 4953
Retaliation must be overturned because the Commonwealth failed to produce sufficient evidence
16
from which the jury could have concluded that either of the Rices suffered the requisite "harm"
from the receipt of the threatening letters. Significantly, in its decision in Gray I, the Superior
Court agreed with Gray that the Commonwealth failed to introduce sufficient evidence that
either Irene or Merle suffered "harm" as defined by Ostrosky. ECF No. 17-1 at 88-90. The
Superior Court denied his claim, however, because it determined that there was sufficient
evidence to support his convictions under the "course of conduct" provision (the second
scenario) of§ 4953. Id. It did not reconcile its holding with the fact that the trial court had
refused to instruct the jury on that scenario. Under the instruction the trial court gave, the only
way the jury could convict Gray on any count of§ 4953 Retaliation was if it found that the
"harms another by any unlawful act" provision was proven by the Commonwealth beyond a
reasonable doubt. That was the very provision the Superior Court recognized in Gray I was not
supported by sufficient evidence. 12
(d)
Gray's PCRA proceeding
In his amended PCRA petition, Gray raised the claim that he now brings before this
Court. He argued that his trial counsel was ineffective for failing to object to the instruction
given by the trial court on the offense of§ 4953 Retaliation, which he contended violated his due
process rights because it relieved the Commonwealth of its burden of proving every element of
the crime beyond a reasonable doubt. Specifically, Gray contended that his counsel should have
objected to the instruction and suggested one that made clear to the jury that, in order to
convicted him on each count of§ 4953 Retaliation, it had to find that: (1) he sent the threatening
12
Additionally, the Superior Court did not address Gray's argument that, due to the manner in which the
Commonwealth had charged him (one count of§ 4953 Retaliation for each letter Gray sent to the Rices), there was
not sufficient evidence to convict him under either the "course of conduct" or "repeatedly commits act" provisions
(scenarios two and three) of the statute. The trial court had accepted that argument and that is why it had instructed
the jury in the manner that it did.
17
letter (committed the unlawful act); (2) in retaliation; and (3) that the victim was "harmed," as
defined by Ostrosky, as a result.
The PCRA court denied this claim and the Superior Court affirmed in Gray II. ECF No.
17-1 at294-306.
(2)
Analysis
In evaluating this claim, and all the claims it had before it in Gray II, the Superior Court
recognized that the Strickland standard applied. 13 ECF No. 17-1 at 297. In its adjudication of this
specific claim, it ruled in favor of Gray on Strickland first prong-the deficient performance
prong. Specifically, it recognized that Gray's underlying challenge to the trial court's instruction
was meritorious because the instruction "combin[ed] the harm and illegal act" elements of the
first scenario of§ 4953 "into a single element." ECF No. 17-1 at 299. The Superior Court denied
this claim because it concluded that Gray did not demonstrate that he was prejudiced by
counsel's deficient performance. Id. at 299-301.
In deciding that Gray did not establish that he was prejudiced by counsel's error, the
Superior Court relied upon its decision in Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super.
Ct. 2013). ECF No. 17-1 at 299-301. The claim at issue in Sandusky, however, was not an
ineffective assistance of counsel claim, nor did the defendant in that case argue, as does Gray,
that the instruction given violated his due process rights. Rather, in Sandusky, the defendant
challenged the trial court's instruction on state-law grounds, arguing that he was entitled to the
13
Pennsylvania courts typically articulate Strickland's standard in three parts, as the Superior Court did in
Gray II, ECF No. 17-1 at 297, while federal courts set it out in two. The legal evaluation is the same, and the
differences merely reflect a stylistic choice on the part of state courts. See, e.g., Commonwealth v. Daniels, 963 A.2d
409, 419 (Pa. 2009); Commonwealth v. Sepulveda, 55 A.3d 1108, 1117-18 (Pa. 2012); Commonwealth v. Kimball,
724 A.2d 326, 330-33 (Pa. 1999).
18
"prompt complaint" instruction. 14 77 A.3d at 666. The court in Sandusky agreed with the
defendant that the trial court had erred when it failed to give the requested instruction. It found
that state-law error to be harmless because the trial court had given the standard jury instruction
on how to evaluate the credibility of a witness and it concluded that that instruction, combined
with "[t ]he vigorous cross-examination of the victims and arguments by defense counsel,"
"clearly defined the issues for the jury." 77 A.3d at 669.
Relying upon Sandusky, the Superior Court in Gray II asked, in evaluating whether Gray
was prejudiced by his counsel's error, whether "the surrounding events at trial 'clearly defined the
issues for the jury[,]"' notwithstanding the fact that the trial court's instruction did not. ECF No.
17-1 at 300. It answered that question in the affirmative, reasoning that Gray's "trial counsel's
repeated emphasis of the harm requirement during cross-examination and in closing arguments"
"sufficiently alerted the jury to the harm element of the offense[.]" ECF No. 17-1 at 300-01. For
that reason, the Superior Court determined that Gray "failed to meet his burden of showing that
any additional instruction from the trial court would have had any effect on the jury's verdict."
ECFNo. 17-1 at 301.
An argument can be made that the Superior Court, by relying so heavily on Sandusky's
harmless-error review, did not apply the proper prejudice evaluation commanded by Strickland,
which asks whether "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." 466 U.S. at 694. Stated another
14
Sandusky was the direct appeal of Gerald A. Sandusky, who was convicted of 45 counts relating to the
sexual abuse of young boys. He "argue[d] that the trial court erred in refusing to give the jury the prompt complaint
instruction found at Section 4.13A of the Pennsylvania Suggested Standard Criminal Jury Instructions." Sandusky,
77 A.3d at 666. "The premise for the prompt complaint instruction is that a victim of sexual assault would reveal at
the first available opportunity that an assault occurred[,]" and it "permits a jury to call into question a complainant's
credibility when he or she did not complain at the first available opportunity." Id. at 667. As Gray's points out in his
brief, "Sandusky challenged a 'requested instruction,' and not an instruction regarding an element of the crime to
which he was defending against." ECF No. 8 at 21.
19
way, although the Superior Court correctly identified Strickland as controlling at the beginning
of its decision, it may be that it failed to apply its prejudice standard when it actually adjudicated
this claim. If this Court were to conclude that the Superior Court failed to apply Strickland's
prejudice standard, the Superior Court's adjudication would be "contrary to" Strickland and this
Court would then proceed to review the merits of the claim de nova. Under a de nova standard of
review, the Court has no problem concluding that Gray has established that he was prejudiced by
his counsel's failure to object to the erroneous instruction and propose one that cured its
deficiencies.
The Court is mindful, however, that the Supreme Court has cautioned that federal courts,
when applying§ 2254(d)(l)'s standard ofreview, should not be too quick to assume that the state
court applied the wrong law, even if the state court was imprecise in language it used in
evaluating a claim. Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam) (finding the
court of appeals's "readiness to attribute error [to the state court] is inconsistent with the
presumption that state courts know and follow the law," and is "also incompatible with
§ 2254(d)'s 'highly deferential standard for evaluating state-court rulings,' which demands that
state court decisions be given the benefit of the doubt.") This is particularly so when a
commonly-applied and well-known inquiry such as the Strickland prejudice prong is at issue. Id.;
cf Titlow, 571 U.S. at 19 (observing how common ineffective-assistance-of-counsel claims
under Strickland are and that it is "a claim state courts have now adjudicated in countless
criminal cases for nearly 30 years[.]") Moreover, the Supreme Court also has explained that a
"run-of-the-mill" state-court decision applying the correct legal rule from Supreme Court
decisions to the facts of a particular case does not fit within§ 2254(d)(l)'s "contrary to" clause
and should be reviewed under the "unreasonable application" clause. Williams, 529 U.S. at 406.
20
For these reasons, the Court will proceed under the assumption that the Superior Court's
adjudication of this claim survives review under § 2254( d)(l )'s "contrary to" clause and that the
proper way to evaluate it is under the "unreasonable application" clause. To satisfy his burden
under the "unreasonable application" clause, Gray must do more than convince this Court that
the Superior Court's decision was incorrect. See, e.g., Dennis, 834 F.3d at 281. He must show
that its decision "'was objectively unreasonable."' Id. (quoting Williams, 529 U.S. at 409)
(emphasis added by court of appeals). As explained above, this means that Gray must
demonstrate that the Superior Court's decision "was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement." Richter, 562 U.S. at 103.
Although Gray's burden under § 2254( d)(l )'s "unreasonable application" clause is very
difficult to overcome, he has satisfied it under the circumstances. The Superior Court held that
Gray was not prejudiced because, through his cross-examination of the Rices and in his closing
arguments, counsel "clearly defined the issues for the jury." ECF No. 17-1 at 300. For the
following reasons, that adjudication was not just wrong, it was objectively unreasonable.
First, it is the court, not the parties, that instructs the jury as to the law that it must apply,
and the trial court repeatedly made this point to Gray's jury. SCR at 572 ("You must follow my
rulings and instructions on matters oflaw[.] ... You will apply the rules oflaw which I give you to
the facts as you find them[.]"); SCR at 957-58 ("[Y]ou are not required to accept the arguments
of either lawyer. It is for you and you alone to decide the case based on the evidence as it was
presented from the witness stand and in accordance with the instructions I am now giving you.");
SCR at 987 ("you must accept and follow my rulings and instructions on matters of the law.")
The mere fact that counsel argued to the jury that the Rices were not harmed by Gray could not
21
alleviate the defect of the trial court's instruction, which did not instruct that "harm" was a
separate element that the Commonwealth was required to prove beyond a reasonable doubt or
define that element in accordance with Ostrosky.
Second, Gray's trial counsel and the prosecutor discussed in their closing arguments those
scenarios that criminalized conduct under§ 4953 that did not apply because the trial court
refused to instruct the jury on them. Therefore, trial counsel's closing argument (as well as the
prosecutor's) would have only confused the jury on the elements it had to find in order to convict
Gray of§ 4953 Retaliation.
Third, and significantly, there can be no dispute that the evidence was insufficient to
establish that either of the Rices suffered the requisite "harm" necessary for the jury to convict
Gray of§ 4953 Retaliation under that statute's first scenario. The Superior Court recognized that
fact in Gray I The following conclusion is, therefore, unavoidable: but for counsel's error in
failing to ensure that the jury was instructed that it had to find that the Commonwealth proved
the element of "harm" as defined by Ostrosky, there is a reasonable probability that it would have
acquitted Gray of the three counts of§ 4953 Retaliation it had before it.
For all of these reasons, the Court concludes that the Superior Court's determination that
Gray was not prejudiced by his trial counsel's deficient performance "was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Gray thus has
demonstrated that the Superior Court's decision was an "unreasonable application of'' Strickland,
and he also has demonstrated that his Sixth Amendment right to effective assistance of counsel
was violated. He is entitled to a writ of habeas corpus on this claim and the Court will issue a
22
conditional one that directs that the Commonwealth retry him or, in the alternative, have the
Court of Common Pleas vacate his convictions on Counts 5, 6, and 7 and resentence him.
B.
Counsel's Failure to Object to the§ 4953.1 Instruction
In his next claim, Gray contends that his counsel provided him with ineffective assistance
for failing to object to the trial court's instruction on the offense of§ 4953 .1 Retaliation, which
he contends deprived him of his due process right to have the Commonwealth prove every
element of the offense beyond a reasonable doubt.
(1)
Background
(a)
The offense of§ 4953.1 Retaliation
The Pennsylvania Crimes Codes defines§ 4953.1 Retaliation as follows:
A person commits an offense ifhe [1] harms or attempts to harm another or the
tangible property of another [2] by any unlawful act [3] in retaliation for anything
lawfully done in the official capacity of a prosecutor or judicial official.
18 PA. CONS. STAT.§ 4953.l(a) (bracketed text and emphasis added). The offense of§ 4953.1
Retaliation is a felony of the second degree if the jury finds the defendant engaged in the conduct
enumerated in subparagraph (b) of the statute, including "employs force, violence or deception or
attempts or threatens to employ force, violence or deception[.]" Id. §4953 .1 (b)(1 ).
(b)
Gray's trial
At Gray's trial, the court gave the following instruction regarding the offense of§ 4953.1
Retaliation:
To find the Defendant guilty of this offense, you must find the following elements
have been proven beyond a reasonable doubt.
First, that the Defendant harmed or attempted to harm another person or the
tangible property of [the victim].
Second, that the Defendant did so by an unlawful act. Threatening someone, the
crime of murder, can be an unlawful act. You will have the letters. You can
review as to whether there was an unlawful act.
23
Third, the Defendant did so to retaliate against [the victim], for something he or
she did lawfully in his or her official capacity as a judge or prosecutor.
SCR at 975-76. Because the counts of§ 4953.1 Retaliation were graded as a felony of the second
degree, the jury was also advised that it had to find the following fourth element, in accordance
with§ 4953.l(b):
Fourth, that the Defendant attempted or threatened to use force, violence or
deception upon [the victim] or upon another person knowingly and intentionally
to retaliate against [the victim] for something he or she did lawfully in his or her
official capacity as a judge or as a prosecutor.
SCR at 975-77.
(c)
Gray's direct appeal
In his direct appeal, Gray argued that his four convictions of§ 4953.1 Retaliation should
be overturned because the Commonwealth introduced insufficient evidence that any of the
judicial or prosecutorial victims suffered harm as defined by Ostrosky. ECF 17-1 at 26-27. The
Superior Court accepted Gray's arguments that Ostrosky's holding extended to the offense of
§ 4953.1 Retaliation and that none of the victims at issue suffered "harm" as defined by that case.
The Superior Court denied his claim because it found that there was sufficient evidence that he
attempted to cause each victim the requisite harm, explaining:
Gray overlooks that[§ 4953.1 Retaliation], unlike the crime ofretaliation
against a witness [§ 4953], does not indicate that "harm" must exist. Rather, it is
sufficient if the defendant "attempted" to cause harm. The vile and repugnant
nature of the communications received by [the judicial and prosecutorial victims]
cannot be overstated. They bear no resemblance to the assault threats examined in
Ostrosky. The actions that Gray said that he would commit with respect to [the
Assistant District Attorney of Hoden's 2007 criminal cases and one of the judicial
victims] are so vile that we could not reproduce them. Indeed, [the Assistant
District Attorney] was pregnant when the letters were sent to her office, and her
colleagues did not allow her to view them for fear she would suffer a miscarriage.
Additionally, even though Gray and Hoden were incapable of performing
the heinous acts for two years, they also informed victims that there were people
outside prison who were available to perform the acts. Moreover, there was an
insidious, menacing air of immediacy in the communications. Gray repeatedly
used the terms, "tick, tock, time is running out." The victims were told to be on
24
alert continually for the possibility of being shot in the head, burnt, and tortured.
In some cases, family members were threatened. Finally, Hoden and Gray sent
their letters contemporaneously so that each victim received them at the same
time in order to heighten the physical fear and mental anxiety a lone letter might
cause. Given all these circumstances, the record sustains a finding beyond a
reasonable doubt that Gray and Haden attempted to objectively harm their
victims beyond causing concern or intimidation that would naturally flow from
receipt of menacing letters, in and of itself. Cf Commonwealth v. Helsel, 53 A.3d
906, 918 (Pa. Super. 2012) (quoting 18 Pa.C.S.A. § 901(a)) ("A person commits
an attempt when, with attempt to commit a specific crime, he does any act which
constitutes a specific crime.").
Thus, while Gray and Haden were unsuccessful in causing the prosecutors
and judicial officials objective harm, Gray and Haden 's language and
synchronicity in mailing the letters unequivocally demonstrated that they had the
specific intent to cause objective harm to each victim beyond concern or
intimidation. They therefore attempted to cause such harm. Hence, we reject this
challenge to the sufficiency of the evidence supporting the offenses of retaliation
against a prosecutor or judicial officer.
ECF No. 17-1 at 91-92 (emphasis added).
In the petition for allowance of appeal that he filed with the Supreme Court of
Pennsylvania, Gray claimed that the Superior Court's determination that there was sufficient
evidence that Gray attempted to cause each victim a harm that satisfied Ostrosky's definition was
erroneous. ECF No. 17-1 at 115 ("if the court accepts the definition of 'harm' as outlined in
Ostrosky, it cannot be established that there was an attempt to cause harm.") The Supreme Court
of Pennsylvania declined to review that claim. ECF No. 17-1 at 165.
(d)
Gray's PCRA proceeding
In his PCRA proceeding, Gray argued, as he does here, that his trial counsel should have
objected to the§ 4953.1 Retaliation instruction and requested that "harm" be defined in
accordance with Ostrosky. Because that term was not defined, Gray contended, the jury was not
informed that it had to find that he attempted to cause a "specific and identifiable harm aside
25
from the threatening language itself." 15 ECF No. 17-1 at 249. If his trial counsel had objected to
the instruction and proposed one that cured its defect, Gray argued, there is a reasonable
probability that the jury would have acquitted him on the § 4953.1 Retaliation counts because
there was "no evidence of. .. attempted harm with respect to the judges and prosecutors as
recipients of threatening letters." ECF No. 17-1 at 250.
The PCRA court denied this claim, and the Superior Court affirmed, adopted the PCRA
court's reasoning in full, and determined that Gray was not prejudiced by his counsel's alleged
deficient performance. ECF No. 17-1 at 301-03.
(2)
Analysis
The Superior Court concluded that Gray was not prejudiced by his trial counsel's failure
to object to the § 4953 .1 Retaliation instruction because the evidence was "overwhelming" that
his "conscious objective was to cause his victims to live in persistent fear for their own lives or
their and their families' lives." ECF No. 17-1 at 303. It pointed out that each of Gray's letters
"were graphic and explicit; they depicted brutal methods of physical and sexual assault that even
[Gray] ... described as 'very shocking' and 'malicious."' Id. Because it concluded that "there was
no question that" Gray "was attempting to cause his victims extreme psychological and
emotional harm," the Superior Court held that Gray "failed to establish he was prejudiced by the
lack of a more specific harm instruction." Id. (emphasis added).
15
Gray also argued in his PCRA proceeding, and again to this Court, that the trial court's instruction
permitted the jury to convict him of§ 4953.1 Retaliation if it found that he "attempted to threaten." ECF No. 17-1 at
246; id. at 247 ("The instruction given actually permits the jury to convict Gray for 'attempting to threaten."')
(emphasis added). In actuality, the trial court expressly instructed the jury that in order to find Gray guilty of
§4953.1 Retaliation, it had to find that Gray "harmed or attempted to harm [the victim]" and that he "did so by an
unlawful act." SCR at 976. It did also instruct that the jury had to find that Gray "attempted or threatened to use
force, violence or deception upon [the victim]," id. (emphasis added), but this portion of the instruction was
pertaining to the grading of the offense and was in accordance with § 4953. I (b ). In any event, the Superior Court
denied Gray's claim that his trial counsel was ineffective for failing to object to, and cure any deficiencies in, the
§ 4953.1 Retaliation instruction because it determined that, even if the instruction was erroneous, Gray did not
establish that he was prejudiced. ECF No. 17-1 at 301-03.
26
The Superior Court's adjudication withstands review under § 2254( d)(l )'s "contrary to"
clause. Unlike his previous claim, there is no reason for this Court to question whether the
Superior Court actually applied Strickland's prejudice standard when it evaluated this claim.
Therefore, to prevail on this claim, Gray must show that the Superior Court's decision that he
was not prejudiced by his counsel's failure to object to the § 4953.1 Retaliation instruction was
an "unreasonable application of' Strickland.
Gray has not met his burden. In both Gray I and Gray II, the Superior Court concluded
that the threats Gray made to the judicial and prosecutorial victims were so horrific, and
communicated with the purpose of instilling constant fear in the victim, that his conduct fell
within the definition of the "attempts to harm" element of the offense of§ 4953.1 Retaliation.
This Court must accept the Superior Court's decision in this regard, as it is based upon its
interpretation of state law and, as such, is not subject to review by this Court. Priester v. Vaughn,
382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot 'reexamine
state court determinations on state-law questions."') (quoting Estelle v. McGuire, 502 U.S. 62,
67-68 (1991)). The Superior Court in Gray II determined that Gray was not prejudiced by his
counsel's alleged deficient performance in failing to cure any deficiency in the § 4953.1
Retaliation instruction because it was reasonably probable that the jury still would have
convicted him on each count of that offense due to the overwhelming evidence that he attempted
to harm the victims. Its adjudication was not "so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement." Richter, 562 U.S. at 103. Therefore, it was not "an unreasonable application of'
Strickland's prejudice prong.
27
In actuality, Gray's issue is with the Superior Court's application of Ostrosky to the facts
of his case, but it is not for this Court to decide whether the Superior Court's adjudication was in
accordance with Ostrosky. This Court's task is determining only whether the Superior Court's
decision was "an unreasonable application of' United States Supreme Court precedent
(specifically, of Strickland's prejudice prong). It is worth noting again, however, that in the
petition for allowance of appeal that he filed in his direct appeal, Gray argued that the Superior
Court misapplied Ostrosky, ECF No. 17-1 at 115, and the Supreme Court of Pennsylvania
declined to review that claim. ECF No. 17-1 at 165.
Gray also argues that the Superior Court's decision in Gray II was inconsistent with its
earlier decision in Commonwealth v. Walls, 144 A.3d 926 (Pa. Super. Ct. 2016). Even if Gray's
argument had merit (and this Court is not concluding that it does) he cannot receive federal
habeas relief on the basis that the Superior Court's adjudication was inconsistent with another
state-court decision. 16 Rather, he must show that its adjudication was "an unreasonable
application of' Strickland's prejudice prong, and he did not meet his burden here. Moreover, as
the Respondents argue in their answer, Walls merely applied the analysis of§ 4953 set forth in
16
Jn Walls, the Superior Court held, inter alia, that Ostrosky's definition of harm applied to the§ 4953.1
Retaliation statute. That holding is consistent with the Superior Court's decisions in Gray I, which did not dispute
that Ostrosky applied to § 4953.1, but held that there was sufficient evidence that Gray attempted to "harm," as that
term is defined by Ostrosky. In Walls, the defendant encountered an assistant district attorney at a store, accused her
of causing his grandmother's death, and told her "that she would be next." 144 A.3d at 931. The defendant "never
made physical contact with [the victim] and she sustained no injuries resulting from her interaction with" the him.
Id. The Commonwealth argued that "placing [the victim] in fear and causing her to seriously reassess her career as a
prosecutor" qualified as "harm." Id. at 933. The Superior Court disagreed, explaining that "[t]he statute specifically
requires some objective harm separate and apart from intimidation and psychological harm that resulted from any
unlawful act. Thus, for the same reasons expressed by our Supreme Court in Ostrosky, we hold that the harm
required under section 4953.1 is not satisfied by the mere showing of mental or psychological harm." Id. at 935-36.
It also rejected the Commonwealth's argument "that even under our interpretation of the harm requirement, [the
defendant] attempted to harm [the victim]" because "he took a substantial step towards killing" her. Id. at 936. The
Superior Court found that "[t]here is no support in the record for this assertion. [The defendant] never took a
substantial step towards harming [the victim]. He made the relevant threat as he was backing away from [her]. He
did not try to approach or harm her after he made the threat .... Thus, we conclude that [the defendant] did not take a
substantial step towards harming [the victim]." Id.
28
Ostrosky to §4953.1. In Gray I, the Superior Court distinguished Gray's case from Ostrosky,
finding that Gray's conduct was so much more horrific that it demonstrated a specific intent to
cause objective harm to each victim beyond concern or intimidation, thus bringing Gray's
conduct within the ambit of§ 4953.1. ECF No. 17-1 at 91-92.
Based upon all of the foregoing, Gray is not entitled to habeas relief on this claim.
Because jurists of reason would not find it debatable that this claims lack merit, the Court will
not grant Gray a certificate of appealability on it. 17
C.
Failure to Object to the Jury's Use Of the Letters During Deliberations
In his final guilt-phase claim, Gray contends that his counsel provided him with
ineffective assistance for failing to object to the trial court's decision to allow the jury to possess
the threatening letters during its deliberations.
(1)
Background
At Gray's trial, all of the threatening letters were read to the jury. One of Gray's defenses
was that he did not write them, and he testified that his real signature, as evidence in the
documents admitted as Commonwealth exhibits 23 and 25, did not resemble the signatures
appearing on the letters. Hoden attempted to bolster this portion of Gray's defense by stating
when he testified that he (Hoden) had written all the letters and that he had forged Gray's
signature. In his closing argument, the prosecutor asked the jury to compare the handwriting on
the letters and the envelopes in which they were sent against the handwriting samples that were
unquestionably Gray's. SCR at 949-50.
17
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a
district court's disposition of a habeas petition. 28 U.S.C. § 2253 ("A certificate of appealability may issue ... only if
the applicant has made a substantial showing of the denial of a constitutional right."). Where the district court has
rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,484
(2000).
29
Before the jury retired to deliberate, the trial court explained that it would permit the
letters to go out with it. Gray's trial counsel did not object. In his amended petition for PCRA
relief, Gray argued that his counsel was ineffective for failing to object on the grounds that the
trial court's decision violated Rule 646(C) of the Pennsylvania Rules of Criminal Procedure. ECF
No. 17-1 at 170. That Rules provides, in relevant part, that " [u ]pon retiring, the jury may take
with it such exhibits as the trial judge deems proper, except as provided in paragraph (C)."
Pa.R.Crim.P. 646(A). Paragraph C provides, in relevant part, that "[d]uring deliberations, the
jury shall not be permitted to have: (1) a transcript of any trial testimony; [or] (2) a copy of any
written or otherwise recorded confession by the defendant[.]" Pa.R.Crim.P. 646(C). Gray argued
that the letters should not have been allowed to go out with the jury since they "effectively
provided a transcript of trial testimony[,]" and also because they could be deemed to be a
confession by him. ECF No. 17-1 at 170. He also argued that the trial court's decision violated
his due process rights, arguing that the letters were so inflammatory that they would have biased
the jurors, rendering his trial fundamentally unfair. Id.
The PCRA court denied relief on this claim because it found no merit in either of the
grounds that Gray contended his counsel should have raised in objection to the trial court's
decision. It first explained:
As a general rule, evidence, even when relevant, should not be admitted if
its probative value is outweighed by the danger of unfair prejudice, which occurs
where the nature of the evidence is such that it has a tendency to inflame the jury
and cause it to render a verdict based on something other than the relevant legal
propositions. E.g., Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa. Super.
2014). Rule 646 merely augments that long-standing principle, its purpose being
to avoid having juries overemphasize the weight and credibility of evidence in
their possession while minimizing the value of other evidence simply because its
is not in front of them. [Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super.
2012)]. Consistent with the admissibility analysis, therefore, the question when
deciding whether a jurist abused his discretion in sending certain evidence to the
30
jury room is whether the defendant was prejudiced because of it. Id. In this case,
the answer is a resounding "no."
ECF No. 17-1 at 207-08. The PCRA court then concluded that the letters did not qualify as items
prohibit by Rule 646(C)(l) or (2) because they were not a "transcript of any trial testimony[,]" or
confessions. ECF No. 17-1 at 208 (the letters "established the corpus of the crimes charged, not
admissions that Gray wrote any of them.") The PCRA court also rejected Gray's argument that
the trial court's decision rendered his trial fundamentally unfair, explaining:
Insofar as Gray insisted that he had neither authored nor signed the letters
bearing his name, moreover, it was essential that the jury be able to compare them
with the undisputed samples of his signature. Accordingly, their probative value
far outweighed any potential for prejudice. In addition, Commonwealth exhibits
23 and 25 and Defendant's exhibit 2-a third sample of Gray's signature-were in
the jury's possession and served as continual reminders of Gray's testimony
denying the allegations against him. Consequently, the totality of the evidence in
the jury's possession adequately represented both parties' positions to the effect
that the letters were not prejudicial to the defendant.
Id. "Insofar as the underlying issue here is without merit," the PCRA court concluded, Gray's
trial counsel "cannot be deemed ineffective for failing to object when the Court indicated that it
would send the letters out with the jury." Id.
In Gray 11, the Superior Court adopted the reasoning of the PCRA court and held that "it
was proper" for the trial court "to provide the jury with the letters so that the jury might compare
them to a known sample of [Gray's] handwriting where [his] defense at trial was that the letters
had been forged and were not in fact his handwriting." ECF No. 17-1 at 305. The Superior Court
concluded that "trial counsel was not ineffective for failing to raise a meritless objection." Id.
(2)
Analysis
There is no basis for this Court to grant Gray federal habeas relief on this claim. This
Court is bound by the Superior Court's state-law determination that the trial court's decision to
permit the jury to possess the letters during its deliberation did not run afoul of Rule 646(C). See,
31
e.g., Priester, 382 F.3d at 402. As for the Superior Court's rejection of his argument that the trial
court's decision violated his right to due process, this Court can review that portion of its
adjudication, but it must do so under § 2254( d)(l ), and Gray has not demonstrated that the
Superior Court's determination was "contrary to" or an "unreasonable application of' Supreme
Court due process precedent.
And, finally, because Gray's ultimate burden is to prove that his Sixth Amendment right
was violated by his trial counsel's failure to object to the trial court's decision, he must
demonstrate that the Superior Court's rejection of this ineffective-assistance claim was either
"contrary to" or an "unreasonable application of' Strickland. He has not demonstrated that it was
either and, therefore, he is not entitled to federal habeas relief on this claim. Because jurists of
reason would not find it debatable that this claim lacks merit, he is not entitled to a certificate of
appealability on it.
IV.
Conclusion
Gray has established that his trial counsel rendered ineffective assistance for failing to
object to the trial court's instruction on the offense of§ 4953 Retaliation and that the Superior
Court's adjudication of this claims was an "unreasonable application of' Strickland. Therefore,
the Court will issue a conditional writ of habeas corpus. Within the time-frame set forth in this
Court's conditional writ order, the Commonwealth must retry Gray or, in the alternative, it may
opt to have the Court of Common Pleas vacate Gray's convictions on the offense of§ 4953
Retaliation (Counts 5 through 7) and resentence him.
An appropriate order follows.
Date: February%./, 2019
~i?aL,&Zlrfc(
'
RICHARD A.
United States Magistrate Judge
32
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDDIE RAY GRAY,
Petitioner,
V.
ERIC TICE, et al.,
Respondents.
)
)
)
)
)
)
)
Civil Action No. 17-71 Erie
Magistrate Judge Richard A. Lanzillo
ORDER
21
AND NOW, this_ day of February, 2019, in accordance with the Opinion issued on this
date, IT IS ORDERED that:
(1)
Eddie Ray Gray's request for habeas relief on his claim that his trial
counsel was ineffective for failing to object to the § 4953 Retaliation instruction is
GRANTED;
(2)
The execution of the writ of habeas corpus is ST A YED for 180 days from
the date of this Order, during which time the Commonwealth of Pennsylvania
may either: (a) retry him; or (b) have the Court of Common Pleas of Warren
County vacate his three convictions on§ 4953 Retaliation at CP-62-CR-264-2012
and impose a new sentence on his remaining convictions;
(3)
After 180 days, should the Commonwealth of Pennsylvania not carry out
either option set forth in paragraph 2, the writ will issue and the superintendent
respondent will be ordered to release Gray from the judgment of sentence
imposed by the Court of Common Pleas of Warren County at CP-62-CR-2642012;
(4)
Gray's request for habeas relief on his other guilt-phase claims is
DENIED and a certificate of appealability is DENIED with respect to each of
those claims.
~bz#a
United States Magistrate Judge
33
Service via CM/ECF to Respondents' counsel of record and by first-class mail to the following:
Eddie Ray Gray
JL6615
SCI Mahanoy
301 Morea Road
Frackville, PA 17932
Robert Greene, Esq.
District Attorney of Warren County
Warren County Courthouse
204 4th A venue
Warren, PA 16365
Office of the Court Administrator
Warren County Courthouse
204 4th Avenue
Warren, PA 16365
34
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