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Simon v. Government of Virgin Islands

United States Court of Appeals, Third Circuit

July 9, 2019

CARL SIMON, Appellant
v.
GOVERNMENT OF THE VIRGIN ISLANDS

          Argued on April 8, 2019

          On Appeal from the District Court of the Virgin Islands (District Court No.: 3-03-cv-00024) District Judge: Honorable Wilma A. Lewis

          Joseph A. DiRuzzo, III [ARGUED] Daniel Lader DiRuzzo & Company Counsel for Appellant

          Su-Layne U. Walker [ARGUED] Office of Attorney General of Virgin Islands Department of Justice Counsel for Appellee

          Before: SMITH, Chief Judge, JORDAN and RENDELL, Circuit Judges

          OPINION

          Rendell, Circuit Judge.

         Carl Simon was convicted in 1994 for his part in a break-in that led to the death of Daniel Ezekiel. Twenty-five years later, we review his petition for habeas relief. Although we agree with the Appellate Division of the District Court for the Virgin Islands that most of Simon's claims do not entitle him to relief, we remand for two reasons. First, the Superior Court abused its discretion when it declined to conduct an evidentiary hearing to address Simon's claim that the Virgin Islands Government violated its Brady obligations by failing to disclose a prior agreement with its key witness, James Roach. Second, the Appellate Division erred when it dismissed Simon's claim that his trial counsel was ineffective without first remanding to the Superior Court to conduct an evidentiary hearing. Simon presented facts that, if true, tend to show his counsel had a conflict of interest by representing one of Simon's co-conspirators at the time of his trial. Thus, we will affirm in part, reverse in part, and remand to the Appellate Division with instructions to remand to the Superior Court to conduct an evidentiary hearing on those two issues.

         I. [1]

         A. The Crime and Pre-trial Events.

         In September 1993, three men broke into the home of Elroy Connor. When Connor and Daniel Ezekiel returned in the midst of the break-in, a struggle ensued and Ezekiel was shot and killed. The three intruders fled the scene.

         Subsequently, James Roach was arrested for his involvement in the death of Ezekiel. Roach was charged in the District Court for the Virgin Islands with first degree murder under Virgin Islands law and unlawful flight to avoid prosecution under federal law. As to the murder charge, he pled not guilty. The murder trial was prosecuted by the Virgin Islands Attorney General's Office. Roach testified on his own behalf, stating he was at his girlfriend's house on the night in question, and thus did not commit the crime. When asked about a possible co-conspirator, Simon, Roach stated that he did not know him. In March 1994, Roach was found guilty of first degree murder and subsequently appealed his conviction and sentence to us. He later withdrew that appeal in March 1995. Roach was also convicted on the unlawful flight charge, but in October 1994 he moved to continue sentencing on that count.

         After Roach's conviction, Simon was arrested. The Government filed an Information in the Superior Court of the Virgin Islands charging him with burglary, conspiracy, and first degree premeditated murder. The Court appointed Augustin Ayala, Esq., to represent Simon.

         Two weeks before trial, the Government notified Simon that it intended to amend the Information. One week before trial, it moved to amend the Information changing premeditated murder to felony-murder with a predicate felony of robbery. The amendment also added robbery and conspiracy to commit robbery. Ayala objected, as the amendment added new charges only a week before trial. The Court nonetheless granted the motion to amend the Information. Two days before trial, the Court again permitted an amendment to cure a defect over Ayala's objection, removing the conspiracy count and altering some language to reflect the elements of felony-murder.

         B. Trial and Direct Appeal

         At trial, the Government presented Roach as its key witness. Shortly after his conviction, Roach provided a statement to officials that was diametrically opposed to his testimony at his own trial. In the statement, he indicated that Simon orchestrated the burglary and shot Ezekiel. Roach explained his change in tune, testifying, "I was scared. I was scared for my life. That's why I didn't tell the truth then, cause Carl Simon say he going to kill me. But, I ask for protection, and I get it, so I [am] willing to tell the truth now." JA 444-45. Ayala cross examined Roach on, among other things, the "protection" he received. Ayala asked, "Do you know which Government gave the protection? Was it the Federal Government or the Local Government?" JA 482-83. He stated, "I can't-the Local." JA 483. On redirect examination, the Government asked Roach to explain what, if any promises, were made to him:

[The Government]: Mr. Roach, will you state to the Court and the . . . Jury, whether or not the Government has made any promises to you for your testifying here today, in terms of reducing or having to do anything with your case? [Roach]: I ask for protection. [The Government]: And?
[Roach]: So that Carl Simon and he brother [sic] and they couldn't get to me.
[The Court]: Are there any other promises that were made to you by the Government? [Roach]: No, Sir.

JA 498. Although other witnesses testified at Simon's trial, Roach was the only witness to affirmatively place Simon at Connor's house and identify him as the one who shot Ezekiel. Connor, the homeowner, testified that Roach was with a shorter man, but never identified the "short man" as Simon, nor did he identify him at trial. See JA 578-59 ("No, I couldn't see [his face]."). In addition, Roach and Connor's testimony conflicted: Roach indicated that Simon put a t-shirt over his head to cover his face, while Connor indicated the man wore a stocking.

         The third intruder was never formally identified. Ayala questioned Roach about a man named Daryl Ward, the possible third man. Roach stated that he had a conversation with Ward in jail and that he "fit the description" of the third man, but "it wasn't him" because "he was in jail, and when I really think, it wasn't him." JA 465-66. Roach further stated that it "wasn't him" because of "how he express[ed] [him]self." JA 469. Ayala testified years later in an unrelated proceeding that:

Ward, as far as I'm concerned, notice I said as far as I'm concerned, was part of the individuals who were in that house. The only problem that the government had, and the government didn't call him, was the Bureau of Corrections records indicated that Mr. Ward was at the Bureau of Corrections at the time. But I know that Mr. Ward was out, because I had, Mr. Ward was also one of my clients, and I remember Mr. Ward being out. And from all indications, it would appear to me that Mr. Ward was another individual who may have been there along with Mr. Simon and Mr. Roach.

JA 966. Ayala attempted to have Ward testify at Simon's trial, but "he didn't come to court. I couldn't force him to come to court, because, again . . . [t]he records would indicate that he would be in jail[.]" JA 967.

         Simon was found guilty of burglary, robbery, and felony-murder, and sentenced to life imprisonment without parole. He appealed the conviction to the District Court of the Virgin Islands, Appellate Division.[2] At that time, the Public Defender's Office signed an agreement with Michael Joseph, Esq. to take over Simon's appeal. Joseph filed a brief arguing that the District Court erred by permitting the Government to amend the Information to add additional charges before trial. The Appellate Division affirmed. Simon wished to appeal the decision to us. After he attempted to contact Joseph, Joseph sent a letter stating:

I received your message . . . in which you demanded that I file a notice of appeal to the 3d Circuit from your direct appeal to the Appellate Division. . . . Unfortunately, such an appeal would be frivolous and without merit. . . . I am therefore advising you that you should seek other counsel if you insist on an appeal to the Third Circuit Court of Appeals. Note that you must file such notice immediately.

JA 921. Although Simon filed pro se a notice of appeal shortly thereafter, it was dismissed as untimely.

         In September 1995, the United States Attorney's Office filed a stipulation to vacate Roach's sentence of first degree murder and reduce the conviction to second degree murder. Several months after Roach testified and helped secure Simon's conviction, Roach withdrew his ongoing appeal to the Third Circuit. The United States Attorney's Office, in exchange, informed the District Court of his substantial cooperation and requested that his conviction for first degree murder be vacated and reduced to second degree murder. The Virgin Islands Assistant Attorney General who prosecuted Simon's case also submitted a letter in support of Roach's resentencing. At a hearing considering this, Roach's attorney indicated that:

After [Roach] had filed [his] appeal with regards to this matter, we were approached by the Government and we agreed with regards to that matter to testify in the Territorial Court. Upon our testimony in the Territorial Court, we agreed and we stipulated to vacate the conviction for first degree murder.

JA 868. The District Court vacated the first degree murder sentence, and Roach pled guilty to the new count of second degree murder. The District Court subsequently sentenced him to 20 years' imprisonment.

         C. Habeas Proceedings.[3]

         After Simon's direct appeal, he filed this petition in the Superior Court. Simon argued, inter alia, that: (1) the Government's amendment to the Information two weeks before trial was per se reversible error; and (2) the Government violated its Brady obligations by failing to disclose a prior agreement with Roach to testify in exchange for reducing his conviction and sentence. The Superior Court denied the habeas petition in a July 18, ...


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