1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-1995

Glass v Vaughn

Precedential or Non-Precedential:

Docket 94-1811

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Recommended Citation

"Glass v Vaughn" (1995). 1995 Decisions. Paper 247.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/247
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-1811 

 

COMMER GLASS 

V. 

DONALD T. VAUGHN; THE ATTORNEY GENERAL OF 

THE STATE OF PENNSYLVANIA; 

THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY 

 Donald T. Vaughn, Superintendent, State Correctional 

 Institution at Graterford; Ernest D. Preate, Jr., 

 Attorney General of Pennsylvania and Lynne Abraham, 

 District Attorney of Philadelphia County, 

 

 Appellants 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil Action No. 91-00963) 

 

Argued February 28, 1995 

Before: SLOVITER, Chief Judge, 

NYGAARD and McKEE, Circuit Judges

(Opinion Filed September 7, 1995) 

DONNA G. ZUCKER, ESQUIRE (Argued) 

Office of the District Attorney 

1421 Arch Street, 5th Floor 

Philadelphia, PA 19102 

Attorney for Appellants 

STEPHEN A. WHINSTON, ESQUIRE (Argued) 

Berger & Montague 

1622 Locust Street 

Philadelphia, PA 19103 

Attorney for Appellee 

 
2 

OPINION OF THE COURT 

 
3 

NYGAARD, Circuit Judge.

 Respondents appeal from the order of the district court 

granting a writ of habeas corpus to the petitioner, Commer Glass, 

who is currently serving a life sentence for first-degree murder. 

The district court held that Glass' trial counsel was ineffective 

because he failed to investigate petitioner's military 

experiences and subsequent history of bizarre behavior, which the 

court concluded would have led counsel to put on a diminished 

capacity defense. We do not reach that issue. Instead, because 

petitioner's current habeas claim was procedurally defaulted in 

state court and he does not fall within the "actual innocence" 

exception recently set forth in Schlup v. Delo, ___ U.S. ____, 

115 S. Ct. 851 (1995), we will reverse. 

I. 

 The facts of this case can be found in the published 

opinion of the district court, Glass v. Vaughn, 860 F. Supp. 201 

(E.D. Pa. 1994), and need only be summarized. Petitioner Glass 

was arrested for the murder of Billie Ann Morris, bound over for 

trial, and retained Attorney Barry Denker to defend him. Glass 

told both the police and his attorney that he was elsewhere when 

the crime was committed. Attorney Denker's investigation was 

therefore limited to interviewing petitioner and driving him 

along the route he claimed to have taken on the night of the 

murder. As we shall see, however, there was much more to the 

story. 

 Petitioner served in the Armed Forces in Vietnam, 

experiencing heavy combat. He saw many people get killed, 
4 

including his friends. On at least two occasions, petitioner 

killed Vietnamese civilians, including a Vietnamese woman who 

allegedly made a threatening gesture to a fellow soldier after a 

sexual encounter. Petitioner, like many other Vietnam veterans, 

exhibited a variety of behaviors consistent with post-traumatic 

stress disorder ("PTSD"). He had acted violently towards Morris 

even before the murder, and remarked the day before the killing 

that "women do what I say do, if not I kill them." 

 Nonetheless, he never told his attorney about his 

military combat experiences nor about the psychological problems 

that followed. Indeed, as the district court recognized, "no 

person volunteered any information to Denker and Denker never 

sought any information that would have alerted him to the 

possibility of a psychiatric defense." Glass, 860 F. Supp. at 

204. Glass did suggest that Attorney Denker interview Phyllis 

Brown, whom Glass later married, to find out what type of person 

he was, but Denker never interviewed her. The district court 

found that Mrs. Glass was aware of petitioner's psychological 

problems and would have told Denker about them had she been 

asked. 

 Attorney Denker offered no witnesses at trial and did 

not argue that Glass' diminished capacity from PTSD negated the 

mens rea element of the crime. Denker instead argued, consistent 

with Glass' statement to the police, that he had an alibi. The 

jury found Glass guilty of first-degree murder and the court 

sentenced him to life imprisonment. While in prison, he was 

formally diagnosed as suffering from PTSD. 
5 

 Glass filed various direct appeals and habeas 

proceedings, including this petition alleging that Attorney 

Denker was ineffective because he failed to investigate and 

pursue a diminished capacity defense. Glass presented and lost 

on this allegation of error before the state trial court in his 

second postconviction relief petition. Unfortunately, he did not 

appeal. Thus, the district court held that petitioner's federal 

habeas claim was both exhausted and procedurally defaulted. 

Without the "actual innocence" exception, the court noted that 

his habeas claim would accordingly be barred. 860 F. Supp. at 

215. We agree. 

 Glass argues on appeal that, because he raised the 

issue of attorney effectiveness in his first postconviction 

relief petition to the state court (which he did appeal), he has 

properly exhausted the claim currently before this court. We 

disagree. In his earlier Post Conviction Hearing Act proceeding, 

Glass argued that his postconviction counsel was ineffective for 

not amending the petition to include the after-discovered 

evidence of PTSD and diminished capacity, even though he had made 

counsel aware of the prison psychologist's diagnosis. Here, 

Glass asserts that his trial counsel was ineffective because he 

failed to investigate a defense based on an undisclosed and 

undiagnosed psychiatric condition. We cannot say that Glass' 

earlier petition fairly presented this issue to the state 

appellate courts. 
6 

 The district court, however, held that Glass made out a 

claim of "actual innocence" sufficient to overcome petitioner's 

procedural default. It opined: 

If the evidence [of PTSD] had been presented 

at trial, there is certainly a fair 

probability that a trier of fact would have 

entertained a reasonable doubt as to his 

guilt of murder in the first degree. Thus, 

the court concludes that petitioner has 

suffered a fundamental miscarriage of justice 

in that a constitutional violation, 

ineffective assistance of counsel, has 

probably resulted in the conviction of 

petitioner of murder in the first degree when 

he is actually innocent of that crime and 

guilty of murder in the third degree. 

Id. at 216. 

 The court ordered an evidentiary hearing to decide 

Glass' habeas petition on its merits. Petitioner called three 

expert witnesses, two of whom would have been available to 

testify in 1976. Respondents called one. All of the witnesses 

testified that there was sufficient information in the mental 

health literature about PTSD that the condition could have been 

diagnosed and presented at Glass' trial. Moreover, all testified 

that Glass indeed suffered from PTSD at the time of the murder. 

They differed, however, in their opinions whether Glass was in a 

dissociative state that impaired his ability to deliberate or 

premeditate, making him innocent of first-degree murder. 

Petitioner's experts testified that Glass was in such a state; 

respondents' expert was unable to reach a conclusion without 

further testing. 
7 

 The district court found that petitioner was prejudiced 

at trial because counsel failed to pursue a diminished capacity 

defense, and that Attorney Denker unreasonably failed to 

investigate facts indicating the possibility of such a defense. 

It accordingly concluded that trial counsel was ineffective and 

granted the writ. 

II. 

 After the initial briefing in this appeal, the Supreme 

Court handed down its decision in Schlup, which concerned the 

standard for actual innocence claims. We requested that the 

parties submit supplemental briefs on the question of whether a 

diminished capacity defense--which goes to the degree of guilt 

rather than factual guilt--can state an actual innocence claim in 

light of Schlup. Schlup itself does not determine that issue. 

 In Schlup, a prison inmate was charged with murdering a 

fellow inmate. He was convicted of first-degree murder and 

sentenced to death. Schlup's habeas petition alleged that his 

counsel was ineffective and that the prosecution had improperly 

withheld evidence from him. He argued that he was factually 

innocent, but nonetheless was found guilty as a result of these 

constitutional errors. The Supreme Court established a strict 

test for claims of actual innocence. 

 The . . . habeas petitioner [must] show 

that a constitutional violation has probably 

resulted in the conviction of one who is 

actually innocent. To establish the 

requisite probability, the petitioner must 

show that it is more likely than not that no 

reasonable juror would have convicted him in 

the light of the new evidence. The 

petitioner thus is required to make a 
8 

stronger showing than that needed to 

establish prejudice. . . . 

Id. at 867 (emphasis added, citations and internal quotation 

marks omitted). The Court continued: 

 The meaning of actual innocence . . . 

does not merely require a showing that a 

reasonable doubt exists in the light of the 

new evidence, but rather that no reasonable 

juror would have found the defendant guilty. 

It is not the district court's independent 

judgment as to whether reasonable doubt 

exists that the standard addresses; rather 

the standard requires the district court to 

make a probabilistic determination about what 

reasonable, properly instructed jurors would 

do. Thus, a petitioner does not meet the 

threshold requirement unless he persuades the 

district court that, in light of the new 

evidence, no juror, acting reasonably, would 

have voted to find him guilty beyond a 

reasonable doubt. 

Id. at 868. 

 The district court, without the benefit of the Supreme 

Court's opinion in Schlup, and relying on the earlier actual 

innocence cases of Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 

2639 (1986), and Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 

2616 (1986), held that petitioner need only show "a fair 

probability that a trier of fact would have entertained a 

reasonable doubt as to his guilt of murder in the first degree." 

860 F. Supp. at 216. It additionally found that Glass "would 

have chosen a diminished capacity defense based on his PTSD if he 

had been fully informed." Id. at 215. Because it found a fair 

probability that a trier of fact would have entertained a 

reasonable doubt as to his guilt, the court concluded that Glass 

had satisfied the requirements for an actual innocence claim. 
9 

 The Supreme Court has not decided whether the actual 

innocence test is applicable in a noncapital case when there is 

evidence that defendant committed the crime but argues that he or 

she was responsible for a lesser degree of guilt. For purposes 

of this opinion, we will assume arguendo that the actual 

innocence test applies. Nonetheless, we cannot conclude under 

the Schlup test that petitioner has shown that it is more likely 

than not that no rational juror would have voted to convict 

Glass. Therefore, petitioner's actual innocence claim is doomed 

under the Schlup standard. 

 The gravamen of Glass' psychiatric evidence was that he 

was suffering from PTSD and was in a dissociative state at the 

time of the murder, having no intent to kill and no recollection 

of the murder after it happened. These psychiatric opinions, 

however, were based entirely on Glass' subjective reporting and 

were arrived at years after the crime. On the other hand, there 

was evidence that Glass went to the murder scene armed and that 

he had earlier behaved violently towards the victim. Moreover, 

when arrested, Glass did not give the police the explanation he 

now proffers--that he had no memory of what happened--but relied 

instead on an alibi that he was not even at the scene when the 

killing occurred. Based on this record we cannot conclude that 

no rational juror would have voted to convict Glass of firstdegree murder. 

 Accordingly, petitioner has not made out a claim of 

actual innocence. His habeas petition is therefore barred, and 

we will reverse the judgment of the district court.