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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARY SPANN : CIVIL ACTION

Plaintiff, :

:

v. :

:

FRANK D. GILLIS, et al., : NO. 05-0034

Defendants. :

ORDER

AND NOW, this 28th day of February 2006, upon careful and independent

consideration of the pleadings and record herein, and after review of the Report and

Recommendation of United States Magistrate Judge Thomas J. Rueter (Doc. No. 12) and

Petitioner’s Objections to the Report and Recommendations (Doc. No. 21), it is hereby

ORDERED as follows: 

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The petition for a writ of habeas corpus is DENIED.

3. A certificate of appealability is not granted.

In his objections, petitioner argues that, because the statute of limitations has run in state

court, the claims contained in his amended petition should be substantively addressed even

though they have not been exhausted in state proceedings. Pet’s Obj. at 4-6. Magistrate Judge

Rueter recognized that the claims contained in petitioner’s amended petition would be time

barred by the one-year statute of limitation under 42 Pa. Cons. Stat. Ann. § 9545(b). Report &

Recommendation (“R&R”) at 7. “[W]hen exhaustion is futile because state relief is procedurally

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barred, federal courts may only reach the merits if the petitioner makes the standard showing of

‘cause and prejudice’ or establishes a fundamental miscarriage of justice.” Whitney v. Horn, 280

F.3d 240, 252-53 (3d Cir. 2002) (quoting Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).

Magistrate Judge Rueter correctly noted that petitioner demonstrated “neither cause for the

default nor that the federal court’s failure to consider the claim will result in a fundamental

miscarriage of justice.” R&R at 8. Therefore, Magistrate Judge Rueter properly declined to reach

the merits of the claims contained in the amended petition.

Petitioner also argues that Magistrate Judge Rueter failed to address the claims set forth

in the original petition for a writ of habeas corpus. Pet.’s Obj. at 4. Petitioner did not include the

claims set forth in the original petition in his amended petition. An amended pleading ordinarily

supercedes the original pleading, rendering the original of no legal effect. See Young v. City of

Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001); In re Crysen/Montenay Energy Co., 266 F.3d

160, 162 (2d Cir. 2000); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 892 F.2d 1542,

1546 (9th Cir. 1990); Fritz v. Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358

(11th Cir. 1982); Ghadiali v. Delaware State Medical Soc., 48 F. Supp. 789, 793 n.3 (D. Del.

1943); Charles A. Wright, Arthur R. Miller & Mary Kay Kane, 6 Federal Practice and Procedure

§ 1476, at 556-57 (1990). Therefore, Magistrate Judge Rueter correctly limited his analysis to the

claims set forth in the amended petition. 

Even if the claims contained in the original petition had been included in the amended

petition, the petition for a writ of habeas corpus would still be denied because the claims

contained in the original petition are without merit. In his original petition, petitioner argues that

his trial counsel and his appellate counsel were constitutionally ineffective for their failure to

Case 2:05-cv-00034-LDD Document 22 Filed 02/28/06 Page 2 of 5
 During her testimony, Harris admitted that she lied under oath. The judge instructed the 1

jury that if they found a witness lied about one part of the testimony, they had the right to

disbelieve all of that witness’s testimony. 

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raise a number of issues at trial and on direct appeal. Pet’s Brief at 7-8. Specifically, petitioner

contends that trial counsel was constitutionally deficient for failing to request a Kloiber charge,

for failing to request a jury instruction on Emily Harris’s crimen falsi conviction, for failing to

object to references to the petitioner’s police photo and photo number, for failing to seek to

introduce medical records establishing that Randolph Paige was intoxicated at the time of the

incident, for failing to interview people regarding the bad reputations of Emily Harris and

Randolph Paige, for denying the petitioner the opportunity to present an alibi defense, for failing

to request a jury instruction on the alibi, and for failing to request a jury instruction on Emily

Harris’s parole status. Id. Petitioner argues that appellate counsel was constitutionally deficient

for not raising most of these claims for ineffective assistance of trial counsel on direct appeal and

for not appealing the trial court’s ruling precluding petitioner from presenting testimony about

the outstanding arrest warrant for Emily Harris. Id. 

 The Kloiber claim and the crimen falsi claim were raised and denied in the first PCRA

proceeding. On appeal, the Pennsylvania Superior Court affirmed the denial of the PCRA

motion, reasoning that the Kloiber charge was not required under the facts of the case and that

petitioner was not prejudiced by counsel’s failure to request a jury instruction on the crimen falsi

conviction because the jury was aware of Harris’s perjury and her crimen falsi convictions.

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Commonwealth v. Spann, No. 2049 EDA 1999, slip op. at 3-6 (Pa. Super. Ct. Aug. 3, 2000). 

The remaining claims were raised and denied in the second PCRA proceeding. On appeal, the

Pennsylvania Superior Court affirmed the denial of the second PCRA motion, adopting the

Case 2:05-cv-00034-LDD Document 22 Filed 02/28/06 Page 3 of 5
 The PCRA court held that petitioner was not prejudiced by the reference to the police 2

photo number, by trial counsel’s failure to present alibi evidence or reputation evidence, or by the

lack of an alibi instruction. Commonwealth v. Spann, No. 0030 (C.P. Phila. Aug. 9, 2002). The

PCRA court held that, since the medical records at issue did not indicate that Mr. Paige was

intoxicated and the evidence regarding the bad reputations of Emily Harris and Randolph Paige

was inadmissible opinion evidence, counsel could not be deemed ineffective for failure to

introduce this evidence. Id. The PCRA court also held that, contrary to petitioner’s claim,

evidence regarding the outstanding arrest warrant was presented to the jury. Id. Finally, the

PCRA court held that petitioner’s claim that the jury should have been instructed that Ms.

Harris’s testimony may have been biased because of her parole status “is absurd.” Id. 

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PCRA court’s analysis on the merits of petitioner’s claims. Commonwealth v. Spann, No. 2850 2

EDA 2002, slip op. at 8 (Pa. Super. Ct. Aug. 26, 2003). The opinions of the PCRA court and the

Pennsylvania Superior Court fully and completely address petitioner’s claims.

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court determined that 28

U.S.C. § 2254(d)(1) established two distinct paths for the invalidation of a state conviction on

federal habeas review. First, federal habeas relief is warranted if a state conviction is “contrary

to ... clearly established Federal law.” 28 U.S.C. 2254(d)(1). This path applies when a state

court’s actions are “diametrically different” or “mutually opposed” to clearly established law.

Williams, 529 U.S. at 406. Second, federal habeas relief is appropriate if the state conviction

“involves an unreasonable application of ... clearly established Federal law.” 28 U.S.C.

2254(d)(1). This path encompasses cases in which the state court applies the proper Supreme

Court precedent to specific facts in an objectively unreasonable way or where the court

unreasonably extends (or refuses to extend) a clearly established rule. Williams, 529 U.S. at 409. 

The applicable, clearly established law governing Sixth Amendment claims of ineffective

assistance of counsel is the two-prong test of Strickland v. Washington, 466 U.S. 668, 687-88

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 Under the first prong, a habeas petitioner must demonstrate that counsel’s representation 3

fell below an objective standard of reasonableness considering all the circumstances. Strickland

v. Washington, 466 U.S. 668, 687-89 (1984); see also Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir.

2005). Under the second prong, a habeas petitioner must demonstrate that he was prejudiced by

counsel’s substandard performance. Strickland, 466 U.S. at 687. A petitioner is prejudiced if

there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the

proceeding would have been different. Id. at 694; see also Jacobs, 395 F.3d at 105. 

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(1984). In the instant matter, the state court’s denial of petitioner’s ineffective assistance of 3

counsel claims was not “diametrically different” or “mutually opposed” to the clearly established

law in Strickland, and the state court did not apply Strickland in an objectively unreasonable way. 

Rather, petitioner’s claims did not satisfy either prong of the Strickland test. Petitioner did not

demonstrate that his trial counsel or his appellate counsel was deficient or that, but for any

claimed deficiencies in his representation, the outcome of the trial or appeal would have been

different. As a result, his petition for a writ of habeas corpus must be denied.

 BY THE COURT:

 /S/LEGROME D. DAVIS

 LEGROME D. DAVIS, J.

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