Banks v. Horn

ity to issue the remand order after the 30-

day period because the defect George BANKS, Appellant E. procedure removal than rather a lack of subject jurisdiction, matter which could be time.”). raised at power, Without this HORN, Commissioner, Martin Dept PA it follows that the District Court abused Corrections; Price, Superin- James discretion imposing attorneys’ fees un- tendent of State Correctional Insti- 1447(c). §der Greene; Raymond Colleran, tute J. aside, Timeliness issues we are Superintendent State In- Correctional nonetheless concerned that the District Waymart; stitute Commonwealth impose Court chose to attorneys’ fees Pennsylvania

based Selective’s colorable removal claim in an area of unsettled law. The No. 99-9005.

Third yet Circuit has not decided whether United States Court Appeals,

an indemnification separate claim is Third Circuit. independent or third-party whether a de may fendant properly remove under Argued April 2001. 1441(c). § Other disagree courts on these questions. Compare Monmouth-Ocean On Remand from the United States Serv., Klor, Collection Inc. v. 46 F.Supp.2d Order of (D.N.J.1999) (“[A]ny third-party June claim for indemnification is not a claim ‘separate and independent’ from the main Filed Jan.

action, and therefore not removable

the third-party 1441.”), § defendant under Jones v. Petty-Ray Geophysical Geo

source, Inc., (5th F.2d Cir.

1992) (indemnification claims based on a

separate contract are separate and inde Shelton,

pendent); Thomas v. 740 F.2d (7th Cir.1984) 487-88 (third-party de remove), may

fendants with Carl Heck

Eng’rs, Inc. v. Parish Police Lafourche (5th Jury, 622 Cir.1980) F.2d 135-36

(authorizing third-party removal if the separate

claim is independent claim). plaintiffs original Under these

less than bright-line circumstances, we be that,

lieve even if Roxbury had timely case,

moved to remand the the District

Court would have abused its discretion by

awarding attorneys’ fees. Accordingly, we

reverse that award this reason as well. Jr., Flora, Wilkes- [Argued], J.

Albert PA, Ruzzo, Barre, PA, Kingston, William E. Banks. George Appellant, for David Lu-W. Gartley [Argued], Scott C. Attorney, Luzerne Office District pas, Wilkes-Barre, PA, Courthouse, for County of PA. Commonwealth Appellee, Peter Law Goldberger, Office Peter Ardmore, PA, Amicus-Ap- for Goldberger, De- of Criminal PA Association pellant, Lawyers. fense Mc- Turner & [Argued], Natali Louis M. PA, Donald, Amicus-Ap- for Philadelphia, De- PA of Criminal Association pellants, Louis M. Natali. Lawyers and fense SLOVITER, ROTH Before: RENDELL, Judges. Circuit THE COURT OF OPINION RENDELL, Judge. Circuit Banks, In Horn v. (2002), the L.Ed.2d 301 us directed Supreme Court States

United Maryland, 486 v.Mills analyze whether 100 L.Ed.2d un- retroactively applied (1988), could be articulated in principles der the Lane, our purposes for convic- Banks’s George

collateral review result, the Court As a tion and sentence. opinion of our portion reversed (3d Cir.2001), Horn, 271 F.3d 527 Banks v. conclude We now Teague. dealing rule of a new announce Mills did not constitutional law retroactivity pur- precluded considering mitigating evi- poses, analysis and thus that our and reso- dence unanimously. had not found I, lution of proper. Banks’s Mills claims was Banks F.3d at 547-551. Accordingly, we will endorse the reasoning conclusion, In reaching that we were set forth the remainder of prior our presented question with the of whether opinion. applicable Mills was purposes for of our collateral review of Banks’s conviction and I. Lane, Teague sentence under 489 U.S. George Banks was sentenced to death 103 L.Ed.2d 334 for the murder of people thirteen (1989). In Teague, Supreme Wilkes-Barre, Pennsylvania, in 1982. His analyzing revolutionized the structure for upheld by conviction and sentence were retroactivity procedure of criminal de- Supreme Pennsylvania Court of cisions, that, holding with rare exception, Banks, appeal, direct Commonwealth v. prisoners may rely not on “new rules”— 513 Pa. A.2d and on essentially, not by pre-exist- rules settled appeal post-conviction for state relief. ing precedent purposes of federal ha- —for Banks, Commonwealth v. 540 Pa. corpus beas review. Id. at (1995). A.2d sought Banks then a writ Teague S.Ct. 1060. thus directed that new corpus of habeas in the Middle District of decisions of constitutional criminal proce- Pennsylvania, which in August was denied dure that are prisoner favorable to a are Horn, of 1999. F.Supp.2d Banks usually inapplicable prisoner once the has (M.D.Pa.1999). fully her appeals, exhausted direct includ- 31, 2001, On October we reversed the filing of a writ of certiorari to the District granted provi Court and Banks a Supreme United States Court. sional writ of corpus, finding habeas meri torious argument Banks’s Teague’s his death new of nonretroactivity rule sentence was premised unconstitutional. Banks v. was part at least in respect on a (3d Horn, Cir.2001) (“Banks 271 F.3d 527 workings for the of state courts and state I”). Specifically, we found that the sen judges appropriate system. to our federal tencing phase instructions and forms vio In particular, the Supreme Court not- has lated v. Maryland, Mills “reasonable, ed that validating good- (1988). interpretations faith existing precedents Mills, the Supreme United States courts,” made state the principles of reversed a death sentence where there nonretroactivity Teague established in “ef- was a substantial probability that a reason fectuate[ ] the States’ interest in the finali- able could have understood the sen ty of criminal convictions and ] fosterf tencing instructions and forms disallow comity between federal and state courts.” consideration of factors not 333, 340, Taylor, Gilmore v. unanimously found to exist. (1993); see I, 108 S.Ct. 1860. In Banks we concluded Teague, also that based on language of the instruc

tions and slip verdict employed Banks’s

penalty phase, a possibility reasonable ex Because Banks’s conviction became isted that jurors 1987,1 believed were final in eight October of months Teague A conviction pur- becomes final for to the state courts has been exhausted and the poses availability appeal "when the filing of direct petition time for for a writ of certiora- Supreme Pennsylvania of the merits its deci- issued before to the facts of Mills application Court’s one Commonwealth’s sion As noted appeal. in Banks’s presented I us in Banks before arguments primary question above, we resolved applicable was favor, sentencing holding that Banks’s relief. We habeas petition Banks’s forms were jury instructions phase that, although reasoned disagreed. We unconstitutional, and therefore clearly ques- “retroactivity is a ‘threshold ” deci- Pennsylvania Supreme I, (quoting F.3d at 541 tion,’ Banks an unrea- involved finding otherwise sion 1060), 300, 109 S.Ct. Teague, application established sonable Supreme Court Pennsylvania because Id. at 551. precedent. Court (albeit doing Mills applied itself decision Banks, v. In Horn nor its Teague, neither unreasonably), so 2147, 2148, L.Ed.2d 301 to per- us required purposes, underlying (“Banks II”), conclud- Supreme the Mills. analysis of retroactivity a form otherwise, emphatically and explicitly ed Instead, we I, at 541-43. 271 F.3d Banks address courts must “federal that holding the mer- only to review necessary it found properly when is Teague question the Supreme Court’s Pennsylvania the of so, doing government.” the argued by decision, concluding: its statements focused on the Court courts the federal that Teague teaches Bohlen, 114 S.Ct. Caspari v. should corpus proceedings in habeas Teague’s that federal rules of new apply reluctant a fed- prevents “nonretroactivity principle decid- cases in state court jurisprudence corpus granting habeas court eral were handed new rules ed before such new on a” based prisoner a state relief to finality and comity Principles of down. ... ar- rule, “if the State thus that and a circum- maintain we counsel that the benefit seeks that defendant gue[s] Here, review. of habeas scope scribed law, the rule of constitutional aof new however, Supreme Pennsylvania ... consider- Teague before apply court must examining are Mills. applied We claim.” Id. merits of ing the we not because of application Ap- original). (emphasis consid- new rule not a impose wish to Supreme Court principles, these plying Supreme Pennsylvania by the ered upon” us “incumbent it was that found in fact did con- Court, court as the but grant- analysis before Teague “perform situation, it. In such apply sider Mills,” and under relief ing respondent Accordingly, implicated. is not did concluding [we] we “erred Pennsyl- only whether we need ask than other anything to focus on ‘not need of application Supreme Court’s vania reasoning determination ” [the be disturbed should Banks Court.’ Supreme Pennsylvania review]. standard appropriate I, 271 Banks II, (quoting at 2150 541). omitted). Accordingly, the (citations Accordingly, F.3d at at 543 Id. ‘Teag- holding that retroactivity “reverse[d][our] held that resolution

we case, and by this implicated’ unnecessary, is not ue Teague was Mills under consis- proceedings for further remand[ed] to our examination directly proceeded certiora Supreme Court denied nal when timely petition has filed elapsed or a ri has Pennsylvania, Bohlen, Banks ri October finally Caspari denied.” been 98 L.Ed.2d 383, 390, L.Ed.2d (1987). fi (1994). was therefore conviction Banks’s II, tent with” its decision. Banks 122 were to believe some mitigating circum- I, (quoting S.Ct. at 2151 Banks F.3d at stance or present, circumstances were un- 543).2 less could unanimously agree on the factor, existence of the mitigating same

II. necessarily the sentence would be death.”4 (emphasis in original). The Court cited We note at the outset that our determi- following possibilities two as constitu- nation as to the merits of Banks’s Mills tionally problematic: claim was not reviewed Court. The Court thus did not vacate our If jurors agree eleven that there are six previous only decision but reversed that circumstances, the result is portion opinion of our concluded that no circumstance is found. a Teague analysis unnecessary for our Consequently, there nothing weigh review of Banks’s habeas petition. Ac- against any aggravating circumstance cordingly, the sole issue presently before found and judgment is death even application us is whether our of Mills on though jurors eleven think the death habeas review of Banks’s sentence was penalty wholly inappropriate.... improper Supreme under the Court’s non- just a situation intuitively [In] dis- retroactivity jurisprudence.3 provide To turbing: All 12 jurors might agree that background analysis, for the we first brief- some mitigating circumstances were ly discuss the Court’s decision in Mills present, and even that those mitigating itself, then turn to an examination of the significant circumstances were enough Supreme retroactivity framework. outweigh any to aggravating circum- stance found to exist. But unless all 12

A. agree could that the same mitigating Mills, In the Court considered the con- circumstance present, would stitutionality instructions, of a set of jury permitted never be engage in the as well forms, as the implementing verdict weighing process any or deliberation on that could be prevent understood to the appropriateness the of the death penal- consideration of mitigating circumstances ty- if the jury was not finding unanimous in 373-74, (citations existence of such circumstances. Id. at 108 S.Ct. 1860 Mills, omitted). 486 U.S. at 108 S.Ct. 1860. Noting that imposition of the is, That “even if jurors some or all of the death penalty under such circumstances 12, 2002, July 2. On it, Banks filed a Petition for because the Commonwealth failed to raise Rehearing. The Court recalled its and we deemed it waived. Id. judgment July issuance of on but on Au- gust rehearing Maryland Court denied 4.The Appeals upheld and reis- Court of judgment. State, sued sentence of death. See Mills v. 310 Md. (1987). Although 527 A.2d 3 agreed it 3. This is not the first time we have been that "if the statute and form were read as presented retroactivity issue of the petitioner suggested, of jurors improp- would be Fulcomer, Zettlemoyer Mills. In v. erly prevented 923 F.2d giving from due consideration (3d Cir.1991), evidence,” Mills, 306 n. we mitigating "decided to see reach the merits of the Mills claim ... [but] (emphasis original), expressly did not hold Appeals whether Mills falls adopted the Court of a construction Fulcomer, Teague outside Frey bar.” exonerating of the statute potential from (3d Cir.1997). 132 F.3d 920 n. 4 constitutional issue. See 527 A.2d at Frey, we noted the issue but did not reach it 12-17. articulated arbitrariness,” first principles id. of height “be would held Lane, which state: it went S.Ct. at exception within an they fall “[u]nless ain beyond dispute It is rule, new constitutional general to the precluded may not be sentencer case the will not be procedure criminal of rules factor, mitigating considering, as from be which have cases to those applicable or character aof defendant’s any aspect are an rules the new final before come of circumstances any of the record and at Teague, nounced.” proffers defendant offense of principle this 1060. Application than death. less a sentence for as a basis See, in three steps. retroactivity proceeds may not that the sentencer corollary at Caspari, e.g., precluded or to consider refuse when First, must determine we mitigating evi- any relevant considering Id. final. conviction became defendant’s established. well equally is dence legal land survey the Second, we must (first and Id. not the whether scape to determine added) ci- (quotations emphasis third rule of a new announced question case omitted). reiterat- then tations if deter Finally, we Id. law. constitutional hand: problem the constitutional ed newa announce case did mine correct, that does petitioner “[I]f it fits into rule, consider whether we must existence on the agree unanimously to nonretroactiv exceptions the two one of give may not circumstance are reserved exceptions Those ity. Id. whatsoever, any effect evidence private a class “placet ] rules of death.” the sentence impose and must State power beyond conduct The Court a address[ ] ... substantive or proscribe, pro- jurisprudence existing stated that by the accorded guarantee categorical the sentencer’s con- “barrier any hibited a Constitution, prohibiting as a rule such .... mitigating evidence of all a class sideration for punishment category certain the Court [wjhatever Id. As cause.” or [its] status of their because of defendants that rea- probability” (2) of crimi a “substantial rules offense,” found “watershed or understood have jurors would the fundamental impheating sonable nal procedure proceeding.” con- precluded the criminal being accuracy as themselves fairness 484, Parks, found evidence 494 U.S. sidering fle Saf 1257, 415 Mills’s 108 L.Ed.2d 494-95, reversed 110 unanimously, the S.Ct. (citations quotations our and internal death, concluding: “Under sentence of find omitted). exceptions permitted be Because cases, must sentencer however, the pos- applicability, narrow rather evidence. consider all Teague in the step dispositive typically block such juror could single sibility a the determination analysis is retroactivity require consideration, consequently constitutional implicated is whether penalty, death impose rule.” a “new as qualifies 384, principle at 108 Id. not risk.” dare one we S.Ct. itself, admitted the Court Teague whether to determine” difficult it is “often

B. rule, explicitly newa announces a case spec- to define “attempt us is avoided before issue the sole Again, a may not constitute may or what is trum of in Mills rule enunciated whether the retroactivity purposes.” rule for new appeal. to Banks’s retroactively applicable 301, 109 S.Ct. at 489 Teague, U.S. by the governed analysis is Retroactivity 491, Court has recog 1257; further at U.S. 110 S.Ct. see also But- nized that the inquiry particularly ler, diffi 415, S.Ct. (noting cult where the in question decision merely that it is insufficient that a decision was extended the reasoning prior cases. considered to be controlled or governed by See, 488, e.g., Saffle, 494 at U.S. 110 S.Ct. prior opinions). 1257; Collins, Graham v. 506 U.S. time, At the same the Court has focused (1993); 113 S.Ct. 122 L.Ed.2d 260 on the decision-making process confront McKellar, 407, 412-13, Butler v. 494 U.S. See, O’Dell, state court judges. e.g., 1212, 108 (1990); 110 S.Ct. see (“At at U.S. 117 S.Ct. 1969 States, also bot Mackey v. United tom, 667, 695, ... doctrine 28 L.Ed.2d 404 ‘validates (1971) (Harlan, J., reasonable, concurring judgments good-faith interpretations of in part and dissenting part) (noting the existing precedents made state courts “inevitable difficulties” in distinguishing though they even are shown to contrary ” new rules from the application of old rules Butler, to later decisions.’ (quoting cases). analogous 414, 110 1212)); Graham, at U.S. 892;

Perhaps a Teague, result inevitable difficulty in articulating And, one test to U.S. at govern S.Ct. 1060. in recent possible all retroactivity scenarios, the decisions, Su approached Court has preme Court has variously “stated the for inquiry from the standpoint of a “reason mula for determining when a rule is new.” jurist.” able In Lambrix v. Singletary, Netherlands, 151, 156, O’Dell v. 137 L.Ed.2d (1997). instance, the Court asked Under the original explication in whether the “unlawfulness of [the defen Teague, “a case a announces new rule apparent dant’s] conviction was to all rea when it ground breaks new imposes jurists.” sonable obligation new on the States or the Feder 1517; see also id. at 117 S.Ct. 1517 al Teague, Government.” (examining jurist whether “reasonable added). (emphasis S.Ct. 1060 put “To ... could have reached a conclusion differ it differently,” the Teague Court explained, ent from” the ultimately one reached by “a case announces a new rule if the result Court); the Supreme id. at was not dictated by precedent existing at 1517 (stating that inquiry our is to “deter the time the defendant’s conviction became mine whether a state court considering the final.” also, in (emphasis original); see defendant’s claim at the time his conviction Graham, e.g., at U.S. became final would have felt compelled by (“A holding constitutes new rule existing precedent to conclude that the within meaning the of Teague if it breaks rule he seeks was required by the Consti ground, new imposes new obligation on (quotations omitted)); O’Dell, tution” the Government, States or the Federal U.S. at (“Teague S.Ct. 1969 asks was not by precedent dictated existing at state court judges judge reasonably, not the time the defendant’s conviction became presciently.”). sum, omitted) final.” “unless (quotations reasonable (emphasis in jurists hearing original)). petitioner’s claim at Similarly, the Court has the stated that previous time his precedents conviction must not became simply final ‘would “inform, or even have govern” compelled control or felt by existing the precedent’ analysis, but “compel favor, instead must to rule in his we are barred from rule” sought by the defendant. Saffle, Graham, 494 doing so now.” 506 U.S. at jurors, that reasonable probability tial Saffle, (quoting S.Ct. 892 in judge’s instructions receiving 1257). upon 488, 110 S.Ct. case, complete attempting and in th[e] instructed, thought ... the verdict form III. any considering precluded were an Mills did not hold that We jurors all 12 evidence unless law rule of constitutional a new nounce any particular existence of’ agreed on the accordingly retroactivity purposes, circumstance. on our habeas of Mills application that our highly persuasive find 1860. We completely was Banks’s sentence review that, legal given the argument Banks’s our aspects four There are proper.5 merely an represented Mills landscape, (1) landscape legal reasoning: established constitu of the well application (2) conviction, the Su of Banks’s time Eighth Amendment that tional rule (3) itself, in Mills decision preme Court’s all barriers to sentencer’s prohibits -Mills decisions of post relevant evi mitigation and all consideration Court, of our opinions capital of a penalty phase dence in have ad who Appeals sister Courts trial. retroactive Teague bars whether dressed conviction became time Banks’s By the of Mills. application landscape pri- was legal final under task” principal “first and Our law Court case marily by Supreme defined landscape to legal survey Teague is years.6 begin We nearly a dozen spanning Mills “was dictated whether with the precedent determine of this our examination is, ... existing precedent decision Woodson then Carolina, the situa- [of the unlawfulness North [whether] to all which struck apparent reason- Mills] tion Lambrix, mandatory death 527- Carolina’s down North jurists.” able above, many constitution- Of the As discussed statute. found North Car- plurality flaws the a sen- al reversed Supreme Court Mills structure,7 one sentencing “a olina’s there was substan- where of death tence at *36-*39 WL Mills did we conclude 5.Because 27, 1998) (M.D.Pa. (holding that Mills is Oct. Teague, need a new we announce rule the second but falls within a new rule arguments regarding not address Banks's exception). two within one of the whether falls note, nonretroactivity. We exceptions to although Dixon, noting the Su- however, is worth F.2d It that in Williams v. "the reason- Cir.1992), preme has instructed (4th Ap the Court of 454-56 entitled to con- courts are of state able views held that Circuit peals for Fourth landscape, legal (and part of McKoy sideration” application of Mills not bar does 383, 395, Bohlen, 114 433, U.S. Carolina, Caspari v. 510 S.Ct. 110 v. North 948, (1994), par- both (1990)) L.Ed.2d 236 S.Ct. 127 habeas on 369 108 L.Ed.2d exclusively focused ties have of rules criminal are "watershed because rate, any we believe that precedent. At fair implicating the fundamental procedure adequately case law Court's here the proceed accuracy of the criminal and ness of legal landscape at the time Graham, depicts 892 ing.” U.S. 506 Parker, omitted); conviction. Banks's also Gall (quotations see Cir.2000) (6th (holding that 323 231 F.3d plu- was a opinion in Woodson 7. The Court's rule under a new did not announce Powell, Stevens, and that, rality of three —Justices did finding even if Mills Teague but also both and Marshall rule, Brennan Justices sec Stewart. it falls within the a new announce opinion Horn, given their judgment in the Jermyn v. No. concurred Teague exception); ond particularly defect notable was its “failure somewhat complex volved more questions: particularized to allow the consideration of “which facets of an offender or his offense relevant aspects of the character and rec- [are] relevant in capital sentencing,” and ord of each convicted defendant before the degree of “what consideration of relevant imposition upon him of a sentence of facets” does the require. Constitution Id. Woodson, death.” U.S. 98 S.Ct. 2954. The Court respond- 2978; (Stanislaus) see also Roberts ed, expansive language, that: Louisiana, Eighth [T]he and Fourteenth Amend- (striking down Loui- require ments ... sentencer statute). mandatory siana’s death penalty precluded be from considering, as a mit- plurality reiterated that death as a igating factor, aspect any of a defen- penalty is distinguishable kind from all dant’s character or record and of penalties, other and held that “the funda- the circumstances the offense that the of respect mental humanity underlying defendant proffers aas basis for a sen- the Eighth Amendment requires consider- tence less than death. ation of the character and record (fust added). emphasis The Court ex- individual offender and the circumstances plained that: the particular offense as a constitution- ally indispensable part process Given that imposition of death by inflicting penalty Woodson, of death.” public authority is so profoundly differ- (citations ent from all other penalties, we cannot omitted); Roberts, see also avoid the U.S. at conclusion that an individual- 333-34, 96 S.Ct. 3001 (plurality opinion) decision ized in capital essential cases. (noting that requires Constitution a The need for treating each defendant in “focus on the circumstances of particu- capital case with that degree of re- lar and offense spect character and propensi- due the uniqueness of the individu- offender”); Texas, ties of the Jurek v. al is far more important than in noncapi- 262, 271, tal L.Ed.2d cases . (1976) (plurality opinion) (stating that perfect There is no procedure for de- and Fourteenth Amendments ciding in which governmental cases au- require that the sentencer be allowed to thority should be impose used to death. circumstances). consider But a statute that prevents the sentencer The Court articulated the full import of in all cases giving indepen- Woodson’s constitutional directive more dent mitigating weight to aspects of the clearly Ohio, Lockett v. defendant’s character record and to in which circumstances of the proffered offense struck down a statute restricted mitigation creates the risk that range of mitigating factors that could be death will imposed spite by jury.8 considered Whereas Woodson may factors which call for a less severe involved a statute precluding any consider- penalty. When the choice is between life evidence, ation of mitigating Lockett in- death, unacceptable risk is capital punishment that case, inherently part violates nan took no in the and Justice Eighth the and Fourteenth Amendments. again ground Marshall concurred on the that capital punishment always is unconstitution- plurality 8. opinion Lockett's was by written al. Burger joined Chief Justice and by Justices Powell, Stevens, and Stewart. Justice Bren-

237 indeed, thereafter the Court the prudence; of the commands incompatible two of the as one the rule characterized Amendments. and Fourteenth Eighth sentence a valid death to prerequisites added). (emphasis at Id. See Amendment. by the imposed unequivocal in Lockett, stated the Court In 538, 541, Brown, 479 California require- constitutional to “meet terms that (1987); see 93 L.Ed.2d S.Ct. not must statute ments, penalty a death 302, 318, Lynaugh, Penry also mitigat- of relevant consideration preclude S.Ct. S.Ct. at Id. factors.” “it was dear early 1986 by (stating that Eddings v. Okla- later, in years Four the that Con Eddings” and Lockett from 869, 71 104, 102 S.Ct. homa, 455 U.S. “pre from a State prohibited stitution rule (1982), the constitutional L.Ed.2d considering from vent[ing] the sentencer adopted first was in Lockett articulated relevant evidence effect to giving and the Court. majority by a of applied and character background or defendant’s allowed question the statute Eddings, that offense circumstances to the miti- any of evidence to present defendants pen death imposing mitigate against at the statute gating circumstance—unlike the time landscape at legal The alty”). found judge the trial in Lockett—but issue conviction, however, further was Banks’s certain to consider was unable that he in which cases three shaped by additional law. matter as evidence mitigating the Lock to apply had occasion the Court Supreme at Id. rule. ett/Eddings as re- Lockett reversed, describing Carolina, 476 First, v. South Skipper cases capital “the sentencer quiring 90 L.Ed.2d rele- any to consider permitted be must and on Lockett relied factor,” id. mitigating vant death the defendant’s reverse Eddings to holding that: and ruled judge trial after sentence these courts by placed The limitations inadmissi was mitigating evidence certain they would evidence mitigating upon sentencing jury prohibited and ble in Lockett. the rule violated consider began The Court considering it. from not statute may as the State Just Lock established” “well reiterating its considering from sentencer preclude rule, stating: ett/Eddings factor, may the neither mitigating any ... disputing no There is consider, a matter as sentencer refuse preclud- be may not sentencer cases the evi- mitigating law, relevant any mitigating considering, as from ed instance, if the it as In this dence. char- of a defendant’s factor, aspect any jury to instructed judge had trial circum- any of the record acter or prof- evidence mitigating disregard the defen- of the offense stances ... sentencer behalf. on his fered a sentence as a basis proffers dant given weight determine may clear Equally death. than less But evidence. relevant may the sentencer rule that corollary excluding no weight may give precluded or be consider not refuse consideration. their from evidence such evi- considering (emphasis Id. dence. Lockett added). Thus, Eddings, (quotations solidi- rule was constitutional plurality’s ad- omitted). then The Court citations feature prominent a settled fied it: before question the sole dressed juris- death 238

“whether the exclusion from the sentenc lowed to any mitigating consider evidence. ing hearing Brown, testimony 543, of the petitioner 837; 479 U.S. at 107 S.Ct. see ... proffered deprived petitioner Saffle, 488-95, also 494 at his U.S. 110 S.Ct. right to place 1257 (holding before sentencer rele precluded the in mitigation vant evidence defendant’s punish challenge constitutional to a Noting requiring jurors ment.” Id. that it could instruction “hardly be avoid disputed” that the influence of sympathy the exclusion did in sentencing). have that effect, id., the Court concluded that “[t]he Finally, in Hitchcock Dugger, v. 481 U.S. exclusion the state trial court of rele 393, 1821, (1987), 107 S.Ct. 95 L.Ed.2d 347 vant impeded evidence the sen the Supreme unanimously reversed tencing jury’s ability carry out its task the defendant’s death sentence where an considering all relevant facets of the “advisory jury was instructed not to con character and record of the individual of sider, and the sentencing judge refused fender.” Id. at S.Ct. consider, of nonstatutory evidence mitigat later, 398-99, yearA circumstances.” Brown, 107 California 538, S.Ct. 1821. The 837, Court held that U.S. 107 S.Ct. such a 93 L.Ed.2d 934 (1987), circumstance comport “did not again the Court affirmed the consti requirements Skipper, Eddings, tutional principles established Lockett Lockett," 399, (cita id. at Eddings, S.Ct. 1821 but time upheld this omitted), tions which established that underlying Brown, death “the sentence.9 In may sentencer not refuse to consider defendant or challenged the constitution precluded from considering any relevant ality of “an informing jurors instruction 394, evidence.” Id. at 107 S.Ct. ‘must swayed by not be mere omitted). 1821 (quotations The Court con sentiment, conjecture, sympathy, passion, cluded, feeling.’” “[0]ur cases hold that the exclu prejudice, public opinion public o sion of mitigating evidence of the at sort wn, 540, at U.S. S.Ct. Br issue here renders the death in sentence 837. The began by reiterating that 399, valid.” Id. 1821; at see also requires Amendment that capi Burger v. Kemp, 790 n. tal defendants be allowed to introduce any (1987) (af S.Ct. 97 L.Ed.2d 638 evidence, relevant mitigating and further dicta, firming, the constitutional princi that consideration of such evidence is a “ ples established in Lockett and Eddings); ‘constitutionally indispensable part of ” Shuman, Sumner process of inflicting of death.’ Brown, at U.S. S.Ct. 837 (same). Woodson, (quoting 2978). Applying these principles to Although Banks primarily relies on the them, the instruction however, before the Lockett/Eddings cases, line of we mention Court found that it merely “prohibit[ed] case, another Supreme Court Andres v. juries from basing sentencing States, their deci United sions on factors presented trial, at the 92 L.Ed. 1055 that was cited and irrelevant trial,” issues and relied on another Court of fully limitations consistent with the Consti Appeals deciding this issue. See tution’s requirement be al- 1860; 377 & n. 9. The Nonetheless, has made clear that the decision constitutes Brown was not dictated part Lockett legal and Ed landscape prior to Banks’s dings. Saffle, See becoming conviction final. case, (6th unanimity capital in a instructions on Parker, 231 F.3d Gall role in the certainly plays some Cir.2001). Andres assessment involved an Andres conclusion re- landscape pen- legal death relevant a federal of interpretation and —a a to it whether citation statute, by of inforced Court’s question the the and alty pursu- Mills, & at 377 unanimity instructions itself. See trial court’s least, at Id. very erroneous. At the were 1860. to that statute n. ant that, statutory scheme S.Ct. 880. a number of themes Andres invokes finding of the that such com- was structured with and are consistent significantly, imposition automatic meant the guilt later constitu- to Court’s plimentary the quali- was unless the verdict penalty death For penalty jurisprudence. death tional capital punish- “without by phrase the fied instance, a concern for indicates Andres that argued government ment.” Id. jury instruc- clarity particular was guilt as to jury’s the determination re- tions, “should be noting that doubts unless penalty to the death conclusive as Andres, the accused.” in favor of solved qual- to unanimously decided jury the then 880; also see Id. The verdict. ify the Mills, 1860. however, construc- proper the that opined, Further, noteworthy that particularly it is “jury’s upon decision the required that tion that was of the Court’s decision upshot the of punishment the whether guilt both and in- were jury and instructions the statute be unani- must imposed be death should a in which avoid a situation terpreted to is, That 880. Id. at mous.” operation could be juror prevented by— jury consider that required the Court unanimity avoid requirement a be should death and be unanimous and, accordingly, by penalty, death recog- it Although imposed. giving effect jurors of other views —from urged ... interpretation that “the nized an was that death his or her belief errone- proven cannot the Government particular inappropriate sentence found its certainty,” ous Andres, at 748- circumstances. with the “more consonant construction of the stat- purpose general humanitarian legal this Banks agree with Anglo-American We history of the and the ute and by Lockett exemplified landscape 68 S.Ct. 880. Id. at system.” jury —as least An- including at instruction Eddings, held but also The Court then Brown, Woodson, and dres, Skipper, the District Court jury given po- interpretation Banks’s supports erroneous conveyed strongly Hitchcock— 749-52, 68 S.Ct. 880. de- Id. Mills did the statute. that the Court sition the Court given, law, the instructions but instead Under any new velop principle concluded, erroneous- jury might have and well estab- upon clear merely relied that, if “reasonably conclude[d] ly rules, but that Mills such lished constitutional mercy, the grant agree to not] all [could legal dictated compelled unqualified.” stand must verdict of guilt could jurist no reasonable landscape, Accordingly, result. Insofar a different reached have or- the sentence Court overturned evidenced the landscape a new trial. dered and insis- recognition unwavering prohib- Eighth Amendment tence place decision took Clearly, Andres consider- the sentencer’s and, barrier statutory context within different evidence, provided ation view, clarity. How- a model of is not our instruction that a clear indication it, involved ever, like because prevent could work to juror a from nicely consid- also fits with the concept of the ering any evidence, all mitigating jurist” “reasonable that is referenced in whether because of unanimity require- many of the Court’s cases in recent this otherwise, ments or is, would be constitution- area. That we ask whether the existing ally infirm. precedent forth set a rule that all reason- jurists able would agree impels or drives In reaching conclusion, this we are not the result in the new presented. situation unmindful of the difficulty employing Here, the existing case law clearly provid- Teague’s mandates to divine whether the ed that sentencers could prevented not be legal landscape supports a finding that a from considering any and all mitigating new, rule is or is not given the Court’s Mills, evidence. In merely rec- various formulations of the measuring ognized perceived need for una- stick for determining particular whether a nimity could constitute one such unconsti- case does or does not announce a new rule. tutional barrier. Even if one were to It is not precisely just clear how short the question whether the result was “dictated” “step” must be between existing precedent or “commanded” the constitutional rule and the announcement, current or how itself, it surely was compelled in the sense strong pull precedent must inbe previous pronouncements would con- certain direction. certainly There must be strain all jurists reasonable to conclude the gradation difference, some or or the rule in situation in Mills to be unconstitutional. question would not be arguably even new. It perhaps is shading this that distin- Thus, a decision that does extend reason- guishes our view of Mills from that of our ing may nonetheless be viewed as not concurring colleague.10 “new” Teague. The Supreme Court has acknowledged as much when it has reasoning difficulty noted the of determining whether rhetoric in Mills itself follows form from a new rule was announced where “a deci- the legal landscape, and bolsters the view sion extends the reasoning prior our that it was not a new announcing constitu cases.” Saffle, 494 U.S. at tional Initially, rule. we note “[i]t is 1257; Graham, see also significant” 506 U.S. at that Mills did explicitly and 892; Butler, 412-13, 494 U.S. at heavily rely on controlling precedent. 110 S.Ct. 1212. To read Lambrix, certain of the 117 S.Ct. 1517. operative terms the Court has employed, Unlike Lambrix, situation in which such as “dictated” “commanded,” nar- the Supreme Court found a “new rule” in rowly, such would require ex- part because the underlying decision cited press direction from the existing prece- only a single case—and awith “cf.” signal dent, would be to unrealistically that, require 528-29, see id. at 117 S.Ct. 1517 — courts to anticipated have all future sce- replete Mills is references control narios in order for later cases to not an- ling precedent; the Court frequently cited nounce a new rule. Another term the to and quoted Lockett, Eddings, used, Court has “compel,” has been de- Skipper, and Hitchcock. See “force, drive, fined as to impel.” [or] Web- U.S. at Moreover, 108 S.Ct. 1860. ster’s Third New Int’l Dictionary 463 the Court used language analysis (1993). This seems not only be a more state, does not merely but indeed functional description test, of the exhorts, but it precedent rich compelling its concurrence, In her Judge Sloviter focuses legal tated” landscape in concluding on whether "commanded” or "dic- that it announced a new rule. circumstance: ence of precise result. The Court’s reasoning and cause, if petitioner’s here: inter- Whatever wording repeating bears sentencing process pretation of height of arbi certainly be the It would correct, necessarily the conclusion would impo require trariness to allow [sentencer’s] under the the same: “Because the the death sition by peti postulated ... circumstances failure consider all in beyond dispute that .... It is imposition tioner evidence risks erroneous “ not [may] case ‘the sentencer capital sentence, a in violation of plain the death as a considering, from precluded Lockett, this duty it is our to remand factor, any aspect of a defen mitigating resentencing.” Eddings case for any character or record dant’s Oklahoma, U.S., 117, n., at 102 455 of the offense the circumstances 878, (O’Connor, J., S.Ct., at n. concur- a for a basis proffers the defendant ring). ” Eddings v. less than death.’ sentence then, question, critical is whether 104, Oklahoma, 110, 102 S.Ct. the sen- petitioner’s interpretation of 869, 874, quoting 1 71 L.Ed.2d jury tencing process is one a reasonable 586, 604, Ohio, 98 Lockett could have drawn from the instructions 2964-2965, 2954, 57 L.Ed.2d judge the trial and from the given by (emphasis (plurality opinion) case. employed verdict form this v. South Car original). See Skipper Mills, 374-76, 108 486 U.S. at 1, 4, 1669, olina, 476 106 S.Ct. hardly language, this can be dis it Given (1986). 90 L.Ed.2d a that Mills did announce new not puted may not corollary that “the sentencer recognized, it was As rule.11 from precluded to consider or be refuse Lockett/Eddings by the established well mitigating evi ‘any considering relevant ” prohibit of cases Constitution line “well established.” equally dence’ is jury’s consideration any ed barrier to added), quoting Ed (emphasis Ibid. evidence, mitigating “[w]hatever S.Ct., U.S., at 877. at dings, 1860. The 108 S.Ct. cause.” indicated that the cases had never relevant particular barrier or form some source decisions, our it is not relevant Under to its constitution would be relevant took the sentencer’s whether the barrier to consistently and ality; instead had evidence of all consideration language, in clear prohibited, repeatedly statute, Ohio, Lockett v. interposed by is Hitchcock, See, e.g., barrier. any Dugger, 481 U.S. supra; Hitchcock v. (“[I]n cases, at 95 L.Ed.2d may refuse to consider sentencer court, (1987); sentencing Ed by the any rele considering precluded or be Oklahoma, an supra; dings v. (quotations mitigating evidence.” vant ruling, v. South evidentiary Skipper omitted)); at Skipper, 476 U.S. Carolina, same must be supra. The also, (same); Saffle, 494 U.S. e.g., see juror’s single respect true with (“Lockett Ed 110 S.Ct. 1257 finding pres- against vote holdout tend Teague unique providing "evidence extensive Although it has noted that for been — language always announce a purposes opinion's prove” is not that Mills did not an Butler, "conclusive,” see, O’Dell, e.g., n. 521 U.S. at 161 new rule. find the we nonetheless S.Ct. 1969. reasoning in Mills to be rhetoric and Court's dings command that the State must provides allow rule some evidence that give effect to “new” Teague). evi decision.”). dence in making the sentencing Moreover, we note that recent The extent of the holding relevant references to the test have then, merely acknowledgment of a indicated that the question” “determinative already conclusion required by govern under Teague ju is whether reasonable rists, ing constitutional that if reading rules: the case in law existence form, final, the time struction and verdict the conviction became could because of its have concluded that unanimity sentencing Banks’s requirements, precluded juror “was not constitutionally infirm.” Gra mitigation consideration and all evi ham, (em S.Ct. 892 dence, resulting death sentence would phasis original); see also id. at be unconstitutional. See McKoy v. North (“The S.Ct. 892 result in a given case is not Carolina, 433, 438, 110 S.Ct. by dictated if precedent it is susceptible to (“[Ajllowing a among minds, or, debate reasonable put juror ‘holdout’ to prevent jurors the other differently, if jurists may reasonable dis from considering mitigating evidence vio agree.”) Black, (quoting Stringer v. 503 lated the principle established Lockett v. 222, 238, U.S. 117 L.Ed.2d Ohio, that a sentencer not may preclud be (1992) (Souter, J., 367 dissenting)). Given ed from giving effect to mitigating all evi the Court’s reliance on the Lock (citation omitted)). dence.” That these ett/Eddings rule as an require established constitutional principles were settled be ment of Amendment fore Mills is further evidenced the Ma time final, Banks’s conviction became we ryland Court Appeals decision reversed persuaded are that the relevant rule by the Supreme itself, Court in Mills as Mills was “apparent,” and that no “reason disagreement between Court of jurist” able could have reached a different Appeals’ majority and dissenting opinions Lambrix, conclusion. 520 at 117 U.S. was unrelated to the underlying constitu 1517; also, Butler, e.g., see tional govern rules that capital sentencing. at (asking whether the Mills, 13; See A.2d at id. at 527 relevant outcome was “susceptible to de (McAuliffe, J., (“[T]he A.2d 3 dissenting) minds”). bate among Indeed, reasonable majority and I are in agreement essential as the settled Lockett/Eddings rule was a as to the principles basic of law that con blanket prohibition on barriers to the trol in a sentencing proceeding.... jury’s of mitigating consideration circum A mitigating circumstance ... must be stances, we find ourselves unable to con juror considered each who believes it to struct analytic framework, consistent have proven exist, been irrespective of with legal landscape, which Mills jurors whether agree all exists.”); that it could have come out differently. Lam Cf. U.S. at 108 S.Ct. 1860 brix, at U.S. 117 S.Ct. 1517 (“The [Maryland Appeals] Court of did not (“There were at least three different ... dispute that if the statute and form were approaches that would suggested have read petitioner suggested, jurors would outcome.”). different A failure to decide be improperly prevented from giving due Mills as the Court in fact decided would (em consideration to mitigating evidence.” just not have taken an “illogical” or phasis in original)); Butler, see also 494 “grudging” application of the Lockett/Ed U.S. at (indicating rule, dings Butler, that actual disagreement on a constitutional S.Ct. it would complete- have taken a 311-12, 109 S.Ct. Id. at issues.” “special jurist reasonable Any one. ly untenable question before precise decide 2934. compelled” felt have “would sen- defendant’s O’Dell, was whether accordingly. “because the Lambrix, was unconstitutional tence (quoting to take 1517). adequately instructed was not jury 527, 117 S.Ct. evi- mitigating all of his consideration into our con- the Commonwealth While in the Texas the terms and because dence fact that seize on the colleague curring such were not defined issues special in Mills justices dissenting were four there give jury could way that the consider could jurists” “reasonable that arguing in answer- evidence mitigating to his effect time of at the the outcome have differed 313, 109 S.Ct. 2934. ing them.” the Mills case, reading of a careful reversed the the Court Teague, Despite dissenting makes clear dissent in- sentence, finding that death princi- with the issue not take justices did did issues structure special structions all able to consider jurors must ple that to consider allow adequately requirement without factors evidence of defendant’s ques- never unanimity. The dissenters child- and an abused retardation mental major- by the strong statements tioned Lockett and stated hood. in Mills the result to the effect ity Texas, 428 along with Jurek Eddings, line Lockett/Eddings by the mandated 929 2950, L.Ed.2d 262, 49 96 S.Ct. U.S. majori- Rather, the they viewed of cases. ju- “Texas (1976), rule that the “dictated” as to test wrong the having applied ty as jury given must, request, be upon ries jurors misunderstood that 'probability the it for them possible make that instructions setting pre- the factual in the instructions evidence th[e] give effect 394, Mills, 108 486 U.S. at sented. See penalty death the whether determining in J., dissenting) (Rehnquist, 1860 S.Ct. Penry, imposed.” should be (“[T]he a reasonable is whether question Graham, 2934; 318-19, see also 109 S.Ct. in- the trial court’s juror operating (indicating S.Ct. at 113 892 evidence have considered would structions pro- of cases Lockett/Eddings line the in a constitu- mitigating circumstances mitigat- in which “relevant situations hibit manner.”). tional the effec- beyond placed evidence ing [is] in the Su support finds conclusion Our sentencer,” require and reach of the tive Ly Penry in v. decision preme Court’s “reliable means have a must 106 naugh, 492 U.S. mitigat- effect to” giving mitigating (1989). Penry, In the Court L.Ed.2d evidence);12 U.S. Saffle, 494 ing death challenge to Texas a considered (same). scheme, jury’s which limited nonretroactivity of In arguing sentence appropriate consideration two oth- invokes Mills, the Commonwealth resolving three trial to a during place did issues” structure “special do hood—the concurring colleague, we our 12. Unlike youth, as adding any- mitigating evidence such certain v. Collins view Graham not landscape. legal positive character and significance family background to the thing of that, Graham, Supreme decided reach.” "effective sentencer’s In traits within the held that Penry which Graham, unlike S.Ct. —in give the not structure did "special issues” Thus, was not favor in Graham's a result genuine opportunity for consideration jury a Penry could Penry rule and the dictated such as capacity attributes diminished effect. given retroactive child- an and abused retardation mental er ment); 457-471, (Sca Court decisions handed down id. at 110 S.Ct. 1227 First, after Mills. lia, J., Commonwealth re dissenting). But see id. at on dissenting opinion lies and one of (Blackmun, J., concurring) the concurring opinions McKoy in v. North (stating that in Mills Court conclud “[t]he Carolina, ed that a rule mandating agree unanimous argue that reason any juror ment before could a consider minds disagreed able could on have particular mitigating factor was forbidden in outcome Mills. Caspari, See also 510 by decisions in Eddings” [its] Lockett and (noting S.Ct. 948 (citations omitted)). Despite the Common conflicting holdings of state and federal otherwise, suggestion wealth’s we un are disagreement courts indicates among rea McKoy convinced that anything evidences minds); Smith, Sawyer sonable 497 U.S. but the correctness our conclusion. The 227, 236-37, 111 L.Ed.2d concurring dissenting opinions in (1990) (noting that the fact that three McKoy controlling are not authority, and justices prior dissented ease casts opinion our today is in accord with the doubt on argument holding majority opinions Mills both compelled that case was by prior prece McKoy, each of which independently dent); Lockhart, Miller v. 65 F.3d makes clear that Mills premised on a (8th Cir.1995) (citing opinions in McKoy). straight-forward application of settled con In McKoy, the Supreme Court affirmed precedent.13 stitutional unconditionally applied Secondly, places Commonwealth scheme, North Carolina’s sentencing hold great reliance the Supreme Court’s rea- there, the unanimity scheme pre soning Parks, cisely like the one unconstitution Saffle (1990). ally precluded jurors giving effect to Saffle, the Supreme upheld they might evidence believe called for a instruction required that the jury to “avoid sentence less than McKoy, death. any influence in 439-440, sympathy” sentencing, U.S. at 1227. In the finding that sought Saffle, the rule dissenting opinion one of and the concur which ring however, grounded was opinions, in the justices principles four es- in McKoy expressed tablished in disagree Eddings, some level of Lockett and was a proposition ment the new rule Teague. that Mills Id. at was merely an application of the Court, S.Ct. 1257. According to the Lockett/Ed dings rule. See id. at “Lockett and Eddings speak [did] not di- J., 1227 (Kennedy, concurring in judg- all, the rectly, if at to the presented” issue in 13. Moreover, to the extent the with, Common sion here formally is not inconsistent McKoy wealth relies on minority's the instance, view the Circuit's decision in Mil actually that Mills was not decided on Lock Lockhart, (8th Cir.1995), ler v. 65 F.3d 676 ett/Eddings grounds, unpersuaded we are that that Mills was newa rule. Our conclusion argument particularly their is relevant. Ask may that Mills retroactively applied be ing whether Mills is retroactive in this case is essentially habeas acknowledgment is an that asking shorthand for whether the rule Banks (and what Banks what sought) seeks Mills is a applied seeks to have on habeas—that the rule, application clear Lockett/Eddings the prohibits unanimity Constitution instructions a principle constitutional well prior settled preclude jurors giving proper from con Thus, his becoming conviction final. could it proffered mitigating sideration evidence— argued be it essentially is irrelevant a Teague given was new rule under the date whether or inquiry not the rule under his conviction became final. It is for similar actually decided in Mills. that, below, reasons as we discuss our deci new the that Mills did not announce a rule. may instruct “whether the State Saffle, above, harm in decision on the As discussed the identified to render its sentencer well sympathy.” Id. the Court—as without evidence concluding, In so in dissenting opinion Maryland rules a distinction between potential noted Appeals Court of —was evidence the mitigating “to what relating jurors precluded considering were from in mak- to consider jury permitted must any mitigating all evidence. See and decision,” re- and those sentencing its mitigat- “to hoiu it must consider lating Quite anti-sympathy unlike the instruction original). (emphasis ing evidence.” concern Saffle, considered Mills does difference,” logical a and simple “There is precise harm addressed the Court stated, gov- rules that “between Eddings: in Lockett and Its focus was on jury permit- must be ern what factors i.e., jurors any and all—evidence what — making sentencing consider ted to Although “unanimously” could consider. govern and rules that how decision adverb, clearly meaning an considering jury may guide State “unanimously” term as used here does not a reaching weighing those factors actually jury relate to “how” the is to view An Id. at 110 S.Ct. 1257. decision.” (as Rather, sympathy). the evidence does pre- does not anti-sympathy instruction barrier, unanimity presents poten here considering any miti- jury clude the from jurors tially preventing considering from evidence; merely it instructs them gating mitigating and all evidence. To the recourse that evidence without to consider suggests extent that that such rules Saffle id. at sympathy. See by Lockett and Ed clearly prohibited are (“The full and must not cut off State dings, support it lends to our conclusion evidence; fair consideration Saffle, here. See the choice grant but need not (stating preventing according to sentencing decision make the giving effect to “considering, weighing, caprice.”). Accordingly, its own whims or .... come[s] evidence all of Ed- concluded that Lockett and the Court Eddings”). under the rule of Lockett anti-sympa- an dings prohibit such do 490-94, 110 S.Ct. thy Finally, instruction. we note that our conclusion Brown, 1257; ruling see also in a recent support finds additional an (affirming constitutionality of S.Ct. 837 Appeals for the Sixth by the Court of instruction). anti-sympathy Parker, 265 In v. 231 F.3d Circuit. Gall (6th Cir.2001), held that the Sixth Circuit Commonwealth, well as our con- as not on habeas was application of Mills “what” curring colleague, seizes Saffle’s because Mills prohibited by Teague, both as supporting “how” distinction versus announce a new rule and because did not effect, rule; in that Mills was new view Teague’s the second of Mills falls within requirements jury unanimity argues it re- nonretroactivity. With exceptions to are noth- made unconstitutional Mills conclusion, which is the former gard to how the must regarding but a rule here, Circuit relevant Sixth more evidence, i.e., consider by the that Mills was “dictated found unanimously. per- While must consider rule,” the lan- emphasized Lockett upon reflection haps viscerally appealing, above, in which the guage quoted in Mills with- does not linguistic this shorthand it did made Indeed, that, “clear[that] if scrutiny. we believe stand to a new apply than Lockett nothing the conclusion more anything, supports Saffle factual (8th situation.” Id. at Cir.1995), Sixth F.3d 676 Eighth Circuit Circuit also noted the Supreme Court’s Court of Appeals held that Mills an- citation in Mills to v. rule, Andres United nounced a new in but did so case States, which, Gall, L.Ed. only like Lockett had been which the court characterized prior decided to the defendant’s conviction half-century as “a old death rever- becoming final. question 685. The sal” which granted “the Court a new of whether Mills was dictated the plu- trial after finding fault in instructions that rality opinion in may Lockett alone abe ‘probab[ly]’ juror induced a ‘reasonable’ to close one—as by the demonstrated contra- conclude unanimity was needed to dictory opinions of Sixth ‘qualify’ a guilty verdict of in order to question Circuits—but answer to the preclude Gall, a death sentence.” 231 before us is clear. considering When Andres, F.3d at (quoting in conjunction Lockett Eddings, 880). Lockett, “Given An- majority which a of the adopted dres, and the Court’s clear language in rule announced plurality, Lockett Mills,” the Sixth Circuit concluded that obvious, the result in Mills was especially Mills did impose a new constitutional given the Court’s continued reliance on Gall, obligation. 231 F.3d at 323.14 and application rule, prior Lockett Mills, in such Skipper cases as and Hitch- It is worth emphasizing here that cock. Banks’s case far stronger than the one presented Sixth Circuit Gall. The Court of Appeals for the Fifth Cir Whereas Gall’s conviction became final in cuit has repeatedly also stated that Mills 1981, limiting legal landscape pri- announced a new rule Teague. See marily Lockett, the plurality opinion in Johnson, (5th Woods v. 75 F.3d Banks’ conviction was not final until late in Cir.1996); Collins, Nethery v. 993 F.2d 1987, only months before Mills and after (5th Cir.1993); 1161-62 Wilcher v. in Eddings, decisions Hargett, (5th 978 F.2d 877-78 Cir. Hitchcock, Skipper, and in all of which a 1992); Collins, Cordova v. 953 F.2d clear majority of the applied (5th Cir.1992). However, previ as we

Lockett rule and reversed a sentence of ously I, noted Banks the court has not death. analyzed or explained its conclusions. I, contrast to the Sixth Circuit’s deci- Banks 271 F.3d at 542 n. 16. Accord Gall, sion in two Courts Appeals ingly, we have find little in the Fifth Circuit’s held that Teague bars application persuade of decisions to us applica that our Mills on Lockhart, habeas. In Miller v. tion prohibited Mills is by Teague.15 14. Similarly, opinion in an previous we have than a mere extension of existing prece then ly referred thoughtful,” Id.; Frey also, "brief but dent to a factual new scenario.” see Fulcomer, e.g., Hopkinson (3d Shillinger, F.3d F.Supp. 920 n. Cir. 1997), ("The 742 (D.Wy.1991) the District of Amendment Delaware concluded in Eddings] [under prohibits Lockett barriers "requirement 1993 that juries the capi that to of mitigating consideration evidence tal permitted cases be mitigat consider all whether statute, evidentiary result from rulings, ing aspects factors and of a defendant’s char Thus, instructions. Mills give acter and to effect to that evidence was McKoy simply are applica factual different firmly established” in Eddings. Lockett and tions of principle that established and are Snyder, 676, DeShields v. F.Supp. 829 688 habeas].”). applicable [on (D.Del.1993) Delo, (quoting Byrd v. 733 F.Supp. (E.D.Mo.1990)). 1334 Accordingly, Dixon, 15. We note McDougall also that in v. the court found that Mills “nothing was more 518, (4th 1990), 921 F.2d 539 Cir. of Court

247 properly when it is ar- Teague question TV. Horn, 122 government.” gued in this case was ruling previous Our therefore, must as a at 2148. We S.Ct. only inso- reversed issue, which, Teague address al- threshold unnecessary to decide it far as we held though plurality opinion, a has since been application. had retroactive whether Mills setting forth the accepted by the Court application our we now hold that Because retroactivity analysis. standard for Banks’s sen- habeas review of of Mills on Teague, we do prohibited tence was not Teague sought chal- petitioner previous of our the remainder disturb jury, of his as the lenge composition hold- its discussion and including opinion, peremp- had used all 10 of his prosecutor merits of Banks’s regard to the tory challenges Teague to exclude blacks. augment merely Mills claim. We success, without argued throughout, had essentially replacing its discus- opinion by was not a fair cross section. analysis with the Teague issue sion petition His habeas judgment requir- Accordingly, our here. decision in Batson sought the benefit its for Banks will penalty phase ing a new 79, 1712, Kentucky, 476 U.S. v. unchanged. remain (1986) that under (holding 90 L.Ed.2d 69 prosecu- Equal Protection Clause SLOVITER, concurring. Judge, Circuit give tor had the burden to race-neutral judgment I to adhere to the continue peremptory for its use of chal- explanation instructing the District Court the court from the lenges persons to exclude black corpus writ of habeas grant provisional jury). previously had held petit phase. petitioner’s penalty to the directed Hardy, in Allen v. 478 U.S. S.Ct. However, the issue on my response to curiam), 2878, (per 92 L.Ed.2d 199 Supreme Court which the United States Batson, portion which overruled a this to us differs from remanded case Alabama, 380 Swain v. U.S. majority. (1965), not be L.Ed.2d 759 could collateral review be- to a case on applied I. “ ‘explicit an cause Batson constituted remanding this ” opinion curiam per prior precedent.’ break with substantial Banks, case, v. Horn (quoting Teague at (2002), S.Ct. 2878). Allen, 258, 106 S.Ct. perform that we Supreme Court directed in the contention Su- Teague’s second Lane, Teague v. analysis an under Court, a viola- that he established preme Equal Protection Clause tion of (1989), application of as to the retroactive Swain, because procedurally barred Maryland, v. that claim to presented never (1988). The Court 100 L.Ed.2d state courts. Caspari that we had contravened believed Thus, Teague’s fair Bohlen, the Court turned claim, relied on the where he “in cross section [the Court] which L.Ed.2d Louisiana, holding Taylor courts must address held that federal unnecessary to consider wheth indicated in court found Appeals for the Fourth Circuit McKoy rules were in fact new McKoy er Mills and were new rules dicta that Mills and Dixon, within the sec it held that fell Teague. F.2d because In Williams v. however, Cir.1992), 448, (4th exception. ond n. 3 692, (1975), L.Ed.2d ing Mackey, 401 U.S. at 1160). required Sixth Amendment exception second is for “water- venire be drawn from a fair cross shed procedure.” rules of criminal Id. section of the community. Teague sought In the Supreme opinion in Cas apply holding Taylor to the com- pari, the Court elaborated on responsi position of petit jury. In holding bility of a federal court faced with a habe acceptance Teague’s claim would consti- petition seeking relief based on a rule tute a new rule that apply would not announced after the defendant’s conviction retroactively review, to cases on collateral became Caspari, final. 510 U.S. at Supreme Court reformulated the stan- 114 S.Ct. 948. The court survey must “the previously dard enunciated in Linkletter v. legal landscape” as it existed on the date Walker, the defendant’s conviction final became L.Ed.2d 601 and enunciated the and then determine if “a state court con “[ujnless principle that they fall within an sidering [the claim defendant’s] at the time exception rule, general to the new constitu- his conviction became final would have felt procedure tional rules of criminal will not compelled by existing precedent to con applicable to those cases which have clude that the rule required [he] seeks was become final before the new rules are an- (citations by the Constitution.” Id. omit nounced.” Teague, 489 U.S. at ted). If the court determines that S.Ct. 1060. The explained rule, defendant seeks the benefit of a new “[application of constitutional rules not in the court must decide whether that rule existence at the time a conviction became within falls one of the two narrow excep final seriously principle undermines the tions non-retroactivity to the finality principle. which is operation essential to the Id. of our justice criminal system.” 109 S.Ct. 1060. The rule on which Banks relies is that rule,” As to the definition of a “new enunciated in Mills. the Su explained in Teague that preme Court vacated a death sentence general

“[i]n ... a case announces new where the sentencing court’s instruction rule when it breaks new ground impos- left a substantial probability that ju es a new obligation on the States or the may rors have believed they had to be Federal Government.” Id. at unanimous particular existence of a continued, S.Ct. 1060. It “a case an- mitigating factor before it could be nounces a new rule if the result was not weighed against an aggravating factor in dictated precedent existing at the time determining whether the death sentence the defendant’s conviction became final.” imposed. should be Id. The recognized two exceptions to 384, 108 S.Ct. 1860.

its rule of non-retroactivity, both derived

from Justice Banks contends that in opinion Harlan’s Mackey v. the con- States, 667, 675, United clusion court, of his direct review state (opinion Court had con- decided numerous curring in judgments in cases part creating upon dissent- framework which part). predicated, first is for a Mills was rule that and that therefore “ places ‘certain primary, kinds of private Mills should not be regarded as a new rule individual beyond conduct power for purposes of non-retroactivity under criminal lawmaking authority to pro- Teague. argues Banks the time ” scribe.’ 109 S.Ct. 1060 (quot- his sentences became final as defined un- Supreme Banks next notes the decision Roberts Caspari, Teague and der Louisiana, 325, 333-34, ten cases before had decided v. 428 U.S. pro- Amendment “embody 3001, (1976), 49 L.Ed.2d 974 S.Ct. decided process a mandated against state Jurek, hibition day Gregg, Proffitt, the same as juror consider- creates a barrier Woodson, which also struck down the the char- evidence of indispensable ation of because, penalty statute like that in death a of an offender in death acter and record Woodson, it failed to provide Supp. proceeding.” Appellant’s penalty meaningful opportunity for consideration cases among counts those Br. at 3. He of character and of the defen- record 288, Georgia, 92 S.Ct. Furman v. 408 U.S. dant or the circumstances of the crime. 2726, (invalidating 33 L.Ed.2d 346 emphasizes Banks then the decision in a risk that created substantial procedures Ohio, 586, 608, Lockett v. S.Ct. in an imposed would be that death 2954, (1978), 57 L.Ed.2d 973 where the manner), and, capricious sur- arbitrary and Supreme found unconstitutional a after Furman the three cases prisingly, state statute that allowed consideration' of imposition of death sen- that sustained a fac- only limited number of tences, Texas, 428 Jurek v. line, Continuing along this Banks tors. (1976); Gregg 49 L.Ed.2d 929 S.Ct. Oklahoma, Eddings lists v. 455 U.S. Georgia, v. 428 U.S. 113-15, (1982), 71 L.Ed.2d 1 S.Ct. (1976); and v. Flori- L.Ed.2d 859 Proffitt that a Supreme where the Court ruled da, 2960, 49 L.Ed.2d 428 U.S. decided, sentencing judge improperly as (1976). that al- argument Banks’ law, matter of that he could not consider sentencing were though the death schemes family evidence of a defendant’s troubled cases, in all held constitutional three history and as miti- emotional disturbance respective schemes allowed sentencer gating evidence. to consider the defendant’s evidence mitigating circumstances. Skipper He references v. South next Carolina, 1, 4,

Banks states that Woodson v. North Carolina, 280, 96 S.Ct. (1986), holding L.Ed.2d 1 the trial (1976), L.Ed.2d 944 where sentences of jury could judge improperly ruled jurors were overturned because the death conduct in good not consider a defendant’s miti- prevented considering were all evidence, prison mitigating California circumstances, gating Court Brown, 538, 541, 107 requirement “recognized constitutional (1987), the sentence upholding sentencing’ capital an ‘individualized jury by interpreting of death instruc Supp. Br. at 4. The Appellant’s cases.” line Eddings tion to be consistent with the three reasons for plurality gave Woodson cases, opinion and the Hitchcock im- holding: the state statute at issue 398-99, Dugger, 481 U.S. mandatory death sentence for cer- posed short decided offenses; provided tain no standards to thereafter, ly where determining which of- guide the hearing was sentencing held that a new death; fenders should be sentenced to required advisory jury because to consider it did not allow the sentencer evidence of judge should have considered and record of an offender the character nonstatutory mitigating circumstances. and the circumstances of the offense as cases, line of argues Banks this death part process inflicting in a the rule that a embodying penalty. 428 U.S. Eighth all permitted

case must be to consider violation of the Amendment be- factors, holding mitigating compelled jury adequately was not instruct- cause in re “prohibited Mills that state from mitigating ed to take into consideration the jury to be unanimous before quiring mental and evidence of his retardation find the of a particular could existence background. Under the state sen- abused mitigating Appellant’s circumstance.” scheme, tencing jury if the answered in the continues, Br. Supp. at 9. He “The Wood “special affirmative all of the three issues” son-Lockett-Eddings-Dugger lines statute, questions required by the the sen- cases dictate such a Id. He relies result.” tencing required impose court was in following language on the Mills: death sentence.2 The same statute had decisions, Under our it is not relevant previously in challenged been Jurek where whether the barrier to the sentencer’s rejected challenge, holding the Court mitigating consideration of all evidence interpret that the state court would Ohio, statute, interposed by v. Lockett question jury second to allow the to con- omitted]; supra; by [citation the sen Penry pe- sider evidence. The court, Oklahoma, tencing Eddings v. su argued titioner would not pra, evidentiary ruling, Skipper an have been aware that the evidence on Carolina, supra. The same South relied, which he mental retardation and respect single must be true with to a abuse, childhood could be considered as juror’s against finding holdout vote the mitigating circumstances unless it was so presence of a circumstance. instructed the trial court. The Su- Whatever the ... cause the conclusion preme agreed Penry had a necessarily would be the same: ‘Because right resentencing, and remanded so failure to consider all of [sentencer’s] sentencing hearing that a new could be the mitigating evidence risks erroneous held with informing instructions sentence, imposition in plain of the death give that it could effect to the mitigating Lockett, duty violation of it is our Penry’s evidence of mental retardation and resentencing.’ remand this case for Ed in background considering abused whether Oklahoma, U.S., 117, n., dings v. impose a death sentence. (O’Connor, J., 102 S.Ct. 869 concurring). 486 U.S. at in Br. quoted Appellant’s Supp. at 9. decision, reaching Before the Court granting Penry considered whether the re Banks support Penry finds further lief Lynaugh, sought he would create a “new rule” (1989),1 only Teague. under case Court concluded that retroactivity applying series to consider the was not a new rule Teag issue. claimed, because, petitioner in Penry inter ue at the time the petitioner’s alia, final, that he was sentenced to death in conviction already became it had holding Penry rejecting 1. The the claim that the defendant would commit criminal acts of prohibits Amendment the execu- continuing violence that be a would threat to person abrogated tion of a retarded (3) evidence, society; if raised Virginia, Atkins v. whether the conduct of the defendant kill- (2002). ing the deceased was unreasonable in re- sponse provocation, any, by to the if the de- special 2. The issues were whether the de- Penry, ceased. fendant’s conduct was deliberate and with the expectation reasonable that death would re- sult; (2) probability whether there is a (Scalia, J., Eddings dissenting opinion, with Rehn- decided in Lockett been J.). C.J., O’Connor, quist, prevent could not sentencer a state giving and effect to miti considering from appeals The courts of that have consid the defendant’s back gating evidence from ered whether Mills announced a new rule the or circumstances of ground, character on In have divided their view. Gall v. offense. Id. at Parker, (6th Cir.2000), 231 F.3d denied, cert. pre-Mills the reads Commonwealth Ap Court of Banks, leading differently than does cases peals for the Sixth Circuit held that the a it to that Mills announced new conclude in rule Mills was not new. The court It reads the decisions on which rule. explained that in firmly place Lockett was relies, Lockett, Eddings, Skipper,

Banks in petitioner’s 1981 when conviction be Hitchcock, represent which where final, came and stated that a state court law at the time Banks’ conviction stood facing the claim that petitioner’s time final, reversing the death sen- became as compelled apply would have felt Lockett the sentencer “had imposed tences because ultimately as Mills did in 1988. Id. at 323. considering from a entirely precluded been It further stated Mills did not break mitigating evi- category appropriate ground impose obligation new a new on Br. at 4. It Appellees’ Supp. dence.” government. the states or federal Id. See cases, in points out that contrast to those v. Snyder, F.Supp. also DeShields jury the Mills could hear and consider (D.Del.1993) (concluding 687-88 Mills did mitigation that the defendant evidence of Teague not a new rule for pur announce states presented. Commonwealth poses). (which uncon- that the Mills rule declared jurors requirement Circuit, stitutional Unlike the Sixth the Court of agree unanimously mitigating on a factor Appeals for the Circuit concluded in went weighing step) to be used that Mills announced a new rule that does beyond previously principle enunciated apply retroactively not on collateral re Lockhart, must be allowed to consider view. Miller v. 65 F.3d (8th Cir.1995), mitigating evidence. The Commonwealth 685-86 the court held that argues that Mills enunciated a new rule by the result in Mills not dictated was time, rejected, inform, when it for the first prior may cases and while Lockett Mills, a requirement unanimity particular Lockett did not govern control or mitigating factor. compel holding the further that a unanimi circum ty requirement mitigating The Commonwealth also contends The Court of stances unconstitutional. decision, the result a 5-4 was not the Fifth reached the Appeals for Circuit sig conclusion and “marked a foregone Collins, same conclusion Cordova Ap leap prior precedent.” nificant (5th Cir.1992), where the F.2d pellees’ Supp. Br. at It notes that four by Teag precluded stated that it was court present Supreme justices dispute “ retroactively. applying ue from that Mills ‘controlled or decision my view that un- by Eddings, previously expressed let I governed’ Lockett Teague analysis alone dictated those earlier decisions.” der Carolina, likely would view Mills as announc- citing McKoy v. North rule, 433, 452-56, apply a new and that it would not J., retroactively. Zettlemoyer v. Fulcom- (Kennedy, concur See L.Ed.2d Cir.1991) (3d er, 316-17 n. 3 ring opinion); id. at 923 F.2d J., (Sloviter, I dissenting). Although find between Saffle majority attrac- what evidence the must be the result reached tive, opposed I allowed consider to how agree logi- that Mills followed cases, must consider evidence. I cally regretfully from earlier can- Br. at 6. Appellees’ Supp. join majority’s may view that Mills retroactively to Banks’ case be- applied application Another new cause Mills did not create a new rule for rule/existing rule distinction is found purposes Teague analysis. McKellar, Butler v. (1990). 1212, 108 L.Ed.2d 347 In that My large part by view is informed case, petitioner sought a habeas the bene- Supreme several decisions of the Court Roberson, fit of the in v. holding Arizona which, Teague, after character- analyzing 486 U.S. 100 L.Ed.2d ized the rules at issue in those cases as (1988), police may that the not initiate Parks, new ones. Saffle questioning after the accused invokes his right sepa- to counsel in the context of a Parks, (1990), petitioner, habeas claimed investigation. argued rate Butler that Ro- penalty phase jury that a instruction tell- applied berson should be to his case be- ing jury sym- the influence to avoid cause it did not establish a new rule under pathy violated his Amendment merely but followed the rule estab- jurors rights. argued Parks must be Arizona, lished in Edwards sentencing allowed to base their decision (1981), L.Ed.2d S.Ct. upon sympathy hearing mitigat- after the police where the Court held the must re- ing evidence. frain from questioning further after the In concluding principle that the Parks right accused had invoked his to counsel. advanced a new rule Teag created Butler noted that Court ue, Court held that Lockett in had stated Roberson that the case was Eddings did not dictate such a result. directly by controlled Edwards. Nonethe- Id. at 110 S.Ct. 1257. The Court less, decided, in Court Butler in an explained that in although the decisions approach consistent with that it took in Eddings ability Lockett and limit the aof Saffle, that Roberson announced a new upon state to define the factual bases rule because its result was “dictated” which the capital sentencing decision must by precedent. the Edwards made, they speak do not to whether the 1212. The explained Court may state instruct the to sentencer render that its outcome in Roberson suscepti- sym its decision on the evidence without minds, among ble to debate reasonable as pathy. Id. As the explained, Saffle differing positions evidenced taken “[tjhere simple logical is a difference by judges of other courts. govern between rules that what factors the S.Ct. 1212. jury permitted must be to consider in mak Thereafter, Collins, its sentencing decision and rules that in Graham v. govern how may guide jury the State

in considering weighing those factors again Court once focused on the in reaching a decision.” Id. it meaning Because in Teague statement that a sought by deemed the rule to be a new rule Parks is one that was not “dictated one, new precedent existing Court did not consider the at the time the defen- proposed merits of Parks’ rule. The dant’s final.” Teague, Com conviction became Graham, monwealth relies on the distinction made 109 S.Ct. 1060. Although contended that the Mills can be petitioner, the habeas viewed as estab- give sentencing jury lishing was unable effect an in step incremental the series of age, Furman, evidence of his back beginning cases I believe it the confines ground and character within is not commanded the earlier cases in the special questions of the three issues approached sense that issue sentencing statute at issue same Texas Hence, Saffle, Butler and Graham. I Penry had Penry. Although conclude Mills established a new rule required instructions should within Teague inquiry that does not mental and childhood consider retardation apply retroactively, unless falls within evidence, abuse Graham one of the two exceptions Teague. the Court held that the relief Graham exceptions Those are narrow. The first consider sought, instructions exception, place that for new rules that age, background mitigat and character as “ ‘certain primary, private kinds of individ- a new ing, require would announcement of beyond power ual conduct of the crim- It rule. 113 S.Ct. 892. ” lawmaking authority inal proscribe,’ question stated that “the determinative 396, Caspari, at 114 510 U.S. S.Ct. 948 ju Teague] is whether reasonable [under 307, (quoting Teague, 489 U.S. at 109 S.Ct. reading rists the case law that existed in 1060), plainly applicable. not The man- 1984 could have concluded that Graham’s ner in which the must consider miti- in sentencing constitutionally was not gating evidence does not relate to the say, firm.” it Id. Because could even un- “primary, private, individual conduct” with the benefit of the decision in derlying the at offense issue. jurists Penry, that reasonable would be of if Banks contends that Mills created a claim, ruling one mind on Graham’s rule, new the second that for exception, sought would be a new rule. The Court “ procedure’ ‘watershed rules of criminal Penry it in noted the limited issue before implicating the fundamental fairness and Penry and stated that it did not read “as accuracy proceeding,” of the criminal id. change a sea view effecting [the] Court’s 495, Saffle, at (quoting 494 U.S. 110 S.Ct. constitutionality of the of the former Texas 1257), applies agree. but I cannot The statute; broadly death it does not exception apply only is meant to to a small invalidity suggest special issues requiring core of rules observance of those 474, framework.” Id. at 109 S.Ct. 1060. procedures implicit that are in the concept Thus, rejected Graham’s reliance on Graham, liberty. of ordered 506 U.S. Penry. language used in the Graham (citations omitted). 478, 113 892 S.Ct. opinion reiterates the need to show the gave an example Court as by result was “commanded” the earlier Saffle type falling of rule within the second ex if cases it is not to be viewed as a new rule. ception the rule v. enunciated Gideon 475, 1060; See id. at 109 S.Ct. see also Wainwright, 372 U.S. 9 Singletary, Lambrix 520 U.S. 528 (1963), (1997) L.Ed.2d that a 1517, 137 defendant has n. S.Ct. L.Ed.2d 771 Florida, right represented by to be counsel in (finding Espinosa v. all criminal trials for serious offenses. See L.Ed.2d 854 curiam), Teag 1257. In (per announced a rule new ue, itself, gave as illustrations by not dictated Court precedent where exception the second the classic compel earlier cases did not the outcome for grounds because did not answer the definitive for the issuance of a writ of habe- Court). question corpus proceeding before the was domi- —that violence, prosecutor nated mob not fall Teague excep- within either of the knowingly perjured testimony used or that tions, I Teague apply believe that does not upon conviction was based a confession in special circumstances under which Teague, obtained brutal methods. See Pennsylvania Supreme reviewed Court (citations ini- post-conviction petition. Banks’ I note omitted). tially opinion that in its remanding to this

No Supreme Court case since court, only focused has held the exception applicable. second analyze our failure to the Teague issue and Smith, example, Sawyer For holding did not reach the merits of our 227, 245, Pennsylvania Banks I “that the (1990), the Supreme Court found that the ruling ap- involved an unreasonable rule in Mississippi, Caldwell v. Horn, plication of Mills.” Banks v. (3d Cir.2001). F.3d There would which held that Amendment be no basis therefore to assume that the prohibits imposition of a death sen- rejected holding. light But in tence a sentencer that has been led to my conclusion that Mills established the false that the responsibility belief rule, new it is incumbent on me explain determining appropriateness of the de- why I apply believe we are free to elsewhere, fendant’s sentence rests retroactively to explana- Banks’ case. The satisfy exception. does not The Court tion in Pennsylvania’s unique lies relaxed stated that exception the second would rule in waiver effect at the time of Banks’ apply only that, to a new rule in addition to “ post-conviction state proceedings. trial, improving accuracy ‘alter[s] our understanding of the bedrock proce- Banks’ degree 1983 conviction of first ” dural elements’ essential to the fairness murder and related crimes was affirmed 242, proceeding. of a 497 U.S. at Pennsylvania Supreme Court on (citing Teague, 311, 2822 appeal direct in 1987. Commonwealth v. (citation omitted)). S.Ct. 1060 It further Banks, 318, 1(Pa.), 513 Pa. 521 A.2d cert. “ stated that it ‘unlikely many such denied, 873, components of process yet basic due have (1987). ” L.Ed.2d appeal When Banks to emerge.’ 110 S.Ct. 2822 ed the trial court’s 1993 peti denial of his (quoting Teague, post-conviction tion for relief to the Penn 1060). Court, sylvania Supreme asserted, he Although I believe that the rule in Mills claims, among jury other that the instruc is aimed at improving reliability tions, jury poll slip and verdict violated sentencing, light of the Supreme (decided after Banks’ direct appeal Butler, in Saffle, Court’s decisions was completed) suggesting that I Graham cannot conclude that Mills al- jury’s findings as to mitigating circum understanding ters our pro- the bedrock stances must be unanimous. The Com cedural elements essential to the fairness argued monwealth that all of the issues Therefore, of a proceeding. I reject post-conviction raised in the petition were argument Banks’ that Mills falls within waived because Banks failed to raise them Teague the second exception.

on direct appeal. Pennsylvania The Su II. preme agreed that some of the is Notwithstanding my ap sues could have been raised on direct view Mills cre- ated a new Teague rule under peal does and thus could be deemed waived Act, Supreme Court affirmed the denial of his Relief the Post Conviction (“PCRA”), petition and his for a writ petition §§ 9541-46 but PCRA Pa. Cons.Stat. Appel “address all of of certiorari was denied. that it would stated the trial court ad claims since lant’s large The rule part stems it is claims and since all of those dressed comity desire deci- to accord to address all issues practice this Court’s courts, which, sions of the state in their irrespective ease penalty in a death arising case, oppor- review of the did not have the of waiver.” Commonwealth finding of a analyze the tunity subsequent effect of Banks, n. 7 A.2d 540 Pa. Supreme Court decision. The rationale (1995). it addressed was The first issue comity principle for the has been articulat- instruction, jury claim that the Banks’ forcefully dealing ed in the most cases slip violated the Su poll and verdict the exhaustion doctrine. More than cen- mandate in Mills. preme Court’s tury ago, parte Royall, in Ex Pennsylvania Supreme Court con- (1886), L.Ed. 868 on the merits. the Mills claim sidered wrote that as a matter it did It re- was the first time so. This comity, not federal courts should consider and found that viewed the instruction until corpus petition a claim a habeas it had determined another case opportu- after the state courts have had an instruction, language “which mirrors the nity to act. [the in the death statute of found Congress’ After 1948 codification Code,” Pennsylvania] Sentencing did § exhaustion doctrine 28 U.S.C. similarly It held Mills. Id. at 470. violate Lundy, in Rose v. did not slip the form of the verdict provid- and that the answers violate policies underlying analyzed jurors during poll did not ed statute follows: unanimity was suggest that believed circum- required finding principally doctrine is exhaustion stances. courts’ role designed protect state law and in the enforcement of federal A conviction and sentence become state judicial pro- analysis prevent disruption of state purposes retroactivity final for our ceedings. omitted]. to Under availability appeal [citation of direct when and state system, and federal the federal the state courts has been exhausted and equally guard ‘courts bound to petition [are] time for for a writ of filing the Constitu- timely protect rights filed secured elapsed certiorari has Because ‘it tion.’ finally Caspari, [citation omitted]. has been denied. petition 948; system dual unseemly would be our Kapral (3d States, for a federal district court government 166 F.3d Cir. United 1999). court conviction tvithout appeal upset direct a state Although Banks’ exhausted, to the state courts to opportunity the Penn an technically had been violation,’ feder- a constitutional sylvania Supreme peti treated his correct Court comity, apply the doctrine of appeal like a direct al courts tion for collateral relief de- ‘teaches that one court should claim on the mer which by considering his Mills properly within its fer action on causes Pennsylvania Supreme its. Because the doctrine, jurisdiction until the courts of another the relaxed waiver applied powers, with concurrent and sovereignty final conviction was not within the Banks’ litigation, have already cognizant of Pennsylvania until the meaning of also 119 S.Ct. 1728. See upon the pass an opportunity had 167, 178-79, Walker, Duncan v. [citations omitted]. matter.’ 2120, 150 L.Ed.2d 251 add- (emphasis comity set forth in (recognizing principle of ed). Rose). rec and We also have O’Sullivan Boerckel, recently, in More O’Sullivan rationale. See Werts v. ognized the same (3d Cir.2000), Vaughn, 228 F.3d (1999), where the held denied, 980, 121 S.Ct. cert. his prisoner present that a state must (2001). peti- in a supreme a state court claims to discretionary review in order tion for case, application In this because of requirement, satisfy the exhaustion waiver Pennsylvania’s unique relaxed that the exhaustion doc- explained cases, Pennsylvania doctrine courts a designed give trine is the state only op- had the first Supreme Court not full and fair to resolve federal opportunity review Banks’ instruc- portunity to claims constitutional claims before those tions, slip, jury poll light verdict to the federal courts. It presented are It opportunity. but exercised Rose, stated, citing further appeal that claim as on direct thus treated courts, courts, are like federal State though even why, there is no reason Comity to enforce federal law. obliged rule, Pennsyl- a new Mills announced alleg- a prisoner thus dictates when resolution of that vania Court’s for a es that his continued confinement cognizable not be on federal issue should federal state court conviction violates majority’s review. I adhere to the habeas law, have the the state courts should judgment in our decision filed October this claim opportunity first to review Pennsylvania Supreme relief, any necessary provide [cita- Banks’ claim under ruling denying comity re- tions This rule of omitted]. Therefore, I con- Mills was unreasonable. friction between the state and duces today.3 judgment cur in its systems by avoiding the federal court aof federal district

‘unseemliness]’ convic- overturning

court’s a state court having courts had

tion without state opportunity

an to correct the constitu- instance, [ci-

tional violation the first omitted].

tations case, present not reviewable unique presented 3. The circumstances this claim in the are See, unlikely e.g., case are to recur because the Penn- review. Common- on collateral sylvania strictly Wallace, Court now con- wealth v. 555 Pa. A.2d Relief Act. strues the state's Post Conviction (1999) (finding 921 n. 5 claims of trial court Albrecht, In Commonwealth v. 554 Pa. on direct error that could have been raised Pennsylvania A.2d Su- waived). rejected argu- It has also review preme application Court abandoned its abrogation the relaxed waiv- ment that the relaxed waiver doctrine in cases in apply retroactively er rule should not to PCRA "ever-widening ap- appeals PCRA because the petitions filed before Albrecht was issued. effect, has, plication the doctrine virtual- Bracey, 568 Pa. See Commonwealth ly finality cap- eliminated semblance of (2001) (because 795 A.2d Albrecht cases, ital and frustrated the efficient use practice merely clarified the court's of relax- Albrecht, of the court." Since resources cases, ing waiver rules in death Pennsylvania Supreme Court has ruled error, court like the Mills that claims of trial Roger ATKINSON

Stanley TAYLOR, Commissioner; Ra-

phael Williams, Warden; Perry Major; Bradley Lee,

Phelps, Captain;

Parker, Sgt.; Way, C/O, Fred in his capacity;

individual and official State Department

of Delaware of Correc-

tions; Green, Cpl., Andre in his/her capacity, Ap-

individual and official

pellants

No. 01-3565. of Appeals,

United States Court

Third Circuit.

Jan. application). defendant suffered no constitutional violation its retroactive

Case Details

Case Name: Banks v. Horn

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 14, 2003

Citation: 316 F.3d 228

Docket Number: 99-9005

Court Abbreviation: 3rd Cir.