*1 HARTE, Appellant Robert J. CORPORA
BETHLEHEM STEEL Board of the
TION; Pension General Corporation
Bethlehem Steel
Subsidiary Companies; Michael P. Secretary, Employee Benefits
Dopera, Committee.
Administration 98-2052.
No. Appeals, States Court
United
Third Circuit.
March BECKER, Judge,
Before: Chief NOONAN,*
McKEE, Judges. Circuit PANEL PETITION FOR
SUR
REHEARING rehearing ap- filed petition for
The having been submitted
pellees in the decision
judges participated who court, panel rehearing is vacat- panel opinion The
is GRANTED. file a memorandum
ed. shall the con- responding to
withing two weeks Re- Petition for set forth
tentions
hearing. COSS, Jr., Appellant R.
Edward DISTRICT
LACKAWANNA COUNTY Attorney
ATTORNEY; General Pennsylva Commonwealth
nia
No. 98-7416. Appeals, Court of
United States
Third Circuit. 1, 1999
Argued March
Re-Argued Nov. Feb.
Decided * Noonan, designation. Cir- United States John Honorable Circuit, sitting Judge for the Ninth cuit *3 Siegel (argued), I. Fed-
Daniel Assistant Defender, District eral Public Middle PA, Attorney Pennsylvania, Harrisburg, Appellant. for Malley P. Assistant (argued), William O’ Scranton, PA, Attorney Attorney, District Appellees. for General, Fisher, Attorney D. Michael Jr., Deputy Ryan, H. Executive William General, Director, Law Attorney Criminal Graci, Division, Exec- Robert A. Assistant General, Attorney Law and Deputy utive Division, T. Ronald Wil- Appeals, Criminal General, liamson, Deputy Attorney Senior Section, Legal Crim- and Services Appeals Division, Attorneys Amicus Law inal Curiae, Attorney Pennsyl- General vania.
Argued March STAPLETON, RENDELL Before: ALDISERT, Judges Circuit 8, 1999 Nov. Re-Argued BECKER, Judge, Before: Chief MANSMANN, SLOVITER, NYGAARD, SCIRICA, GREENBERG, RENDELL, McKEE, ALITO, ROTH, STAPLETON, BARRY, ALDISERT and Judges. Circuit OF THE COURT OPINION ALDISERT, Judge. Circuit denial appeals Edward Coss for writ of Kulick, Appellant’s girlfriend, Sherry to U.S.C. 2254. He is pursuant filed Car- challenging roommate, Frieto, the merits of the state ol Anris Lisa Lisa’s presently he is incar- brother, conviction for which George Frieto. Most Instead, he contends that cerated. be- guests party at the consumed alcohol.1 It for which cause a former conviction he is roommate, seems that Ann’s Carol Lisa longer any parole no incarcerated or under Frieto, got pulling into hair contest with aby was tainted constitutional restraint Kulick, revelers, Sherry thereafter infirmity, and that conviction was improp- drinking, all of whom had been apparently erly when he was sentenced for considered picked grand donnybrook sides and a offense, his his second current term of Ann, hostess, all until Carol incarceration his constitutional violates everyone threw out of her house. rights. *4 outdoors, great Undeterred We must first decide whether the con- donnybrookers continued their carousing viction of offense was his first considered outside until the landlord and the neigh- sentencing judge the matter for police. bors called the cops When the incarcerated, presently thereby which he is greeting, arrived with their usual “Break it vesting subject jurisdiction matter in the up,” apparently there slight problem was a present District Court for his If petition. adjustment, attitude and cops say jurisdiction we find such we must then Appellant that couple punches threw a examine his first conviction to determine them, at one of landing himself in the local he whether was denied his Sixth Amend- lockup. Totally with dissatisfied the ac- right competent ment If counsel. we commodations, Appellant proceeded to agree with this contention then we must complaint by voice his destroying a radia- remedy decide what is available to him. tor, sink, light toilet and a fixture on this, ceiling his cell. For he was I. convicted of simple assault and institution- melancholy The chronicle of events al vandalism and sentenced to six months simple battery started with a assault and year to a on Appellant each offense. did place that took on June his time and was society released to on community City small of Dickson in Lacka- parole. County, wanna Pennsylvania, when the lo- police cal high were called to a Appellant school met with assigned his attor- graduation party ney, McGowan, at the home of Ann Carol Rose Ann on two occasions Frank, the sister of the then seventeen- before his trial. The District Court made year-old Appellant, finding Edward Coss. At the of fact that Appellant gave District hearing, testimony Court pre- was McGowan the names and addresses sev- Appellant sented that party attended the eral potential during witnesses their first brothers, along with his Jimmy Bobby, and meeting.2 gave Appellant Counsel no no- Although Appellant’s at story his trial dif- that he and McGowan also discussed the here, fered from the we facts recount possible names of meeting. witnesses at this clearly District Court credited this version of testify McGowan did not what occurred at events. meetings. testify these She did at the eviden- tiary hearing Appellant give did not her Appellant evidentiary hearing testified at the the names of witnesses he wanted her to meeting, that in the he first and McGowan subpoena, but then admitted that she did story, discussed "the hap- whole entire how it specifically Appellant’s remember case and pened, who was [and] involved.” His second testifying was general instead based on her meeting and final with McGowan to his practice public as a defender. motion, trial occurred after a severance re- questing charges that the in connection with Appellant The court also noted that even if simple assault be severed from filed those provide did not the names to McGowan at damage juvenile for the to the detention cen- time, cursory police this review of the re- ter, September alleges was filed 1986. He George at individual named was him that an contacted date but of the trial tice story, trial Jimmy corroborated one hour before the scene. approximately point Appellant party no stating at which that there was Carol begin, was to courthouse, stopping Ann’s, directly only at Carol Ann’s they drove were Jimmy at brother pick up camera, only to that he had give her house school. drinking Appellant and that did not been police not hit a officer. October began trial on
Appellant’s trial, the At the days. two and lasted ultimately presented to the charges Appellant, Officers who arrested officers crim- vandalism and jury were institutional Wrobel, that when and testified Adamitis assault, mischief, ar- simple resisting inal scene, individuals be- at the they arrived disorderly jury conduct. The rest and Ap- they grabbed scattering gan institutional vandal- Appellant convicted They ear. to his running he was pellant as ism, simple assault.4 criminal mischief screaming vul- Appellant testified January Appellant was sentenced They alcohol. tes- garities smelled year six months to one receiving that, being grabbed, tified after charge and six months simple and was Officer Wrobel began pushing vandalism year on the institutional to one testified that as They also then arrested. charges. The and criminal mischief *5 Appel- to attempted grab Adamitis Officer consecutively to ran assault sentence Bobby, Appellant punched brother lant’s vandalism and criminal mis- institutional punch face. This Officer Adamitis Ap- previously, As stated chief sentence. simple assault Appellant’s for basis for already served his sentence pellant has Wrobel testi- Finally, Officer conviction. convictions. these also George named that an individual fied 30, 1989, eight or August seven On Bobby. arrest attempts to hindered their from Appellant’s discharge months after testify Appel- on only witnesses to a certain parole supervision, Pennsylvania Jimmy.3 Appellant and lant’s behalf were “by group was beaten Peter Petrovich the incident on June Their accounts of men, Ap- including appellant.”5 five or six from the completely different 1986 were arrested and subsequently pellant was years later at the testimony adduced some as- aggravated one count of convicted on (1) hearing. They denied District Court battery and one count of sault and at Carol Ann’s party that there was to group in the effort part for his assault (2) Appellant night and that house that person. displeasure on Petrovich’s register (3) that They testified drinking. had been to a term of six was sentenced Appellant Jimmy Ap- and night question, on ag- years imprisonment twelve to driveway, in their sister’s pellant were Presently, he conviction. gravated assault Bobby, and had along with their brother charges a sentence based serving than fifteen minutes been there no more conviction, unrelated to his from this began arrived and police when two officers Although he has served (4) 1986 convictions. Bobby Appellant, that to and charge, simple assault the term for the anyone punch not curse or Appellant did that his claim is moot (5) Appellant urges did not know who he to en- charge was used because the assault referring to when he stated officer was and criminal 4. The institutional vandalism ports the names and would have identified Appellant’s destruction mischief result of some of these witnesses. addresses are not related to the detention cell and police outside Appellant’s interaction with the suggest Jimmy testi- 3.McGowan did not initiative, Instead, of Carol Ann’s house. fy. Appellant, on his own brought Jimmy and asked him to to the trial Coss, 695 A.2d did not testify. admitted that she 5. See Commonwealth McGowan 1997). (Pa.Super.Ct. Jimmy. prepare subpoena, interview or party hance his from the 1990 convic- there was a and Edward was present, police that someone had called the tion for which he is still incarcerated. thing police
and that the first that the did arrival upon approach Edward and II. place police him in one of the back of September Appellant On filed They police cars. testified that then pro petition se for writ Bobby, point George chased after at which an pursuant filed jumped on the back of one of the officers original on Novem- amended try attempt to hinder his to arrest 29, 1995, and a ber Second Petition Thus, Bobby. according to these wit- Corpus Writ of Habeas November testimony, nesses’ in the Appellant was petition Appellant claimed car police police the entire time the at- that he was denied his Sixth Amendment tempted Bobby. According to arrest right to effective assistance of counsel dur- Court, the District “McGowan’s recollec- ing proceedings leading up to his 1986 evidentiary tion of the case hear- [at on, among things, convictions based other ing] sketchy.”7 was somewhat con- She subpoena any counsel’s failure to during hearing ceded that she did not requested.6 witnesses he investigate surrounding the events Coss’ arrest, electing dispatch not to her investi- April evidentiary On an hear- gator to interview of the witnesses at ing was held to Appellant’s address inef- issue, by stating and defended her actions fective assistance of counsel claims. At that “Coss must have told her not to sub- hearing, each of the witnesses (June 10, poena Op. them.” Dist. Ct. Appellant stated he had identified to coun- 1998). sel, Ann, namely, Bobby, Sherry, Carol George, testified that McGowan did Following hearing, the District *6 not contact them regarding Edward’s trial Appellant’s Court denied ineffective assis- and that he did not police strike offi- tance of counsel claims. The court held that, Bobby, Sherry, cer. and George although testified failure McGowan’s to sub- Cottone, Appellant alleged Judge according also that his counsel was once Mr. Coss told empaneling jurors transcript, thinking ineffective for two adverse to the that he was about interests, this, Appellant’s failing appeal, they telling have the an but were him just distinctly, institutional vandalism and criminal mischief then I recalled. I do recall —I charges failing post-trial exactly, they they., advising dismissed and to file him —the me, way, okay? motions. The District Court dismissed these and he would not listen to and, other bases of ineffective counsel see When we wanted to file the Post-trial Motions V, that, Appellant appeal Section does not on he did not want them.... That is infra their dismissal. Now, may direct recollection. the other stuff general. be evidentiary hearing a review of From transcript, agree with we the District Court’s Q. McGowan, asking you Ms. what I’m memory characterization of McGowan’s of is, you, specifically, about do hav- remember evidentiary hearing, this case. At ing this conversation with Eddie Coss about McGowan testified: your testimony these witnesses or is that this Q. McGowan, you normally yourself? is how conduct your testimony, Ms. to- No, No, no, no, A. no. it wouldn't be. I day, par- base d on actual recollection of this case, case, peo- would have asked him what these about you testify- ticular the Coss or are these, ple, know, ing, upon what about what your general practice, based about these? You as a Defender, they doing you what were there how are employed Public when were or they the Public Defender’s Office? related to this? questioning part, yes, A. It would—it The continued with McGowan an- would be in and i part, portions swering questions regarding n no. Because certain that I’ve her failure to to, responded subpoena I have direct recollection. IAs the witnesses in the form of what said, I have direct recollection —once I looked she "would have” done or what Coss "must said, sentencing report, at the distinguished stating I had direct recollec- have” as from what tion, mean, exactly, transpired. what had she "did” or what Coss "said.” transaction, being these as one one inci objec- “fell below an these witnesses poena reasonableness,” dent, conviction, Appel- than one rather two. tive standard Therefore, prejudiced viewing that he was I will be the defendant prove lant failed to because the verdict McGowan’s failure with a record score of two rather different, given April not have been than three.” Pl.’s Ex. 3 at 5. On inconsistency the accounts of stated that in judge determining hand, and the and his on the one the sentence “we’ve taken into brother consider Ap- the other. police your presentence investigation, witnesses and the on ation ” District pellant appeals report your prior this decision ... record.... [and] Court, appeal that the District arguing on Pl.’s Ex. at 6. application preju- Court erred its are satisfied that We prong dice of the ineffective assistance judge for the 1990 conviction took into counsel test stated Strickland Appellant’s simple consideration
Washington, U.S. stemming conviction from the events of L.Ed.2d 674 25,1986. June
III.
TV.
inquiry
Our first
is whether the sentenc-
into
ing court at the 1990 conviction took
We must now decide whether the
consideration the 1986 conviction. The
subject
juris
District
matter
Court
Lackawanna
presentence report of the
petition.
over this
diction
habeas
Section
Ap-
indicated that
Adult Probation Office
jurisdiction
confers
United States
January
pellant had been convicted
petitions
District Courts to entertain
Vandalism,
1987 of Institutional
Criminal
persons
relief
was sen-
Simple
Mischief and
Assault and
“in custody”
who are
in violation of the
Simple
charge
tenced
Assault
“[o]n
or laws or treaties of the
Constitution
costs,
1 years plus
6 months to
consecutive
Supreme
Court has
United States.
to the Institutional Vandalism sentence.”
interpreted
mandating
2254 as
that the
Pl.’s Ex. 5 at 5. On March
custody” pursuant
be “in
petitioner
question
counsel raised the
Appellant’s
or
he seeks to attack
conviction
Appellant’s
whether
1986 convictions
filed. See Ca
the time his
misdemeanor,
should count as one
rather
*7
LaVallee,
234,
v.
391 U.S.
88 S.Ct.
rafas
Mecca,
2
A Mr.
than two. Pl.’s Ex.
at 5.
1556,
A habeas
At a continuation of the the next Tucker, 443, 404 view States v. U.S. day judge ruled that he “will 460 (1972), federally guaranteed in protecting 592 the Court courts
589, L.Ed.2d 30 in a prisoner rights.” could attack Evans v. Court Common held that allegedly Pleas, Pa., an proceeding habeas 959 County, federal Delaware F.2d conviction, (3d Cir.1992) if even he has 1227, unconstitutional (citing 1230 O’Halloran entirety resulting (3d Cir.1987)). the sentence 506, served Ryan, 835 F.2d conviction, if that conviction had “[ijnexcusable from the course, or inordinate de- Of present sentence. See also an effect on lay by processing the state in claims for (3d 72, Vaughn, 83 F.3d Cir. Young v. may remedy state effec- relief render the 1996) may that “a at (holding prisoner tively unavailable” and exhaustion- will be aby current sentence habeas tack his Fulcomer, Wojtczak excused. 800 F.2d constitutionality of an challenge to the (3d Cir.1986). 353, 354 if that conviction was expired conviction sentence”). to enhance his current
used § filing peti Prior to his tion, Appellant petition challenging had a Although Appellant already has pending his 1986 conviction under Penn the al resulting served the sentence from sylvania’s Hearing Post Act Conviction legedly unconstitutional 1986 convictions (PCHA), § seq. 42 Pa. et Cons.Stat. currently serving a sentence for an and is (amended 1988), approximately for seven that occurred in unrelated conviction years any activity. without Under these he contends the sentence his circumstances, the District Court excused adversely by 1990 conviction was affected requirement the exhaustion and we find (cid:127)the 1986 assault conviction. We Appellant no fault with that has decision. sentencing judge have concluded that the not, however, presented Pennsylva did, fact, Appellant’s refer to 1986 con nia state courts his claim that the invalid assaulting police viction officer in conviction was to enhance him for his 1990 used his conviction. attacking subsequent conviction in prior is thus con convic attempt in an to have his current being challenged underlying viction tion sentence, Nonetheless, which relied on his convic petition. we con tion, reevaluated. The District Court clude that this is not a situation which appropriately Appel therefore construed the District Court was faced with a mixed challenging lant’s the 1990 con petition necessitating dismissal under conviction, expired viction rather than his Lundy. Rose v. As was made clear Young, properly see 83 F.3d at Pennsylvania Supreme Court Com jurisdiction concluded that it had over his Ahlborn, monwealth v. 548 Pa. juris petition. appellate We have (1997), A.2d 718 collateral relief is not §§ pursuant diction to 28 U.S.C. available under either the Post Conviction Hearing Act or under the common law remedies of state habeas or coram *8 V. petitioner currently nobis for a who is not excuse, a valid a serving imprisonment Absent habeas a sentence of for petitioner present all challenge, must federal claims the conviction he wishes to even 2254(b); § 28 if petitioner state courts. U.S.C. contends that collateral conse 509, Lundy, Rose v. 455 102 quences U.S. S.Ct. stem that conviction. Ac 1198, 71 cordingly, clearly L.Ed.2d 379 “The exhaus insofar as state law fore requirement tion that state of Appellant’s ensures courts closes state court review claim, opportunity consequence” have the first to federal “collateral the Dis review challenges constitutional properly to state convic trict Court excused exhaustion preserves tions and of the the role state and entertained the claim on its merit.8 remedy 8. We view Commonwealth v. Ahlborn not as ment that there is no available state bar,” erecting “procedural present but as a state- for the claim that the sentence was
461
See,
Scheidemantel,
pre-AEDPA
e.g.,
requirements govern.
Gibson v.
805
Appel-
(3d Cir.1986)
135,
(citing Duck
obligated
F.2d
138
lant was
to
obtain certificate of
Serrano,
1, 3, 102
worth v.
S.Ct. probable cause in
to appeal
order
from the
curiam)).
(1981)
18,
(per
L.Ed.2d 1
70
judgment
District Court’s
dismissing his
corpus petition.
VI.
pre-AEDPA
certificate of
fil
Appellant submitted
Because
probable
require
cause did not
specifica
ings to the District Court both before and
placed
tion of issues and
the entire case
after the enactment of the Antiterrorism
before the court of appeals.
Ramsey
See
Penalty
and Effective Death
Act of 1996
Bowersox,
(8th
749,
v.
149 F.3d
759
Cir.
(“AEDPA”),
necessary
we think it
to brief
1998);
States,
Herrera v. United
96 F.3d
ly
governing
the law
discuss
action.
(7th
1010,
Cir.1996);
1012
see also United
brought
that the
We conclude
amendments
ex
Hickey
Jeffes,
States
rel.
v.
571 F.2d
AEDPA
apply
about
do not
to this case
(3d Cir.1978).
762,
contrast,
By
765-766
Appellant’s original petition
and amend
post-AEDPA
appealabili
certificate of
ment were both filed
to AEDPA’s
ty requires specification as to which issues
v. Murphy,
effective date. See Lindh
satisfy the standard set forth in 28 U.S.C.
138 L.Ed.2d
U.S.
2253(c)(2),i.e.,
those issues for which the
(1997);
Vaughn, 172
McCandless v.
F.3d
applicant
showing
has made a substantial
(3d Cir.1999);
United States v. Skan
right.
of the denial of a constitutional
In
dier,
(3d Cir.1997). Though
denied effective legal suming Appellant involves the that would have his contention still tes- cause way ineffective assistance of tified and have testified in the component of an would did, claim, plenary review. we exercise that he the District Court reasoned counsel Fulcomer, (3d Parrish v. 150 F.3d that the failure to call these witnesses was Cir.1998). Appellant. not to It reasoned prejudicial offered, testimony, only that if would their based on an ineffective To obtain relief jury suggested Appellant that claim, a petitioner counsel assistance of lying on the witness stand and that per- only not that his counsel’s must show Appellant during was drunk and excitable unreasonable, objectively formance was the incident. Because this case turned on prejudiced it his case. but also that credibility Appel- determination between Washington, Strickland v. U.S. officers, lant District and the Court 2052, L.Ed.2d 674 Appellant reasoned that could not have determined that his The District Court by prejudiced been counsel’s failure to call subpoena failure to the witnesses counsel’s witnesses who would have contradict- unreasonable, objectively but issue was facts, Appellant’s ed version de- Appellant denied relief because had failed jury.10 stroying credibility with the prejudice.9 to demonstrate The District Court thus concluded that the prove prejudice To under the outcome of trial would no have been of the Strickland test, prong second a different, is, Appellant that still .would defendant must “establish reasonable guilty assaulting have been of found probability sufficient to undermine —one officer, absent failure to counsel’s summon our confidence the outcome—that the other witnesses. jury’s verdict would have been different if not for counsel’s errors.” United v. We States disagree with the District Court. (3d Cir.1989). Gray, F.2d it Although unlikely that a court can certainty The District Court reached its conclusion determine with the result of the failure, Appellant proceedings that had failed demonstrate absent counsel’s we witnesses prejudice because the who testi must examine the “breadth of the evi- evidentiary hearing painted fied at the a dence” and determine whether the case completely picture way different of the incident would have out the that it if come did United leading Appellant’s from present. arrest that told witnesses had been (3d brother, Kauffman, at States v. by Jimmy, Appellant and his 109 F.3d Cir.1997). evidentiary hearing testimony trial. The Having examined the evidence case, night including evidentiary made clear of the inci hear- Appellant drinking ing transcript, dent had been at a we that a conclude reason- party to be up probability broken able exists that had counsel witnesses, police. a far cry subpoenaed This version events is calm, Appellant’s testimony trial guilty assaulting have been found quiet visit him and his brother sabo- the officer.
9. We are not asked to review the issue of
10. The
District Court also considered that
Bobby's testimony
Carol Ann and
would have
justifi-
reasonableness
counsel’s actions as
suspect
they
siblings,
been
since
are Coss’
strategic
Appellant’s
able or
decisions.
attor-
Sherry’s testimony
would have been sus-
ney claimed no tactical merit to her failures
pect
girlfriend,
since she was Coss’
and that
except
say
that she must have done what
George
testimony,
seemingly
Frieto's
while
Appellant
nesses;
subpoenaing
wanted in not
wit-
Appellant in that he
beneficial to
testified that
does the
nor
Commonwealth contest
officer,
it was he who attacked the
is also not
finding that
the District Court’s
her conduct
testimony
inconsistent with the officer’s
objective
“fell below
standards of reasonable-
George,
an individual named
in addition to
ness.”
Bobby’s
Appellant, tried to hinder
arrest.
*10
failure to con-
failure
call
As a result of counsel’s
witnesses should be assessed
investigation
duct an
into the events
in the context
the
testimony pre-
other
arrest, only Ap-
surrounding Appellant’s
sented
the
witnesses.” Dist. Ct.
defense
younger
Jimmy
and his
brother
pellant
(June
1998)
atOp.
(emphasis
add-
in
There can
testified
his defense.
be
ed). The District
phrased
Court
as the
Appellant
Jimmy
little doubt
that
question:
critical
would the result of the
try
decided to
to conceal the fact that
if,
trial have been
different
instead of
they
drinking
evening
had been
that
be- only Appellant
Jimmy
testifying, the
they
underage.
were both
Re-
cause
other four witnesses had also testified in
to lie
gardless
Appellant’s
motivation
defense? In
framing
ques-
Coss’
so
provok-
about
context of the incident
tion, the court
Ap-
assumed not
that
arrest, however,
ing both he and pellant would still have testified on his own
Jimmy
Appellant
that
did
testified
not behalf, but also that he would have told the
police
assault a
officer. At the eviden-
same tale that he did at trial.
tiary hearing
investigate Appel-
held to
Strickland teaches that a court consider
claims,
lant’s ineffective counsel
Carol
“the totality of the evidence
before
Ann, Bobby, Sherry and
all
George
tes-
judge
jury” in determining prejudice.
or
that
was a
at
party
tified
there
Carol
fornia
course,
(9th Cir.1994).
defense,
Of
counsel can-
because she did not interview these
rely
proper
say
on Bland to
that it was
witnesses to ascertain
inconsistencies.
testimony
her to not offer the
witnesses’
deny
opportunity
it the
always
correct
con- of is
respondent.
The teach-
infirmity
previous
ings
stitutional
case.
of Tucker reflect
exception
one
*12
He relies on a
general
series of cases which we
rule of permitting the state to-
now examine.
correct
the constitutional
in
infirmity
a
subsequent sentence enhancement case— n
Appellant’s primary reliance
is
where the federal court
the authority
lacks
Tucker,
teachings of United States v.
404
to afford the state
opportunity
to cor-
443,
589,
92
30
U.S.
L.Ed.2d 592
rect the
infirmity
constitutional
because no
(1972). We do not deem this to be an
state officer
a party
is
to the litigation.
analogue
appropriate
to this case or
We now turn to other exceptions reflected
other federal habeas case brought under
in the cases.
By
§
caption
2254.
content United
States v. Tucker
was not a habeas
This court has held that where a return
§
brought
case
under
2254 based on a
to the state for additional proceedings
state conviction. There the defendant
virtually
“would be
impossible” under the
a,
seeking post conviction
circumstances,
relief from
the federal court
in a
feder-
pursuant
§
§
al conviction
to 28 U.S.C. 2255.
2254
may
case
simply order re-sentenc-
This is a distinction with a
ing
fundamental
subsequent
conviction without
difference.
possibly
The Court could not
affording the state an opportunity to cure
condition relief on affording any
previous
state the
constitutionally infirm convic-
retry
opportunity to
the defendant
Commonwealth,
because
tion. See Clark v.
892
(3d Cir.1989).
no state
parties
officials were
to the law- F.2d 1142
Clark
awas
de-
wardens,
suit. No state
custodians or privation
process
of due
case lodged
state officers were respondents or
against
prior
defen-
a
conviction that served to
§
in
petition.
dants as
the case of a
enhance the sentence
subsequent
for a
of-
action,
In bringing his
Tucker was attack-
fense.
gravamen
petitioner’s
ing
imposed
federal sentence
complaint
1974,
was that
in
when Clark
District Court for the Northern
years
District of was 17
age,
he was denied a
juvenile
California that had been enhanced on the
hearing
court
to determine wheth-
basis of invalid state court convictions
er he
juvenile
should
been tried as a
from Florida and Louisiana. Because the
or as an adult. We determined that this
petitioners
Court had no state officers as
violation,
denial constituted
process
a due
respondents
it,
or
before
the Court lacked
reversed the
granted
district court and
power or authority
give
option
relief, and,
to a
without elaboration at
this
state court in
retry
Florida or Louisiana to
in
point
opinion,
ordered that “the
prevent
defendant. To
the “erosion of matter must be remanded for re-sentenc-
the Gideon principle”
right
ing
on the 1979 conviction without consid-
effective
assistance
counsel is funda-
eration of the
offenses.”
F.2d at
mental, the
Nevertheless,
Court had no alternative other
opinion,
our
earlier
than to
order
the defendant be
recognizing
re-
that at the time we heard this
sentenced
the federal conviction
appeal
petitioner
with-
years
was 31
old,
out reference to the invalid state court
there
sup-
statement of reasons
contrast,
convictions.13 In
every
porting
our determination of
proper
petition brought
§
under
an officer
relief. Although set forth in our discus-
political
of the state or a
portion
subdivision there-
sion of
Pennsylvania
Post-
specifically
The Court's discussion
sentencing judge
tar-
have been
if the
different
geted
to a 2255 case:
respon-
had known that at least two of the
question
real
previous
[T]he
here is not whether the
dent's
convictions
been un-
pro-
results of the
Florida
Louisiana
constitutionally obtained.
ceedings might have
been different if the
(emphasis
[T]he State with
her
of the constitutional
power
not
allowed to make
defense because
should
be
instance,
only con-
In this
repeated attempts to convict an individu- violations.
offense,
unconditional
thereby
remedy
sub-
stitutional
would be
alleged
al for an
embarrassment, expense
granting of the writ.
jecting him to
parallel
no
the case at
respondent’s
There is
between
least
prior
[some]
unconstitutionally
convictions had been
and those cases where courts have
ob-
bar
Tucker,
tained.” United States v.
that states should not be enti-
U.S.
determined
NYGAARD,
Judge, dissenting.
Circuit
Coss,
wealth v.
449 Pa.Super.
674 A.2d
(1995)).
313
agree
I
with much
majority’s
Indeed,
opinion.
agree
I
that Coss was
At his resentencing hearing, Coss chal-
denied effective
assistance
counsel dur-
lenged
gravity assigned
both the
to his
ing
assault,
simple
his 1986 trial for
conviction,
aggravated assault
and its en-
subsequent
that his
conviction on that
hancement based on his criminal record.
charge
constitutionally
is
infirm as a re-
sentencing
agreed
See id. The
court
part
I
company
majority
sult.
with the
his three misdemeanor
convictions
question
over the
and,
whether
chal-
all arose from the same action
accord-
lenged
“might
sentence
have been
ingly,
prior
differ-
reduced his
record score from
ent if the sentencing judge had known that
adjust-
See id. The effect of the
retry
opinion
14. Even if the Commonwealth elects to
no
on whether such a retrial would
Coss,
regard-
he will have to be
Pennsylvania
re-sentenced
be consistent with
law. More-
over,
less of the outcome. Even if a valid convic-
if there
a conviction
on retrial of the
forthcoming
charge,
offense,
tion is
on the earlier
Jeopardy
earlier
the Double
Clause
nothing changes the fact that his current sen-
requires
already
that the time he has
served
tence was enhanced
an unconstitutional
original
on
1990 sentence be credited
violation. A vacated conviction is not the
against the new sentence. North
Carolina
same conviction as one
occurs
after vaca-
Pearce,
711, 718-719,
395 U.S.
89 S.Ct.
Thus,
conviction,
tur.
in the event of a valid
trial,
(1969) ("If, upon
I’ve taken into consideration the state- incidents, separate pleaded guilty he has to counsel] ments and seri- [defense being disorderly charged conduct after and nature of the crime involved ousness offense, here, hindering as with being and of with that as well protection the well apprehension, pleaded in 1989. He also people community, who live in our record, guilty possession of a controlled sub- your prior possibili- criminal rehabilitation, being charged ty your the testi- stance in 1992 after with and offense, endanger- and with reckless mony that I’ve heard. I was the trial in I ment judge, and take into consideration the testimony from the trial. addition, Coss’ record at the time of 4-5, Sentencing Transcript of at 03/27/1996 sentencing included:1
reproduced
Supp.App.
in
at 243-44.
(1)
making
a 1986 arrest for
terroristic
deny
the relief he
Coss
threats;
merely
prior
seeks
because his
criminal
(2)
aggravated
for
only
many
record was
one of
factors on
a 1988 arrest
assault;
sentencing
simple
which the
court
its deci-
and
based
Straw,
law,
(citing
Pennsylvania
238 Pa.Su
Under
court
Commonwealth
535,
(1976);
may
prior
per.
trolled substance sentencing court would not have sentenced differently Coss had it known that one (4) assault, aggravated arrest for conviction infirm, was constitutionally I re- assault, simple recklessly endanger- spectfully dissent from majority’s con- ing another and person disorderly contrary. clusion to the conduct; (5) aggravated another arrest for Judge joins Roth in this dissenting opin- assault; and ion. (6) yet another 1989 arrest for simple assault as well for making terror- RENDELL, Judge, Circuit concurring threats;
istic in part and dissenting part: (7) a 1990 arrest for simple assault and I concur with reasoning and result of theft; retail majority opinion in all respects except (8) a 1990 arrest for retail theft and its discussion of the relief to be afforded to
criminal conspiracy; Eddie Coss as set forth at Part VIII. I See id. at 5-7. believe that Part VIII of the majority opinion proceeds from an prem- erroneous
The 1996 sentencing court was intimate- ise “general about a rule” to be followed in ly Coss, familiar with the charges with challenging cases a sentence en- convicted, which he been and with his hancement, then, ante at as a criminal record. It opportunity had the result, asks the wrong question about what hear the against evidence Coss at trial. It appropriate relief particular had the opportunity to hear from at Coss (1) case.1 I that: “general conclude sentencing. Sentencing Transcript See favoring rule” retrial does not exist 4-5, reproduced Supp. 04/28/1993 subsequent cases; sentence enhancement .App. at 199-200. importantly, Most it had (2) for prudence comity, reasons of relatively rare opportunity reconsid- better alternative this case is to condi- er its original decision when the tion our writ Commonwealth Yet, appeal. vacated on the court *16 resentencing court’s Coss on his 1990 con- impose chose to the same sentence it had (3) viction; and such a writ would not initially imposed, finding “no reason” for a provide an untoward “windfall” to peti- reduction. Sentencing Transcript See tioner. 26, reproduced in Supp.App. 03/27/1996
at 244. majority’s remedy The discussion of be-
In finding no reason to
gins
unobjectionable
reduce Coss’
with
proposition
sentence,
the court found it “indicative
that
normal relief that
grant
“[t]he
we
in
actions” that he
[Coss’]
would “con-
habeas
is to order that the habeas
freed,
tinue to break the
petitioner
subject
law.” Id. Given the
right
be
extensive and often violent
society
nature of Coss’
timely
to correct in a
manner the
record,
criminal
I find it impossible to
through
constitutional error
a new state
sentencing
conclude that the
court’s con- proceeding.” Ante at 464. I take no issue
for
being
people
statement,
cerns
“the well
who with this
nor do I disagree with
community”
live in our
that,
and the “possibility
majority’s
§
assertion
in
cases,
[Coss’] rehabilitation” would have been
there is a “general
permit-
rule of
allayed by the
ting
omission of his 1986 convic-
the state to correct the constitutional
tion for
assault from his criminal
infirmity,” and that
this rule extends to
question,
give
1. This "nice”
see ante at
is:
we
should
a free ride and
here,
give society,
“Should we
the Common-
second
sentence declared invalid
Pennsylvania,
right
wealth of
to cure the
simply because he is a recidivist?”
Sixth Amendment constitutional defect or
“permit
that we should
the state
agree
enhancement cases as
subsequent sentence
infirmity,”
the constitutional
be-
Ante at 464.
correct
other habeas cases.
well as
goal
accomplished
that
to be
lieve
However,
majority
an
then makes
conditioning our writ on the state’s
leap
logic
that I cannot
unarticulated
resentencing
in
Coss
a manner consistent
transforming
general
its
rule
accept,
knowledge that his
convic-
with the
permitted
be
to correct its
the state should
as-
tion was obtained without the effective
“general
rule”
error into
constitutional
writ,
of counsel. Such a
which
sistance
permitted retrial
that the state should be
instruct
the state to release Coss
method for this correction whenever
as the
him in a
unless it resentences
fashion
simply
This latter rule
does not
possible.
accords with our determination that
true,
observes,
majority
It is
as the
exist.
sentencing
as a
use of the 1986 conviction
in
ordinary
in an
habeas case—one
improper
and rendered his
enhancer
gives
confinement that
rise to
which the
unconstitutional,
par-
is an exact
sentence
directly from
petition
stems
ordinary
in an
allel to the conditional writ
alleged
that is
to be deficient—
conviction
case,
habeas
which instructs the state
normally
a conditional
granted
the writ
it
petitioner
repeats
release the
unless
retry
allowing
writ
the state to
the defen-
way
in a
that accords
offending process
because,
garden-variety
dant. This is
reviewing
determination
with
court’s
cases,
infirmity”
the “constitutional
habeas
aspect
process
that some
of that
was con-
of lies
the conviction
being complained
stitutionally infirm.
contrast, in
challenged.
a situa-
being
majority
such
enhanced sen-
asserts that cases
involving
improperly
tion
an
tence,
exceptions
are
to a
it is the latter sentence itself that is Tucket2 and Clark3
jurisdiction
general
per
rule that the state should be
for our
and that is
basis
possible,
mitted retrial whenever
even
infirmity” complained
the “constitutional
Cook,
enhancement
scenario.
Maleng
of. See
(1989)
However,
(per
majority
has not been able
sumed
cases,
indeed the
habeas to reduce the
may
invoke federal
tence enhancement
spe
has
Appeals
lengthened
Circuit Court
to the extent it was
Seventh
sentence
holding
conviction”).
Tucker’s
to extend
cifically read
prior
unconstitutional
See, e.g.,
v. Duck
§
cases.
Crank
2254
least,
very
I think it clear
At the
Cir.1990)
(7th
worth,
F.2d
any
of a
dispels
case law
notion
appellate
(“Tucker
of con
holds that ‘misinformation
pre-
retrial on the
“general
favoring
rule”
is,
reliance
magnitude’
stitutional
—that
in an enhancement case.
vious conviction
re
conviction—authorizes
prior
an invalid
resentencing
it
clear that
equally
I think
sentence.”) (citation
current
lief from the
case,
remedy in
appropriate
is the
this
Perrill,
omitted);7
902 F.2d
Feldman v.
judicial
implicating both
several reasons
Cir.1990)
(9th
if
1445, 1449-50
(stating that
First,
I
comity.
am not
prudence
is indeed
challenged prior conviction
can afford the
convinced that we even
flawed,
remedy
appropriate
shall be
suggested by
majority. Having
relief
Parole
for a
remand to the
Commission
original
parole el
his entire sentence on
recomputation
petitioner’s
served
conviction,
offense without con
not “in
igibility
clearly
on the later
Coss
conviction);8
challenged
Maleng,
sideration of
see
custody”
charge,
on that
Farley, 25 F.3d
see also Smith v.
and therefore
U.S.
S.Ct.
Cir.1994)
(7th
that a
(stating
n. 10
remedy
would not have recourse to
challenging wrongly
enhanced
petitioner
at this
through
petition
retrial
a habeas
seeking to set aside
sentence would not be
It
to me that we have the
point.
is unclear
constitutionally
as
original
his
conviction
relief, the
power
provide
that same
ben-
invalid,
merely
challenging
be
but would
-peti-
efits of which are unavailable
constitutionality of his conviction as
“the
petition challenging
in a
tioner
sentence”).
present
used to enhance
sentence, to the re-
subsequent enhanced
fact,
has described the
In
Justice Souter
I
petition.
in that same
spondent
law” in this area
appellate
“uniform
case
federal case that addresses this
found no
wrongly
that the
enhanced
suggesting
question,9 and believe
we should
conviction,
sentence,
is the
not the
unnecessarily
this issue
reach out
decide
petition.
Custis
target of the habeas
See
the well-estab-
when we can instead choose
States,
485, 512, 114
United
option
simply conditioning
our
lished
(1994) (Souter,
1732, 128L.Ed.2d 517
resentencing
writ on the Commonwealth’s
J.,
(joined by Blackmun and
dissenting)
the 1990 conviction.
Coss on
JJ.)
Stevens,
out that the Custis
(pointing
addition,
comity
I believe that
uni
“does not disturb
majority’s holding
argue in
majority
raised
holding
case
that an concerns
appellate
form
law
Crank,
case,
proce-
leading
§
treatise on federal habeas
is a
9.A
like the instant
prior, alleged-
open
very
Maleng
case in which both
left
dure notes
ly
subsequent
conviction and the
sen-
Randy
flawed
question.
S. Liebman &
See 1 James
on that conviction as an
tence that relied
Hertz,
Corpus
Federal Habeas
Practice
(both
state offenses
enhancement were
initial and
1998)
8.2c,
(3d
at 333 n. 20
ed.
Procedure
were
subsequent
Crank convictions
question
open
("Maleng
[the]
...
left
...
convictions).
Indiana state
whether,
voiding
process of
a current
in the
the basis of an uncon-
sentence enhanced on
Feldman,
Tucker,
Although
addresses
like
stitutionally imposed prior conviction as to
previous
a flawed
state conviction
use of
terminated,
custody
prior con-
has
which
nothing
subsequent
proceeding,
in a
federal
voided,
may
depriving
be
thus
it
viction 'itself
reaching
suggests
back to the
in Feldman
consequences in addition to
collateral
other
original
appropriate
would be
conviction
being
currently
effect on the sentence
its
Ninth
enhancement case. The
493-94,
served.”) (citing Maleng, 490 U.S. at
Appeals
that Feldman
Circuit Court of
noted
1923).
Maleng,” a
"indistinguishable
Feldman,
§ 2254
473
See,
resentencing.
Crank,
It
relief limited to
initial state conviction.11
e.g.,
favor of
(“We
to
difficult
determine what ramifications
is
1091
F.2d at
did not decide in
by
majority
mandated
the
will
the relief
Lowery
the
whether
federal court could
I
the 1986 state conviction.
am
have on
invalidate the
pur-
conviction for all
give
to
exactly
not certain
what it means
only
poses
purpose
or
for the
partic-
of the
“opportunity”
a defen-
retry
state an
to
served,
ular
being
impor-
sentence then
an
context;
in this
the ma-
dant
cannot fit
if
tant distinction
the
rendering
state
the
proposed
proper
jority’s
relief into
original judgment
an
retains
in its
interest
parlance.
vacating
procedural
Are we
the
Smith,
validity.”);
n.
F.3d at
underlying 1986 conviction?
we over-
Are
(finding
“merely ... challenging]
that
the
It
turning it?
seems that
order to allow constitutionality of [the
conviction
earlier]
Coss,
retry
to
essential-
the state
we must
present
as used to enhance his
sentence”
conviction,
ly declare the 1986
which is not
comity
implicates
less directly than would
subject of the current
invalid
petition,
the
“set[ting] aside
conviction as
the[earlier]
me a
purposes.
for all
This seems to
far
invalid”). Furthermore,
constitutionally
more extensive intrusion on the state’s
noted,
previously
full
Coss has
the
served
process than the
of
criminal
alternative
on him
imposed
by
sentence
the Common-
declaring that that
can-
merely
conviction
conviction,
wealth
the 1986
reducing
at
be used
enhance the sentence
any possible
might
interest that the state
Thus,
issue in Coss’s habeas
petition.
have in
him.12
retrying
principle that federal habeas courts should
majority’s
comity
contention that
is
grant
“require[s]
the relief that
generally
by
fostered
its choice of relief
further
is
intervention
crimi-
the least
into the state
by the
weakened
fact that
the Common-
Frank,
nal
process,” Henderson
Pennsylvania
already
wealth of
has
(3d
Cir.1998),
suggests
F.3d
validity
to address
of
opportunity
conditioning
resentencing
the writ on
is
conviction,
the 1986
and
do so.
declined to
option
Several
appropriate
here.10
majority opinion
As Part
of the
V
discuss-
by
Circuit
cases decided
the Seventh
es,
at
Appeals
presented
see ante
Coss
explicitly
Court of
found that
by
with an attack
his 1986
comity
implicated
concerns are
less
re- Commonwealth
on
by
than
reopening
petition pursuant
conviction in
Penn-
assertion,
Contrary
majority’s
charge regardless
tencing
the 1990
of the
on
guidance
pursue
Henderson’s
federal habeas
decision
Commonwealth’s
whether to
"first,
power
seemingly
charge,
regardless
is
limited
to a deter-
the 1986
retrial on
of whether there
an im-
of such a
occur.
mination
has been
outcome
retrial should it
Thus,
by
proper detention
state
467 n. 14.
virtue of the
court
See ante at
the limited intru-
second,
process
judgment;
presented by
if we find such an
sion on state
detention,
illegal
ordering
resentencing
regardless
the immediate
will occur
which
prisoner,
on the
to fashion—the
release
conditioned
relief we choose
relief ordered
opportunity
majority
state's
to correct constitutional
as well as the
that I
relief
propose.
that we conclude occurred in
initial
errors
Henderson,
proceedings,”
155 F.3d
argues
conditioning
in favor of
the writ on
Perrill,
12.See Feldman
902 F.2d
resentencing
charge
on the 1990
rather than
1990)
that,
(9th
(stating
peti
Cir.
because the
possibility
of retrial
the 1986
challenges
en
tioner who
a later sentence
charge.
complained
The "detention”
longer
custody
is no
on the
hancement
suffers)
(indeed,
Coss
detention he
conviction,
rendering
the state
initial flawed
resulting
the detention
1990 sen-
pun
conviction
that initial
"has extracted its
tence,
proceedings
thus the relevant
peti
ishment and has no further interest in
opportunity
should have the
to cor-
state
tioner”).
go
We need not
as far as Feldman’s
sentencing proceedings,
not the
rect are
the state’s interest in the initial
statement that
1986 conviction.
However,
is eliminated.
fact
conviction
served his full
that Coss has
clearly greatly
majority opinion,
in the
the ma-
1986 conviction
reduces the
As noted
jority’s
require
choice of relief would
resen-
Commonwealth’s interest
that conviction.
*20
a
resentencing
provide
would
Hearing
stating
Act
Post Conviction
sylvania’s
recidivists,
§
(PCHA),
seq.
9541 et
seems to believe
42 Pa. Cons.Stat.
windfall to
(now
Post
Relief
known as the
Conviction
defendant would lie
that a criminal
Act).
§
filing his
Prior to Coss’s
prison sen
serving
while
an invalid
wait
court, the state PCHA
in federal
petition
tence,
initial
refusing to contest this
sen
approxi-
pending
had been
petition
potential
of a
future bene
tence because
activity.
any
mately
years without
seven
challenge
him of a later
to this
fit to
in the context of an enhance
sentence
highlights
Pennsylvania’s inaction also
a
crime
proceeding
hypothetical
ment
on
inaccuracy of the “nice”
of the
aspect
one
yet
committed.13 Such
that he has
majority, see ante at
posed
the
question
an
here,
image
impris
an
of what motivates
society,
the
give
we
464: “Should
credulity,
right
oned convict strains
and has
Pennsylvania,
the
Commonwealth
explic
having
constitution-
additional flaw of
been
to cure the Sixth Amendment
In
give
itly rejected by
Supreme
or should we
Court.
al defect
Fordice,
have his
sentence
free ride and
second
Garlotte
simply because he is a
(1995),
declared invalid
L.Ed.2d
any “right”
I
to
recidivist?”
submit
Supreme
prisoner
Court held that
defect inherent
cure the Sixth Amendment
“in
serving consecutive state sentences is
already
in the 1986 conviction has
been
on
custody”
purposes
for habeas
all
op-
its
to the Commonwealth via
afforded
sentences, even those that
consecutive
against
to defend this conviction
portunity
to run first and that had
were scheduled
petition;
PCHA
the Commonwealth
Coss’s
already expired at
time of
therefore
further consideration of this
has forfeited
rejected
petition.
The Court
the ar
years of inaction. To
“right”
its seven
gument
holding
would encour
mind,
gives
my
majority’s
relief
delay
to
their
age prisoners
raising
a “free ride”
courts of the Commonwealth
prisoner naturally prefers
claims: “A
re
apparent
for no
reason.
Further,
to
later.
lease sooner
release
petitioner generally
because the habeas
assumptions underlying
the second
proof, delay
apt
the burden of
bears
part
majority’s question referring,
—
disadvantage
more than
petitioner
to
a “free ride” for
possibility
Id.
the State.”
at
majority’s express choice of relief. no Erb; Roy Freed; Gerald J. Marvin E. opinion question whether it would Fultz; Galvin; Ralph Clarence A. possible some other case be for us to Gaul, Jr.; Frank Geissinger; H. Rather, order such relief. I would decline Gilbert; Harvey Gilbert, James T. W. question, to reach that difficult and would Jr.; Gilliland; Robert W. M. Gene Ha instead the District reverse Court’s denial genberger; Larry Harshbarger; L. Coss’s remand to Harshbarger; James L. Carl L. Hart the District with it Court instructions that sock; Heister; Joseph Edwin E. E. order writ of habeas to issue Heller; Herst; David S. T. Lewis He upon being conditioned Coss’s resentenced trick; Hile; William L. Donald Hor on the 1990 conviction without consider- ner; Hostetler; B. John Melvin H. ation of the previous 1986 assault convic- Hughes; Boyd Hunter; Mrs. Ronald comport tion. Such relief would with the Johnson; jurisdiction Johnson; N. principles traditional of habeas John I. Frank by giving incorrectly the tribunal that sub- Keller; B. Kelly; R. John Donald E. jected “custody”— Coss to his current Knepp; Knepp; Dennis D. Mrs. Fred namely, the 1990 court—the Krebs; Leeper; Gary Charles W. M. opportunity to correct its error resen- Leeper; Eugene Lingle; F. Harriet Coss, tencing ridding his sentence of the Marthouse; Martin; Larry Mrs. Clare taint unconstitutional of his convic- McCoy; McKee; C. Lois M. Richard tion. McMunn; D. Metzger; John E. Ches ley Middleton; Mitchell; S. Fred
Judge joins opinion. McKEE in this Moore; L.
Richard Harold C. Mum mah; Nale; Clarence B. F. Joe Nor man; Norris; Joseph L. M. James Ol nick; Pacini; Mrs. Phil Mrs. John Pacini; Parker, Jr.; Melvin E. Her Pecht; George Pitzer; bert W. Rich Quilter; Jay Ream; ard J. A. Don E. Richard; Rhinehelder; Fred D. Righter; Ross; Charles Ferdinando ADAMS; Andrews; David L. Aaron F. Rothrock; Calvin E. Robert R. Ru Archibald; Lynn Aurand; Paul A. E. ntagh; Dorothy Baker; Searer; Banshiere; John E. E. Charles Mrs. Edward Bashore; Basom; John O. Albert L. Shannon; Wayne Sheaffer; E. Ronald Vaughn Baumgardner; K. Ronald L. Shoemaker; Simonetti; J. Paul Don Beckwith; Bell, Jr.; William K. Smith; Smith; ald W. Ross L. Donald Bender; Joseph Berrier; Charles E. G. Snyder; Snyder; H. L. James Glen C. Bickel; Edward Clarence W. R. Bore Solt; Steele; William M. John W. man, Jr.; Harry Bradley, Jr.; John H. Stuck; Suloff; David L. Robert Clark; Joseph Close; R. A. John Swartzell; Thompson; Edward M. Clouser; Condo; Ray Charles W. H. Treaster; Tubbs; Irvin S.L. S. Wilbur Confer; Connare; Thomas J. Donald Ulsh; Vanada; C. Ronald I. H. Gilbert Cook; Crawford; G. Ronald W. Glen Varner; Gary Wagner; Harry L. M. Crissman; Crisswell; F. Gerald W. Wagner; Wagner; Richard S. William Cruikshank; Charles R. L. William Wagner; Wagner; L. M. Gene James Cummings; Davidheiser; Frank J. Wilhelm; Henry Wilson; E. F. Lee M. Davis; Downing; A. William David S. Dumm; Eaton; Wilson; Wolfgang; Gerald Richard H. G. Harold E. Robert