Clayton Thomas v. Ben Varner, Superintendent

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2856
CLAYTON THOMAS
v.
BEN VARNER, SUPERINTENDENT; THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-04778)
District Judge: Honorable Bruce W. Kauffman
Argued April 22, 2005
Before: ROTH, FUENTES, and STAPLETON, Circuit Judges.
(Opinion Filed: November 4, 2005 )
Helen T. Kane (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham

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District Attorney
1421 Arch St.
Philadelphia, PA 19102-1582
ATTORNEYS FOR APPELLANTS
Daniel Silverman (Argued)
1429 Walnut St.
Suite 1001
Philadelphia, PA 19102
ATTORNEY FOR APPELLEE
____
ORDER AMENDING PUBLISHED OPINION
FUENTES, Circuit Judge
IT IS NOW ORDERED that the published Opinion in the above case filed
November 4, 2005, be amended as follows:
On page 16, beginning on the tenth line of the page, delete the two sentences and
footnote that follow “Id.” Replace the deleted text and footnote with the following:
Here, Fuller testified that the detective insisted that he look “real good” at
the photograph of Thomas after failing to get an identification on several
prior occasions. The Commonwealth notes that the detective’s trial
testimony conflicted directly with Fuller’s account of the identification.
However, the Commonwealth declined to develop the record further before
the Magistrate Judge, despite the opportunity to do so. Accordingly, the
Commonwealth did not establish by a preponderance of the evidence that
the photo array was not improperly suggestive. At the hearing before the
Magistrate, the relevant issue was whether or not a motion to suppress
would have been successful in the state court if Thomas’s trial counsel had
made such a motion. If trial counsel had filed a suppression motion, the
burden would have been on the Commonwealth to establish that Fuller’s
identification was not the result of undue suggestiveness. See Pa. R. Crim.
P. 581(H) (“The Commonwealth shall have the burden of going forward
with the evidence and of establishing that the challenged evidence was not

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obtained in violation of defendant’s rights.”); Commonwealth v. Culp, 548
A.2d 578, 581 (Pa. Super. 1988). Because the Commonwealth did not carry
its burden, the Magistrate did not err in accepting Thomas’s position.
By the Court,
/s/ Julio M. Fuentes
Dated: January 18, 2006

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