Gorby v. Wetzel

210 F.Supp.3d 725

Thomas J. GORBY, Petitioner,

v.John WETZEL, Secretary Pennsylvania Department of Corrections, District Attorney of Washington County, Pennsylvania, and Jay Lane, Superintendent of the State Correctional Institution at Fayette,¹ Respondents.

Civil Action No. 2: 12-cv-1170

United States District Court, W.D. Pennsylvania.

Signed September 28, 2016

Kimberly P. Newberry, Samuel J. Angell, Federal Community Defender Office for the Western District O, Philadelphia, PA, for Petitioner.

Jerome A. Moschetta, Washington, PA, for Respondents.

MEMORANDUM OPINION

CONTI, Chief District Judge

I. Introduction

Presently before the court is the counseled petition for writ of habeas corpus filed on behalf of Thomas J. Gorby, also known as Jeff Gorby ("Gorby" or "petitioner"), pursuant to 28 U.S.C. § 2254. (ECF No. 2). Gorby is challenging his 1986 conviction for first-degree murder in the Court of Common Pleas of Washington County, Pennsylvania. The magistrate judge to whom the case was referred issued a report and recommendation ("R&R") in accordance with 28 U.S.C. § 636(b)(1)(B), which recommended that both the petition and a certificate of appealability be denied. (ECF No. 42.) Gorby filed objections to the R&R arguing that counsel's failure to present a diminished capacity defense at trial resulted from counsel's unreasonably limited investigation and he was, accordingly, ineffective. (ECF No. 48.)

Where, as here, objections have been filed, the court is required to make a de novo determination about those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1) ; Fed.R.Civ.P. 72(b). The court may accept, reject, or modify the recommended disposition, as well as receive further evidence or return the matter to the magistrate judge with instructions. After reviewing de novo the record in this case, including Gorby's objections to the R&R (ECF No. 48), his supplement to the objections (ECF No. 57), Respondents' reply (ECF No. 60), the arguments of counsel presented at the January 19, 2016 status conference, the evidence presented at the hearing on September 7, 2016, and the supplemental briefing submitted by the parties (ECF Nos. 80, 81), the court disagrees with the magistrate judge's ultimate conclusion that Gorby is not entitled to habeas relief. Therefore, the court declines to adopt the R&R as the opinion of the court. For the reasons that follow, the court will sustain Gorby's objections and issue a conditional writ of habeas corpus obligating the Commonwealth to either release Gorby or retry him within 120 days.

II. Procedural and Background History

A. Trial and Direct Appeal

On September 17, 1986, a jury empaneled by the Court of Common Pleas of Washington County, Pennsylvania, found Gorby guilty of first-degree murder in the death of Drayton Sphar ("Sphar"). The jury also found Gorby guilty of robbery for having taken Spahr's belongings including, inter alia , his wallet, money, and belt during the course of the killing. (The robbery conviction is not being challenged in this case.) The Commonwealth presented overwhelming evidence establishing that Gorby had committed the murder and robbery. The Pennsylvania Supreme Court summarized the trial evidence as follows:

On Friday, December 20, 1985, James Yeager, a friend of the victim, Drayton Sphar, telephoned Sphar and asked Sphar to pick him up at the Old Trails Inn. Spahr arrived at the Old Trails Inn at approximately 10:00 p.m. that evening. Also present that evening at the Old Trails Inn was the appellant, Thomas Gorby.

When he arrived, Sphar was wearing a leather jacket and a chain belt with a buckle which bore his name on the back. He was also carrying a wallet which was embossed with a Harley Davidson emblem. While there, he bought several drinks for Yeager and [Gorby]. He also bought at least one round of drinks for the entire bar that evening. Each time he bought drinks, the victim displayed a large roll of bills which was particularly visible to Yeager and Gorby who were seated next to him.

After a couple hours passed, [Gorby] asked the victim to give him a ride to the Somerset Inn so that [Gorby] could retrieve his car which was supposedly parked in the Somerset Inn's parking lot. The Somerset Inn is located approximately six miles from the Old Trails Inn. Gorby and the victim left the Old Trails Inn somewhere between midnight and 12:30 a.m. on December 21, 1985, in Sphar's 1976 dark green, Mercury Marquis. Upon leaving, the victim assured Yeager that he would return to drive Yeager home.

At approximately 1:00 a.m. that morning, [Gorby] arrived at the Somerset Inn bar alone. Shortly after arriving, [Gorby] bought a round of drinks for everyone in the bar. He then went into the rest room and after returning, bought another round of drinks for everyone and wanted to again buy everyone a drink about ten minutes later. Each time he bought drinks, he displayed a roll of bills.

While at the Somerset Inn, [Gorby] pulled a belt out of his pants similar to the one the victim was wearing earlier that evening. He placed the belt on the bar and it was passed among several of the patrons. Next, [Gorby] gave the bartender, Harold Cain, a wallet which matched the description of the victim's wallet. Very soon thereafter, he displayed a knife stating that he wanted to show Cain how sharp it was and began shaving Cain's arm. Cain testified that while [Gorby] was shaving the hair on his arm, he noticed blood stains on the knife.

[Gorby] remained at the Somerset Inn until closing, whereupon he asked Cain if Cain could drive him to the Old Trails Inn. Cain dropped [Gorby] at the Old Trails Inn between 2:30 and 3:00 a.m. on December 21, 1985. Before leaving the Somerset Inn, Cain noticed Drayton Sphar's vehicle parked in the lot.

When [Gorby] returned to the Old Trails Inn, he again purchased drinks for all the patrons. At that time, [Gorby] was wearing the belt, which was later identified as belonging to the victim, wrapped around his hand. While there, [Gorby] played pool with Nanette Leeper. Leeper noticed dried blood stains on [Gorby's] pants and when she questioned him as to those stains, he told her that he had been gutting deer earlier that day. [Gorby] and Leeper left the Old Trails Inn around 4:00 a.m. Leeper last saw [Gorby] when she dropped him off at the Eighty-Four Truck Stop shortly after 4:00 a.m. on December 21, 1985.

[Gorby's] girlfriend, Susan Loveland, testified that [Gorby] called her on Friday, December 20, 1985 and asked her if she had any money. That same day, at approximately 3:00 p.m., she drove [Gorby] to the Old Trails Inn and gave him $20.00. She did not see [Gorby] again until 4:30 p.m., Saturday, December 21, 1985 when she met him and his mother at the corner of LeMoyne and Lockhart Streets, in Washington, Pennsylvania. [Gorby's] mother drove Loveland and [Gorby] to the Howard Johnson Motor Lodge where a room was registered in Susan Loveland's name. It was in this room that [Gorby] confessed to Loveland to killing Drayton Sphar. [Gorby] told Loveland that he had stabbed Sphar and then slit his throat with a knife. He told her that the killing occurred in the Somerset Inn parking lot in Sphar's car. He also told Loveland that he had taken money from Spahr. In addition, Loveland testified that [Gorby] had Sphar's leather jacket and his belt in the room. Later in the evening, [Gorby] placed the victim's wallet, belt and leather jacket as well as a wash cloth and one glove in a pillow case and disposed of the pillow case in a trash can located on the premises of the Howard Johnson Motor Lodge.

On Monday, December 23, 1985, John Logar, an employee of the Howard Johnson Motor Lodge, found, while emptying the trash, a pillow case containing a leather jacket, a wallet, a lighter, a belt, a pair of gloves and a wash cloth. Logar testified that after finding the belt, he tried it on and noticed that the name Drayton Sphar was embossed on the back of the buckle. Because Logar had just read in the newspaper about the murder of Drayton Sphar prior to finding the pillow case, he called the County Coroner.

Pursuant to their investigation, members of the Pennsylvania State Police questioned [Gorby] at the home of his mother, Mrs. Betty Stevens on December 22, 1985. On December 23, 1985, the police filed a Criminal Complaint against [Gorby] and attempted to serve him with an arrest warrant at his mother's home. When they arrived, Mrs. Stevens informed them that [Gorby] had left her home shortly after being questioned on December 22, and that she had not seen him since.

After an extensive search, [Gorby] was finally located in Houston, Texas, following his arrest there under an assumed name. [Gorby] waived extradition and returned to Pennsylvania on April 24, 1986.

Commonwealth v. Gorby , 527 Pa. 98, 588 A.2d 902, 904–06 (1991) (" Gorby – 1 ").

Gorby was sentenced to death on the first-degree murder conviction and a consecutive term of eight to sixteen years of imprisonment on the robbery conviction. Gorby was represented at trial by retained counsel Daniel L. Chunko, Esquire ("Chunko"). After trial, Attorney Chunko was permitted to withdraw and John Lieker, Esquire, the Public Defender of Washington County, represented Gorby on his post-trial motions and direct appeal.

Gorby filed a direct appeal to the Pennsylvania Supreme Court, which affirmed both the convictions for first-degree murder and robbery, as well as the imposition of the death penalty.

B. State Court Collateral Challenges

On January 10, 1996, Gorby filed a pro se post-conviction relief petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 -9546, which began a ten-year odyssey of PCRA proceedings and appeals to the Pennsylvania Supreme Court with two remands back to the PCRA court for further development of the record. The PCRA court appointed Christopher L. Blackwell, Esquire, to represent Gorby with leave to file an amended PCRA petition. After the granting...