Lackawanna County D. A., et al. v. Coss, Edward R. (04/25/2001)

By: Eric Drudis, Medill News Service

Questions presented

Does the custody requirement of the federal habeas corpus statute preclude, under all circumstances, a challenge upon a fully expired conviction under habeas attack and for which the petitioner is presently in custody?

Brief

In the small community of Dickson City, in Lackawanna County, Pennsylvania, Edward R. Coss, Jr. threw a couple of punches at a cop trying to break up a wild high school graduation party in June 1986. While in jail that night, the inebriated 17-year-old smashed up the radiator, a sink, a toilet and a light on the ceiling.

After a quick trial, he was convicted of simple assault and institutional vandalism and sentenced to six months to a year on each offense. He served his time, then was released.

A few months later, though, in August 1989, a Peter Petrovich was beaten up by a group of five or six men, among them Coss. He was arrested and convicted on one count of aggravated assault and battery and one count of simple assault for his part in the melee. This time, though, he was sentenced to six to 12 years in prison; he is still serving his sentence for the 1990 conviction, enhanced because of the 1986 conviction he now claims was the product of bad legal advice — a violation of his 6th Amendment right to counsel.

Coss met his assigned attorney, Rose Ann McGowan, twice before that first trial. He says he gave the first-year attorney the names and addresses of several potential witnesses during their first meeting. She, however, neglected to tell him when his trial would take place until an hour before the trial was set to begin, at which point Coss drove directly to the courthouse, stopping only to pick up his brother Jimmy at school. The trial lasted two days. The two officers who arrested Coss testified that they grabbed an obviously drunk Coss when he tried to run into nearby woods. They also testified that one of the officers tried to catch another reveler, but Coss punched and jumped on that officer before he could catch him.

The only witnesses to testify on Cosss behalf were his brother Jimmy and himself. They first denied they were at a party, then denied that Coss had been drinking and that he hit or punched anyone. They also testified that Coss and Jimmy had been outside the house where the party took place less than 15 minutes when policemen began to assault them suddenly.

In his later claims that he was denied effective counsel, Coss said McGowan had failed to subpoena any of the people at the party who could refute the contention that he had struck a police officer.

In April 1998, in an evidentiary hearing in federal court on Coss' habeas corpus petition, McGowan testified about her recollection of the legal counsel she had provided 12 years earlier

""McGowan's recollection of the case [at the evidentiary hearing] was somewhat sketchy,"" the district judge stated. She conceded that she had not investigated the events surrounding Coss arrest and didnt send an investigator to interview any witnesses. But she dismissed the claim that she provided ineffective legal assistance because, according to her, Coss ""must have told me not to subpoena them.""

Though the district judge found that McGowans failure to subpoena witnesses ""fell below an objective standard of reasonableness,"" he denied Cosss ineffective assistance of counsel claim and his habeas petition, ruling that the verdict would have not been different given the inconsistency in the accounts of Coss and other witnesses at the party — all who placed him in the midst of the drunken celebration.

A divided 3rd Circuit Court of Appeals en banc panel reversed, concluding that a reasonable probability existed that ""had counsel subpoenaed the witnesses, [Coss] would not have been found guilty of assaulting the officer."" In finding that the district judge had erred in denying Coss' habeas petition, however, the majority noted that it could not grant the ""normal relief"" of freeing Coss because he had already ""in the vernacular, 'done the crime and done the time.'

""We are thus faced with the very nice question,"" Judge Ruggero J. Aldisert wrote for the majority. ""Should we give society, here, the Commonwealth of Pennsylvania, the right to cure the Sixth Amendment constitutional defect or should we give the Appellant a free ride and have his second sentence declared invalid simply because he is a recidivist?""

The majority's solution was to offer Pennsylvania an option: Conduct a new trial, and if the new trial produces a verdict different from the prior verdict, the state would have to re-sentence Coss to account for any enhancement due to this guilty verdict. Or the state could forego a new trial and proceed into re-sentencing on the 1990 conviction.

The rest of the en banc panel was awkwardly divided on the outcome.

Two judges, Richard Nygaard and Jane Roth, agreed with the majority that Coss was denied effective counsel but parted company over whether the challenged sentence would have been different had the sentencing judge known that Coss' prior conviction had been unconstitutionally obtained. Those two judges had ""no doubt that the sentencing judge would have imposed exactly the same sentenceÉ""

They pointed to a series of other arrests — a 1986 arrest for making terrorist threats; a 1988 arrest for aggravated assault and simple assault; a 1988 arrest for delivery of heroin; a 1989 arrest for aggravated assault, simple assault, recklessly endangering another person and disorderly conduct; another 1989 arrest for simple assault as well as for making terrorist threats; a 1990 arrest for simple assault and retail theft; and a second 1990 arrest for retail theft and criminal conspiracy — to point out that the sentencing court was already familiar with Coss, whom they called a ""career criminal.""

Two other judges, Marjorie Rendell and Theodore McKee, concurred in part and dissented in part. They agreed that Coss 1990 sentence would have been different if the 1986 conviction were found constitutionally invalid. But they urged restraint in setting a precedent in forcing a lower court to re-try Coss for the 1986 case. They instead urged the court to re-sentence Coss themselves.

""I think itÉclear that resentencing is the appropriate remedy in this case, for several reasons implicating both judicial prudence and comity,"" Judge Rendell wrote. ""First, I am not convinced that we even can afford the relief suggested by the majority. Having served his entire sentence on the original 1986 conviction, Coss clearly is not Ôin custody on that charge, and therefore would not have recourse to the remedy of retrial through a habeas petition at this point.""

On Oct. 10, 2000, the U.S. Supreme Court granted certiorari in the case and allowed Coss to proceed in forma pauperis.