IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CURTIS BRINSON : CIVIL ACTION

:

v. :

:

DONALD VAUGHN, et al. : NOS. 00-6115

: 01-3915

MEMORANDUM AND ORDER

Fullam, Sr. J. October 1, 2008

By Order dated March 6, 2007 I granted as unopposed a

petition for a writ of habeas corpus, conditioned upon the

Commonwealth affording the petitioner a new trial within 120

days. No trial has yet occurred, and the petitioner, proceeding

pro se, has filed a petition seeking to have the conditional writ

made absolute, barring a retrial and requiring his release from

custody. The respondents answered the petition, attributing the

delays to requests by the petitioner. A hearing was held on

September 18, 2008, and I am prepared to rule. 

On May 23, 1986 a jury in the Philadelphia Court of

Common Pleas convicted the petitioner of first-degree murder and

possession of an instrument of crime. After jury selection, but

before the first witness testified, defense counsel raised an

objection based on the just-decided case of Batson v. Kentucky,

476 U.S. 79 (1986). The Batson claims were rejected by the state

courts, and initially by this Court. On appeal, the Court of

Appeals for the Third Circuit found that the petitioner had

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 1 of 8
2

established a prima facie violation of Batson and directed that

the Commonwealth “be given the opportunity to provide legitimate

reasons for any strikes against African Americans.” Brinson v.

Vaughn, 298 F.3d 225, 235 (3d Cir. 2005). The respondents filed

a petition for a writ of certiorari in the United States Supreme

Court, which was denied. This Court was not informed of the

status of the petition for some time, but eventually the

magistrate judge to whom the case was assigned learned of the

denial and issued a report recommending that the petition for a

writ of a habeas corpus be granted without a hearing. The

respondents objected, and by order dated February 2, 2007, I

sustained the objections and scheduled an evidentiary hearing for

March 8, 2007. 

On March 5, 2007, I received by facsimile a letter from

counsel for the respondents, which has been docketed of record

and in which the counsel wrote that:

After much deliberation, and given the unique

circumstances of this case, the respondents have

decided not to contest the Batson claim. That is,

respondents no longer oppose the grant of habeas relief

on Batson grounds. Accordingly, it will not be

necessary to convene the upcoming hearing.

In order to provide this Office with sufficient time to

prepare for retrial, or to enter plea negotiations,

respondents respectfully request that the writ be

granted conditionally, allowing the Commonwealth 120

days for retrial. Counsel for petitioner, Norris

Gelman, Esq., does not oppose this request.

Letter from Thomas Dolgenos dated March 5, 2007 (Document No. 66

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 2 of 8
 The petitioner argues that the first hearing in the Court 1

of Common Pleas did not occur until two days after the 120-day

deadline. However, under Federal Rule of Civil Procedure 6(a),

the date the order was entered (March 6, 2007) is not counted,

and because July 4, 2007 was a national holiday, the hearing on

July 5, 2007 occurred on the 120 day. There was also testimony th

to the effect that there may have been an earlier court

appearance that was not noted on the docket.

3

in Civil Action No. 00-6115)(emphasis added). Therefore, on

March 6, 2007, I ordered that “[t]he petitioner is to be released

from custody UNLESS within 120 days from the date of this Order

the Commonwealth of Pennsylvania affords the petitioner a new

trial.” 

On July 5, 2007, the last day of the 120-day period,

counsel appeared in the Court of Common Pleas for a status

hearing. Counsel for Mr. Brinson and for the Commonwealth 1

agreed to a continuance to allow the District Attorney’s office

additional time to review the file and determine whether to offer

a plea arrangement or to proceed with a retrial. The Court of

Common Pleas docket notes that the continuance was “time ruled

excludable” under Pennsylvania’s speedy trial law. Several

additional continuances were agreed to over the next several

months, although according to the testimony at the hearing, not

all of the status conferences are reflected on the state-court

docket. 

The District Attorney’s office did not make a decision

to retry the case until early in January 2008 – approximately 10

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 3 of 8
4

months after the order granting the conditional writ. Transcript

of Sept. 18, 2008 hearing at 29. At this point, counsel for the

petitioner, Norris Gelman, sought leave to withdraw and have new

counsel appointed. As Mr. Gelman testified at the hearing, he

had been representing Mr. Brinson pro bono (as he had done in the

habeas proceedings) and would be unable to afford to hire

investigators to prepare for the retrial. Id. at 14-15. Mr.

Gelman could not be appointed by the trial court because he was

not on the approved list. Id.

The Common Pleas court judge appointed Bernard Siegel

to represent the petitioner and he entered his appearance on

February 6, 2008. On June 19, 2008 counsel appeared for a

preliminary hearing and the Common Pleas court judge signed an

order granting a motion for a continuance until June 8, 2009, and

stating that it is the earliest possible trial date consistent

with the defense attorney’s calendar.” The transcript of the

preliminary hearing reveals that although Mr. Siegel agreed that

his schedule was the problem, only a handful of dates were

discussed, some of which conflicted with the trial judge’s

vacation. By June 8, 2009 more than two years will have elapsed

since the writ issued.

This Court has continuing jurisdiction over the

petitioner’s application for release from confinement. Gibbs v.

Frank, 500 F.3d 202, 205 (3d Cir. 2007). The Order of March 6,

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 4 of 8
5

2007 set a 120-day time period for retrial; that period was not

selected at random but was explicitly requested by the

respondents. The respondents never moved for an extension of

time but they have provided what the Court of Appeals in Gibbs

termed a “post hoc justification for the trial delay” which,

while certainly permissible, “may be strategically unwise from

the Commonwealth’s perspective because of the broad discretion

afforded to a district court in conditioning (and granting)

habeas relief.” Id. at 208. Modification of the conditional

writ to allow additional time is warranted when the Commonwealth

“provide[s] a legitimate reason for its delay.” Id.

Although the Court of Appeals has held that “[a]ny

delay brought about by a continuance request from the defense

should not be included in the 120-day time frame,” Id. at 210,

the record in this case does not support a finding that the

defense requested the delay. The defense certainly acquiesced in

the initial continuances but the driving force behind the 10-

month delay from March 6, 2007 through early January 2008 was the

extraordinary length of time taken by the Commonwealth in

determining whether to offer the petitioner the opportunity to

plead guilty to a charge of third-degree murder in exchange for a

sentence of time served (which has been more than 22 years) or to

proceed with a retrial on the charge of first-degree murder. The

Commonwealth has not provided any legitimate reason for this

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 5 of 8
6

delay.

I also find that the delay from June 19, 2008 through

(so far) June 9, 2009 cannot fairly be attributed solely to a

request by the defense. Mr. Siegel, who was appointed by a

Common Pleas court judge, testified that he was available at some

earlier dates, but not the ones suggested by the assigned trial

judge. It appears that neither Mr. Siegel, counsel for the

Commonwealth, nor the trial judge considered the possibility of

rescheduling one of Mr. Siegel’s other trials, assigning the case

to a trial judge better able to accommodate Mr. Siegel’s

schedule, or appointing competent but less-busy counsel to

represent the petitioner. The circumstances readily distinguish

this case from the situation in Gibbs, where the Commonwealth was

ready to proceed but did not object to a defense request for a

continuance; the delay in that case was also markedly shorter

than the one at issue here.

The respondents conceded, 21 years after the original

trial in this case, that they could not offer race-neutral

reasons for the jury strikes. The respondents requested 120 days

for the retrial; this request was granted. The District

Attorney’s office then failed to decide whether or not to retry

the case for approximately 10 months. The respondents have not

given a sufficient reason for the delay, and responsibility

cannot be laid at the petitioner’s door. Because the respondents

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 6 of 8
7

failed to comply with the terms of the Order granting the

petition for a writ of habeas corpus, the petition to make the

writ absolute will be granted.

An Order follows.

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CURTIS BRINSON : CIVIL ACTION

:

v. :

:

DONALD VAUGHN, et al. : NOS. 00-6115

: 01-3915

ORDER AND JUDGMENT

On March 6, 2007, this Court rendered a Conditional Writ of

Habeas Corpus, conditional upon the Commonwealth affording the

petitioner a new trial within 120 days. The respondents failed

to fulfill the condition precedent to re-try the Petitioner.

AND NOW, this 1st day of October 2008, IT IS ORDERED:

1. This Court's Judgment granting a writ of conditional

habeas corpus dated March 6, 2007, is now declared to be an

Absolute Writ of Habeas Corpus; and

2. The May 23, 1986 Judgment of Conviction entered in the

Philadelphia Court of Common Pleas, Docket Number CP-51-CR0613151-1985 against the petitioner Curtis Brinson is declared

null and void, and without effect.

3. The respondents are ordered to release the petitioner

Curtis Brinson from custody immediately.

This is a final and appealable Judgment, and there is no

just cause for delay.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

Case 2:00-cv-06115-TJS Document 81 Filed 10/01/08 Page 8 of 8