Antonio Vazquez v. Harry Wilson

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DLD-297 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3094
___________
ANTONIO VAZQUEZ,
Appellant
v.
HARRY WILSON; THE DISTRICT ATTORNEY OF THE COUNTY OF
PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-06-02665)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and IOP. 10.6
August 27, 2009
Before: BARRY, AMBRO AND SMITH, Circuit Judges
(Opinion filed October 9, 2009)
_________
OPINION
_________
PER CURIAM
Antonio Vazquez appeals from the District Court’s denial of his motion for

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1 Thus, the Commonwealth now had 240 days from February 27, 2009, to re-try
Vazquez.
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issuance of a conditional writ of habeas corpus. For the following reasons, we will
summarily affirm.
In July 2000, a jury sitting in the Philadelphia Court of Common Pleas found
Vazquez guilty of first-degree murder and a judge sentenced him to life in prison. After
filing an unsuccessful direct appeal and a post-conviction petition in state court, Vazquez
filed a petition for a writ of habeas corpus in the United States District Court for the
Eastern District of Pennsylvania. The District Court denied the petition. Vazquez
appealed and we reversed, directing the District Court to “order that the state authorities
free Vazquez from custody unless he is retried in the state courts with the trial to start
within a period of time the District Court fixes.” Vazquez v. Wilson, 550 F.3d 270, 284
(3d Cir. 2008).
On remand, in an order entered on January 16, 2009, the District Court granted the
Commonwealth sixty days to file a petition for writ of certiorari in the United States
Supreme Court. If the Commonwealth chose not to seek certiorari, the order allowed the
Commonwealth 120 days to re-try Vazquez from the date of its decision not to do so. On
February 27, 2009, the Commonwealth chose not to seek a writ of certiorari. On June 12,
2009, the Commonwealth filed a motion to extend the time for state re-trial. In a June 17
order, the District Court granted the Commonwealth an additional 120 days to re-try
Vazquez.1 On the same day, Vazquez filed a motion to convert the conditional grant of

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habeas corpus into an absolute writ requiring his release. The District Court, citing the
June 17 order granting the Commonwealth an extension, entered an order denying his
motion. Vazquez filed a timely notice of appeal from that order.
We have jurisdiction over Vazquez’s appeal denying his request to make the
conditional writ absolute and to release him pursuant to 28 U.S.C. § 1291. See Gibbs v.
Frank, 500 F.3d 202, 205 (3d Cir. 2007). “We exercise plenary review over whether the
District Court correctly interpreted the instructions of our prior opinion.” Id. at 206.
Our decision in Gibbs v. Frank is squarely on point. In that case, also involving a
Pennsylvania habeas corpus petitioner challenging the length of time set for re-trial, we
held that the original 120-day period the District Court set for re-trial was “eminently
reasonable.” Id. at 207 (noting that 120 days comports with Pennsylvania’s Rule of
Criminal Procedure 600(D)). In addition, we held that a District Court has broad
discretion to alter the time period originally set for retrial. Id. at 207-08. That broad
discretion includes “the ability to evaluate whether the Commonwealth has provided a
legitimate reason for its delay in retrying a defendant subject to a conditional habeas
writ.” Id. at 208. In excusing the untimeliness of Gibbs’ re-trial, we noted that the
District Court gave careful consideration to comity by looking to a Pennsylvania state
court procedural rule which excludes from the 120-day period any continuances granted
at the request of the defendant or defendant’s attorney. Id. at 210.
Vazquez has not alleged that any of the delays were attributable to the
Commonwealth; he argues only that he wishes to be released in order to better prepare for

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2 According to the Commonwealth, Vazquez had been in contact with Gelman, who
had been negotiating plea agreements with the Commonwealth. The Commonwealth,
however, stated that Vazquez refused to cooperate with Gelman in his representation.
Vazquez asserted in his motion that while he had preliminary discussions with Gelman,
Gelman would not represent him until the two could meet in person.
3 Recently, the Supreme Court, interpreting the Sixth Amendment’s guarantee of a
speedy trial, held that “[a]ssigned counsel, just as retained counsel, act on behalf of their
clients, and delays sought by counsel are ordinarily attributable to the defendants they
represent.” Vermont v. Brillon, 129 S. Ct. 1283, 1287 (2009).
4 The Commonwealth has indicated that it intends to seek the death penalty.
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his new trial. The Commonwealth asserted in its motion that it has located its witnesses
and is ready to proceed to trial. Indeed, the Court of Common Pleas Docket shows that
Vazquez or his counsel is responsible for the delays in commencing the trial.
On March 30, 2009, the Commonwealth and defense attorney Louis Nicholson
appeared before the court and the defense requested a continuance. On April 8, 2009, the
court ordered a hearing to determine whether Vazquez needed appointed counsel. On
May 14, 2009, Vazquez appeared before the trial court with counsel present. At that
hearing, the trial court removed defense counsel Norris Gelman and ordered Daniel
Rendine to represent Vazquez.2 On May 21, Vazquez officially filed a motion for
appointment of counsel. The court listed the case for a hearing on June 9, 2009, to
determine Rendine’s status. On June 9, Rendine indicated that he needed additional time
for further preparation.3 At the same hearing, the trial court also appointed another
attorney, Judy Rubino, as a mitigation specialist to assist Rendine during the penalty
phase of the trial.4 The court scheduled the parties to appear again on July 14.

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5 We recognize that the District Court’s order is, in one respect, broader than the order
in Gibbs. Here, the District Court granted the Commonwealth an additional 120 days
instead of excusing the delay within the original 120 day period. The practical effect of
the District Court’s order, however, is similar and is not an impermissible alteration of the
original period. Gibbs, 500 F.3d at 207. Indeed, in Gibbs, the Court cited approvingly to
a Seventh Circuit case in which the state moved for an extension of the re-trial period
which the district court granted. Id. at 208 (citing Gilmore v. Bertrand, 301 F.3d 581, 583
(7th Cir. 2002) (per curiam)).
5
Given that the delay in starting trial is due to the appointment of new defense
counsel, we think that the District Court acted within its broad habeas authority in
extending the time period for re-trial for an additional 120 days. Gibbs, 500 F.3d at 210.5
Accordingly, because this appeal presents us with no substantial question, we will
summarily affirm the District Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6.

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