JAMES H. CARPENTER, v. DONALD T. VAUGHN, Wаrden, State Correctional Institution at Graterford, PA; JAMES HENRY CARPENTER, Appellant
No. 95-9001
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 1, 2002
2002 Decisions. Paper 367
Before: BECKER, Chief Judge, ALITO, and ROTH, Circuit Judges
PRECEDENTIAL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (Dist. Court No. 91-cv-00934). District Court Judge: James F. McClure, Jr. Argued January 19, 2001. Opinion Filed: July 1, 2002.
David Wycoff
Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street, Suite 510
Philadelphia, PA 19106
Attorneys for Appellant
D. Michael Fisher
Attorney General
William H. Ryan, Jr.
Executive Deputy Attorney General
Director, Criminal Law Division
Robert A. Graci
Assistant Executive Deputy Attorney General Law and Appeals
Criminal Law Division
Stuart Suss (Argued)
Senior Deputy Attorney General
Appeals and Legal Services Section
Criminal Law Division
Office of the Attorney General
2490 Boulevard of the Generals
Norristown, Pennsylvania 19403
Attorneys for Appellee
ALITO, Circuit Judge:
James Carpenter appeals the denial of his petition for a writ of habeas corpus. Convicted in Pennsylvania state court of first-degree murder and sentenced to death, Carpenter has pursued a long course of post-conviction litigation in the state and federal courts. In this appeal, he raises numerous arguments, challenging both the guilt and penalty phases of his trial. Some of the claims that he now advances had been fairly presented to the state courts at the time of the District Court decision and are properly before us. Other claims had not been exhausted at the time of the District Court decision, but the Commonwealth has waived exhaustion of those claims, and consequently they too are properly before us. Still other claims were never raised in the District Court but were presented to the state courts after the District Court issued its decision. We decline to entertain those claims here.
We find no merit in the guilt-phase claims that are properly before us for review. However, we reverse the decision of the District Court with respect to Carpenter‘s sentence because wе conclude that his trial counsel provided ineffective assistance at the penalty phase when he failed to object to a highly misleading answer given by the trial judge in response to a jury question about the availability of parole if Carpenter was sentenced to life imprisonment.
I.
The evidence at trial revealed that Jimmie Lee Taylor was stabbed in the heart on South Penn Street in York, Pennsylvania, on the night of September 30, 1983. He was pronounced dead at 10:58 p.m. at York Hospital. The Commonwealth‘s principal witness at trial was Ruth Helen Emmil, who had previously been Taylor‘s girlfriend but had left him to live with Carpenter. Emmil testified that Taylor had previously threatened and harassed her and that Carpenter had spoken to Taylor in an attempt to stop the harassment. In May of 1983, Taylor -- apparently without provocation -- hit Carpenter in the face with a hatchet, breaking his jaw and knocking him unconscious.
At trial, Emmil gave the following account of the events on the night of Taylor‘s death. She and Carpenter had been drinking with another couple in a bar in York. Both couples
When first questioned by the police, Emmil did not reveal what she knew about the stabbing, but she explained at trial that Carpenter had threatened to kill her if she told anyone what had happened. To add credibility to his threat, Emmil said, Carpenter had told her that he had previously killed an ex-girlfriend. The Commonwealth also presented a witness at trial who testified that Carpenter had offered him $500 to kill Taylor.
Carpenter testified in his own defense. He basically agreed with Emmil‘s version of the events leading up to the stabbing, but he claimed that it was Emmil who had stabbed Taylor and had disposed of the knife and handkerchief. He admitted that, after the stabbing, he had asked a friend to purсhase a knife similar to the one used by Emmil because he was sure that the police would suspect him and he hoped to confuse them. Carpenter also admitted his animosity toward Taylor and that he had threatened revenge shortly after Taylor had attacked him with the hatchet, but he claimed that his desire for revenge had subsided with the passage of time. According to Carpenter, it was Emmil, not he, who could not forget about the hatchet incident or Taylor‘s harassment.
The jury believed Emmil‘s version of the events and found Carpenter guilty of first-degree murder on January 20, 1984. Pursuant to
Post-trial motions were filed in and denied by the Court of Common Pleas of York County, and Carpenter was formally sentenced. On direct appeal, the Supreme Court of Pennsylvania affirmed the conviction and sentence of death. Commonwealth v. Carpenter, 515 A.2d 531 (Pa. 1986). Thereafter, Carpenter sought post-conviction relief in both the state and federal courts. In order to decide which claims are properly before us for review, we must trace the complicated procedural history of Carpenter‘s various petitions and appeals.
II.
A.
In 1989, Carpenter filed his first petition for post conviction relief under Pennsylvania‘s Post Conviction Relief Act (“PCRA“),
In July 1991, while his first PCRA petition was pending before the Pennsylvania Supreme Court, Carpenter filed a petition in the United States District Court for the Middle District of Pennsylvania seeking a writ of habeas corpus under
In November 1994, the District Court issued an opinion in the habeas proceeding. Carpenter v. Vaughn, 888 F. Supp. 635 (M.D. Pa. 1994). After identifying 25 claims that had been raised in either the original or the amended federal habeas petition,1 the Court rejected most of those
The District Court permitted Carpenter to provide factual support for three оf his claims2 and ordered supplemental briefing on three others.3 Two of these latter claims -- Claims 5 and 15 -- alleged that trial counsel was ineffective at the penalty phase in connection with an allegedly
The District Court also requested further briefing on the claim that counsel was ineffective for failing to call an eyewitness who allegedly would have corroborated Carpenter‘s version of the events (Claim #16). The Court stated that this claim was not exhausted and that there was no “cause” to еxcuse the failure to present the claim to the state courts. However, the District Court ordered further briefing because the Court believed that a miscarriage of justice might occur if the claim was not considered. See id. at 655.
In May 1995, after considering the additional briefing, the District Court denied all of the claims that had been left
Carpenter filed a notice of appeal to our Court after the District Court granted a certificate of probable cause for appeal. Shortly thereafter, Carpenter filed a motion to hold the appeal in abeyance so that he could file a second PCRA рetition. We granted that motion.
Carpenter returned to the state courts and filed a second PCRA petition in January 1996. This petition included claims that Carpenter had raised in the District Court, as well as others that he had not. The Court of Common Pleas denied the petition, and the Pennsylvania Supreme Court affirmed in January 1999. Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999). Carpenter then filed a motion with this Court seeking a remand so that the District Court could decide whether to permit him to amend his S 2254 petition to add the claims that had been rejected by the state courts in the second PCRA proceeding but that had not yet been presented to the District Court. We denied the motion for remand.
Now on appeal before us, Carpenter asserts claims that come to us in three different procedural postures: (1) claims that were asserted in the original or amended S 2254 petition and that already were properly exhausted when the S 2254 petition was before the District Court; (2) claims that were asserted in the original or amended S 2254 petition, that were unexhausted when presented to the District Court, but that were later raised in the state courts in Carpenter‘s second PCRA petition; and (3) claims that were never presented to the District Court but were raised in the second PCRA petition. At oral argument and in a supplemental brief, the Commonwealth exрressly waived the exhaustion requirement for the second category of
B.
1. Under the version of the federal habeas statute in effect when Carpenter‘s original and amended habeas petitions were filed, a federal court was prohibited from granting a writ of habeas corpus to a state prisoner unless (1) the petitioner had exhausted the remedies available in the state courts, (2) no state corrective process was available, or (3) circumstances existed that rendered such process “ineffective to protect the petitioner‘s rights.” See
Congress amended the habeas statute when it passed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), 110 Stat. 1214, Pub. L. No. 104-132, and the amendments went into effect on April 24, 1996. AEDPA made important changes in the standards to be applied in determining whether to grant the writ, see
In order for a claim to be exhausted, it must be “fairly presented” to the state courts “by invoking one complete round of the State‘s established appellate review process.” O‘Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). If a claim has not been fairly presented to the state courts and it is still possible for the claim to be raised in the state
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, see Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998),
C.
When the District Court dismissed Carpenter‘s S 2254 petition, most of the claims contained in that petition had been exhausted because they had been presented to the Pennsylvania Supreme Court either on direct appeal or in Carpenter‘s first PCRA petition. Some of Carpenter‘s claims, however, had not been presented to the state courts. The District Court treated these claims as procedurally defaulted and proceeded to apply the “cause and prejudice” and “miscarriage of justice” standards to these claims. This was error.
Although Carpenter had already filed one PCRA petition by the time he filed his federal petition, Carpenter‘s ability to assert the new claims in state court was not clearly foreclosed. In Banks v. Horn, 126 F.3d 206 (3d Cir. 1997), the petitioner, like Carpenter, had been sentenced to the death penalty and had already gone through one round of PCRA proceedings when he filed a S 2254 petition containing both exhausted and unexhausted claims. We first acknowledged that the provisions of the PCRA provide that relief is precluded if a prisoner‘s claim has been previously litigated or waived through failure to raise the issue at trial, on appeal, or in a prior state post-conviction proceeding. See id. at 211 (citing
Although Carpenter filed his S 2254 petition before we decided Banks, the survey of the legal landscape in Banks is equally applicable to Carpenter‘s petition because the Pennsylvania Supreme Court did not end its practice of relaxing waiver rules in death penalty cases until 1998. See Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998) (“While it has been our ‘practice’ to decline to apply ordinary waiver principles in capital cases, we will not longer do so in PCRA appeals.“). Therefore, the claims in Carpenter‘s S 2254 petition that had nоt yet been raised in the state courts at the time of the District Court decision were not exhausted, and it was a mistake for the District Court to treat these claims as procedurally defaulted. Instead, it should have dismissed Carpenter‘s “mixed” petition without prejudice.
D.
Subsequent developments, however, permit us to entertain those claims in this appeal. Although some of the
The first consists of those claims that had been properly presented to the state courts at the time of the District Court decision. Based on our review of the record, these claims are: (1) that trial counsel was ineffective in failing to object at the guilt phase to testimony implying that Carpenter had a prior criminal record [DC 1; Carp.X; A.III];7 (2) that trial counsel was ineffective because he did not adequately prepare Carpenter for his trial testimony and did not question Carpenter adequately when he testified [DC 7, 8; Carp.XI; A.II]; (3) that the jury was improperly precluded from giving exculpatory and mitigating effеct to Carpenter‘s drug and alcohol use [DC 11; Carp. XII; A.IV]; (4) that the notes of testimony from the trial and capital sentencing proceedings are not full and accurate and thereby deprived Carpenter of meaningful appellate review [DC 25; Carp.XVI]; (5) that the penalty-phase instructions unconstitutionally suggested that the jury had to be unanimous about any mitigating circumstance before it could be given effect in the sentencing decision8 [DC 12; Carp.II; C.VIII]; (6) that the sentencing jury was prevented from considering and giving effect to relevant mitigating evidence when the trial court gave an incorrect charge on duress [DC 4, 14; Carp.VI]; and (7) that Carpenter was denied the effective assistance of counsel when his attorney failed to object on state-law grounds to an allegedly
The second category of claims consists of those that were contained in the original or amended habeas petition but that had not been properly presented to the state courts at the time of the District Court decision. These claims are: (1) that trial counsel was ineffective in failing to call an eyewitness who would have provided exculpatory evidence9 [DC 16; Carp.VII; B.I; C.XI]; (2) that the Eighth and Fourteenth Amendments were violated because the trial court provided the jury with inaccurate sentencing information about parole and counsel made no effort to correct the trial court‘s error10 [DC 5, 15; Carp.III; A.VI; B.III;C.XII]; and (3) that trial counsel was ineffective in failing to investigate, develop, and present significant mitigating evidence11 [DC 3, 24; Carp.I; A.V, B.II, C.XIII].
In this appeal, Carpenter also advances claims that he never presented to the District Court but that he did present (unsuccessfully) to the state courts in his second PCRA petition. Since the District Court had no opportunity to review these claims, the District Court did not err in failing to render any decision concerning them. As a result, we have no basis for reversing the decision of the District Court with respect to these claims. The claims that are not properly before us are: (1) that trial counsel was ineffective in failing adequately to counter the prosecution‘s evidence of an aggravating circumstance [Carp.I]; (2) that trial counsel was ineffective because he made an inadequate and harmful closing argument [Carp.I; C.VII]; (3) that the sole aggravating circumstance found is unconstitutional
III.
We turn to the merits of Carpenter‘s guilt-phase claims that are properly before us for review.12 We will discuss these claims seriatim, but since most of them involve allegations of the ineffectiveness of trial counsel, we will first discuss the test for ineffective assistance claims.
In order for a defendant to gain relief based on a constitutional claim that his counsel was ineffective, the defendant must satisfy the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show “(1) that counsel‘s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different.” United States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989) (citing Strickland, 466 U.S. at 687-96). Both Strickland prongs must be met in order to merit relief. Nino, 878 F.2d at 104.
With regard to the first prong, the Supreme Court has instructed that “[t]he рroper measure of attorney performance” is “reasonableness under prevailing
Under the pre-AEDPA version of
Where, as in this case, the District Court has not held an evidentiary hearing or engaged in independent fact finding and the evidence is limited to that contained in the state court record, our review of the District Court‘s decision is plenary. See Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir. 1989); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993). With these standards in mind, we now consider Carpenter‘s claims.
A.
Carpenter argues that his trial counsel was ineffective because he did not immediately object to testimony that implied that Carpenter had a prior criminal record. The prosecution called as a witness Carpenter‘s parole officer Donald M. Jefferies, who testified about a conversation he had with Carpenter after Taylor attacked him with a
Trial counsel did not immediately object to Jefferies’ testimony, but instead objected three witnesses later. Counsel explained that he did not hear the testimony because Carpenter was talking to him at the time and that he objected when someone brought the statements in question to his attention. Although the trial judge believed that Jefferies‘s statements might have been somewhat prejudicial, the judge did not think that the prejudice was severe enough to justify a mistrial. The judge offered to give a curative instruction, but Carpenter‘s attorney declined because he thought that the instruction would do more harm than good. In this appeal, Carpenter argues that his trial counsel was ineffective, not because he refused a curative instruction, but because of his initial failure to object.
On direct appeal, Carpenter contended that the disclosure of Jeffries‘s occupation and his acquaintance with Carpenter tainted the trial, but the Pennsylvania Supreme Court rejected that argument, concluding that this information resulted in “little, if any, prejudice” since there “there are an infinite variety of ways that [Carpenter] might otherwise know a person who was a parole officer.” Commonwealth v. Carpenter, 515 A.2d at 535. In his first PCRA petition, Carpenter returned to this ground, contending that his trial attorney had rendered ineffective assistance by failing to object to the testimony in question, but the Pennsylvania Supreme Court again disagreed. The Court reasoned that the ineffective assistance claim necessarily failed in view of its holding on direct appeal that Carpenter had not been prejudiced by Jefferies‘s
We see no merit in this claim. First, we do not think that Carpenter has established that counsel‘s handling of this matter fell below the minimally acceptable constitutional standard. No evidence has been called to our attention that contradicts counsel‘s testimony that Carpenter was talking to him and distracted him when the testimony in question came in, and the record clearly shows that counsel subsequently addressed the issue by making an objection and moving for a mistrial. While it is obviously important for a trial attorney to maintain concentration on the testimony of adverse witnesses, we cannot say that counsel‘s momentary distraction, under the circumstances, was enough to render his performance constitutionally deficient. Moreover, we agree with the Pennsylvania Supreme Court and the District Court that the prejudice prong of Strickland is not met. Jeffries‘s comments do not “undermine confidence in the outcome” of the trial. Strickland, 466 U.S. at 694.
B.
Carpenter next contends that trial counsel was ineffective in (a) preparing Carpenter to testify and (b) questioning him when he took the stand. When Carpenter testified, he did so largely in a narrative fashion, and he made some damaging statements. He admitted that he had a desire to
In an evidentiary hearing in the first PCRA proceeding, Carpenter and his attorney testified about their pre-trial preparation. According to Carpenter, his attorney spent
The PCRA court and the state supreme court plainly credited the testimony of Carpenter‘s attorney. The state courts noted that Carpenter “was very familiar with the criminal justice system and there was extensive preparation of [Carpenter] for this trial.” Commonwealth v. Carpenter, 617 A.2d at 1270. The state supreme court added: “Under such circumstances, we agree that counsel cannot be blamed for [Carpenter‘s] voluntary decision to expand his prepared testimony and make damaging remarks.” Id.
Carpenter contends that these findings are not adequately supported by the record. Carpenter argues that, although his attorney testified that he met with him at length, “there is no evidence that trial counsel spent any time preparing Mr. Carpenter to testify.” Appellant‘s Br. at 165. Carpenter also maintains that “there is no evidence to support the state court‘s claim that Mr. Carpenter‘s damaging statements resulted from a decision to ‘expand his prepared testimony.‘” Id.
We believe that the findings of the state courts are adequately supported by the testimony of Carpenter‘s attorney. As noted, Carpenter‘s trial attorney testified that he and Carpenter had “quite lengthy discussions about his testimony.” Tr. of PCRA Proceeding 7/20/89 at 51. See also id. at 52. While it does not appear that counsel stаted directly that the damaging statements about which Carpenter now complains were not included in the
We also note that some of the damaging testimony now cited by Carpenter would very likely have come out on cross-examination even if Carpenter‘s testimony had been presented in closely controlled question-and-answer form. For example, a cross-examiner would very likely have elicited that Carpenter wanted to strike back at Taylor after Taylor hit him with a hatchet and that Carpenter had lied to the police. While Emmil‘s out-of-court statement that she had taken a polygraph would not have been admissible, there is nothing in the record to suggest that Carpenter‘s attorney had any advance warning that Carpenter would recount that statement.
In view of the testimony of Carpenter‘s attorney, which the state courts reasonably credited, we reject Carpenter‘s claim that his attorney fell below the minimum constitutional standard in preparing him to testify and in conducting the direct examination.
C.
Carpenter contends that the trial court erred in failing to give an instruction on intoxication at the guilt or penalty stage and that the trial counsel was ineffective for failing to attempt to argue intoxication. The Pennsylvania Supreme Court rejected these arguments in the first PCRA petition, finding that there was no evidence at trial that Carpenter was drunk or unaware of what he was doing. See Commonwealth v. Carpenter, 617 A.2d at 1268. Since there was no evidence to support a request for an instruction on intoxication, the Court reasoned, Carpenter‘s counsel was not ineffective in failing to ask for the charge or argue the issue to the jury. The District Court rejected this claim on similar grounds. See Carpenter v. Vaughn, 888 F. Supp. at 653.
Carpenter argues that the evidence at trial raised the possibility that he was intoxicated at the time of the stabbing. Thus, he argues, his attorney should have requested, and the court should have given, an intoxication instruction, which might have persuaded the jury that he
Under
In Commonwealth v. Reiff, supra, the evidence at trial showed that the defendant had consumed two-and-one-half quarts of beer and smoked marijuana the night of a murder. The Supreme Court of Pennsylvania affirmed the trial court‘s refusal to give an intoxication instruction:
Drinking and intoxication are not synonymous terms; therefore a jury instruction on intoxication is not warranted because evidence of drinking is introduced at trial. It is the intention of the legislature that a defendant be overwhelmed or overpowered by alcoholic liquor to the point of losing his or her faculties or sensibilities before an intoxication instruction be given.
In the instant case, there was no evidence that appellant was intoxicated or had lost his faculties or sensibilities. In Commonwealth v. Kichline, 468 Pa. 265 (1975), this Court stated that there must be sufficient evidence of intoxication in the record to bring that
issue into the case before the trial court is required to instruct the jury on an intoxication defense. As there was insufficient evidence of intoxication in the record, the trial court did not err in refusing to instruct the jury on an intoxication defense.
In the present case, Emmil testified that she and Carpenter had smoked marijuana on the evening of the killing. She also testified that they had drunk together for about an hour. Trial Tr., 1/18/84 at 22-24. Likewise, Carpenter and others testified that he had drunk several beers and smoked some marijuana on the night in question. The Pennsylvania Supreme Court held, however, that this evidence was insufficient to justify an intoxication instruction. We cannot review this decision on a question of state law, and this holding dooms Carpenter‘s ineffective assistance claim, since his attorney cannot have been ineffective for failing to request an instruction that was unavailable.
Moreover, at the PCRA evidentiary hearing, trial counsel provided a perfectly reasonable tactical explanation for his decision not to attempt to mount an intoxication defense. After observing that he did not think the defense was “available,” counsel added:
And I certainly wouldn‘t stand up to the jury and argue it, given Mr. Carpenter‘s stоry, the testimony he gave as to his version of events.
PCRA Hearing, 7/20/89, at 54. This was a reasonable tactical decision.
D.
Carpenter argues that he was denied the effective assistance of counsel because his trial attorney failed to call an eyewitness named Frankie Stewart who could have helped his case either by corroborating his testimony to some degree or by providing an entirely different defense theory. Before trial, Stewart provided three accounts of the Taylor homicide. AB at 140-43; Carpenter v. Vaughn, 888 F. Supp. at 662-64. Stewart‘s first version, as recounted in a police report, was as follows:
[Stewart] was at 49 S. Penn St. and was leaving. She saw the victim walking with a [Caucasian] male and a [Caucasian] female. She saw the female turn to the victim and make a motion. The victim then fell to the position in which he was lying upon the arrival of the officers. The suspects then walked south on the sidewalk to King St. and turned west on King. A few seconds thereafter, the officers arrived.
Stewart‘s second account was also set out in a police report:
FRANKIE STEWART . . . was leaving her parents’ home located directly across from 50 S. Penn St. when she observed the victim fall over backwards to the sidewalk and observed two persons walking away from the victim. Frankie Stewart stated that she had . . . seen the two actors in the arеa before and that she could i.d. the two actors if she saw them again. She stated that she knew the one actor as BOB--that he‘s always down at PAUL BROWN‘S place on W. Princess St.
Stewart‘s third version was recounted in a verbatim statement taken during police questioning:
Q Will you tell me what you heard or observed?
A I was coming out of my parents’ home at 49 S. Penn St. I was going toward my car. I looked across the street and I seen a man on the ground. Two white people walked around the corner. During this time a police officer was coming down the street. I hailed him down. That‘s it.
. . . .
Q At any time did you see these 2 white persons near where Jimmy had fallen?
A No.
Q Do you know a HELEN RUTH EMEL [sic]?
A Yes.
Q Do you know a JAMES CARPENTER?
A Yes, I do but I didn‘t know that was his last name till I saw it in the paper.
. . . .
Q Did you see those people in the area?
A Nope.
In a recent affidavit, Stewart stated, “I was at my mom‘s house and I had been drinking a lot. I was just starting to leave my mom‘s house and I saw Jimmy Lee [Taylor] fall. James Carpenter was not in the immediate area when Jimmy Lee [Taylor] was stabbed.” Appellant‘s Br. at 143 n.89.
Carpenter argues that Stewart‘s statement that a white woman turned toward Taylor and made “a motion” just before he fell would have corroborated his testimony that Emmil stabbed Taylor since Emmil is white. But by the same token, any of the three accounts provided by Stewart before trial would have contradicted Carpenter‘s testimony in important respects. Carpenter, an African American, claimed that Emmil had killed Taylor, аnd both he and Emmil agreed that they were the only other persons present at the time. Therefore, testimony from Stewart either 1) that two Caucasians were present when Taylor was stabbed, 2) that “BOB” had killed Taylor,13 or 3) that Carpenter was not in the area when Taylor was killed, would have been fundamentally inconsistent with Carpenter‘s account. Moreover, Stewart‘s admission that she “had been drinking a lot” probably would have undermined the value of her testimony. Under these circumstances, it was objectively reasonable for Carpenter‘s counsel not to call Stewart as a
We also see no merit in Carpenter‘s alternative suggestion that counsel was ineffective in failing to present a defense in which Stewart would testify and Carpenter would either not testify at all or testify differently. We have found no indication that this argument was made in the state courts or the District Court. But in any event, in view of the inconsistencies in Stewart‘s accounts and the testimony of Carpenter‘s attorney that Carpenter was insistent on telling his story (and Carpenter‘s briefs do not point to any contradictory evidence), the decision not to pursue the alternative approach now suggested did nоt violate Carpenter‘s constitutional right to the effective assistance of counsel.
E.
Carpenter argues that the trial transcripts are inaccurate and that this prevented him from obtaining meaningful appellate review. However, the Pennsylvania Supreme Court noted that “[t]he PCRA court . . . found as a fact that the trial transcript had not been altered by anyone to [Carpenter‘s] detriment.” Commonwealth v. Carpenter, 725 A.2d at 169. See also Commonwealth v. Carpenter, No. 2014, at 34-35 (Pa. Ct. Comm. Pl. 7/31/90) (App. Vol. I, at 103-04) (“The defendant is obsessed with the idea that [there was a conspiracy to alter the transcript] . . . . However, this was categorically denied by the defendant‘s trial counsel . . . . There is positively no evidence to support the defendant‘s claim.“). The District Court gave Carpenter an opportunity to proffer factual support for this claim, but Carpenter did not submit any. Carpenter v. Vaughn, 888 F. Supp. at 668. Even now on appeal, Carpenter provides no support for this claim. He asks for an evidentiary hearing, but he fails to specify what in the record is inaccurate or to state what would be presented at an evidentiary hearing.
We find this claim to be without merit. In Tedford v. Hepting, 990 F.2d 745 (3d Cir. 1993), we explained:
Analysis properly begins with the observation that plaintiff does not have a constitutional right to a totally
accurate transcript of his criminal trial. His constitutional rights would be violated only if inaccuracies in the transcript adversely affected the outcome оf the criminal proceeding. And, since the jury which convicted plaintiff and sentenced him to death acted on the basis of the evidence they saw and heard, rather than on the basis of the written transcript of the trial--which was, of course, non-existent until after the trial was completed--this means that a constitutional violation would occur only if the inaccuracies in the transcript adversely affected appellate review in the state courts. The threshold question, therefore, is . . . whether plaintiff has alleged deficiencies in the trial transcript substantial enough to call into question the validity of the appellate process in the state courts.
Here, Carpenter clearly has not “alleged deficiencies in the trial transcript substantial enough to call into question the validity of the appellate process in the state courts.” Id. Nor has he alleged that any specific issue for appellate review was hampered by inaccuracies in the trial transcript. See id. The state courts’ finding of fact that the trial transcripts are accurate has a more than adequate basis in the record. Thus, this claim is without merit.14
The remainder of Carpenter‘s guilt-phase claims were raised in the federal courts for the first time in his appellate brief to us. Accоrdingly, these claims are not part of the S 2254 petition that he filed in the District Court and are not properly before us for review.
IV.
We now turn to the penalty phase of Carpenter‘s trial. Although several arguments relating to the performance of
Under Pennsylvania law, a defendant convicted of first-degree murder had to be sentenced to death or life imprisonment,
After a period of deliberation, the jury sent out a note inquiring: “Can we recommend life imprisonment with a guarantee of no parole.” The judge responded as follows:
The answer is that simply, no absolutely not. Moreover, ladies and gentlemen, you talk about recommendation. I don‘t know exactly what you mean, but I assume you remember what I told you before, that you as a jury at this point are not making a recommendation of death or life imprisonment. I hope you understand that.
You folks are actually fixing the sentence, and not
the Court. It is not the recommendation. Whether you mark on there death, that‘s the sentence and there is nothing this Court can do about it. The Court has nothing to do on it. If you mark life imprisonment, there is nothing this Court can do about it or wants to do about it, because that decision is entirely up to you as members of the jury. So, I hope you understand that it is not a recommendation, it is a sentence that will bind all of us here to whatever you fix and it‘s going to have to be very simply death or life imprisonment. And the question of parole is absolutely irrelevant. I hope you understand that.
Trial counsel did not object to this answer or request clarification or amplification. After less than nine minutes of additional deliberation, the jury returned a verdict of death.
In the appeal from the denial of Carpenter‘s first PCRA application, Carpenter contended that his attorney was ineffective in failing to object to the judge‘s answer to the jury. The Pennsylvania Supreme Court responded to this argument as follows:
As can be seen, the trial court was concerned that the jury may have misunderstood that they were setting the sentence and not making a recommendation. We think he adequately explained that the jury sets the sentence and whatever it may be will be carried out without interference from any other source. To underscore this, he repeated that the court would not tamper with their verdict and that the question of parole is irrelevant. Read in context, we find nothing improper with this explanation and reject Appellant‘s tortured reading of three words.
Commonwealth v. Carpenter, 617 A.2d at 1269.
Commenting on this analysis, the District Court stated:
The problem with this reading of the jury‘s question is that its obvious import is overlooked. The jury did not just ask whether it was recommending a sentence; it asked whether it could recommend a particular sentence, one of life imprisonment without parole. The
rather obvious concern reflected in such a question is not a recommendation, but whether petitioner would be paroled if a death sentence was not returned. Unlike the Suрreme Court of Pennsylvania, we do not find this interpretation of the jury‘s question and the trial court‘s response to be a “tortured reading” of the question and answer, nor do we see this reading as petitioner‘s overzealous attempt to “manufacture an error.”
Carpenter v. Vaughn, 888 F.Supp. at 645-50.
We must agree with the District Court in this regard.16 While it was prudent for the trial judge, in answering the jury‘s question, to emphasize that its verdict was not merely a recommendation, it is apparent that the jury‘s concern centered on the availability of a sentence of life imprisonment without parole. And the judge‘s initial response -- “The answer is that simply, no absolutely not” -- clearly conveyed the misleading impression that such a sentence was not available. In a case in which it had been proven that the defendant was a homicidal recidivist who had previously been paroled and in which it was apparent that the jury was concerned about the possibility of future parole, this was a potentially devastating message, and there are strong grounds for believing that it had a devastating effect in this case. It was also, as noted, a plain misstatement of Pennsylvania law, under which a person serving a life sentence that has not been commuted to a term of years may not to be paroled. See Commonwealth v. Clark, 710 A.2d 31, 35 (Pa. 1998).
Suggest that common sense makes it more likely that the judge was talking about thе latter. This supposition is strengthened by the fact that the second sentence begins with the word “moreover,” and then proceeds to explain that the jury is not “recommending” anything. “Moreover” implies that the Court was moving on to a new topic and if the “recommendation” issue was a new topic, then the first sentence was about the “life with no parole” point. The court did conclude its answer by stating that “the question of parole is absolutely irrelevant,” but that does not do anything to undercut the belief that it is possible.
On receiving the jury‘s question, the trial judge appears to have focused on the jury‘s use of the word “recommend” and to have overlooked the issue of parole. This was a situation in which assistance from counsel might very well have corrected the problem. The trial judge knew that Carpenter could not be paroled while serving a life sentence. If Carpenter‘s attorney had told the judge that his answer inadvertently conveyed the contrary impression and thus misstated Pennsylvania law on a point that could play a critical role in the jury‘s decision, we have little doubt that the judge would have corrected his answer. But counsel did not object. The failure to object under these circumstances fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel‘s error, the jury would not have returned a verdict of death. See Strickland, 466 U.S. at 687-96. We recognize that the trial judge ended his answer to the jury by stating that “the question of parole is absolutely irrelevant,” but as a practical matter, this brief and weak statement was not likely to erase the highly prejudicial impact of the false impression that Carpenter might be paroled if he was not executed.
The comments made by the Pennsylvania Supreme Court in Carpenter‘s first PCRA appeal do not convince us either that counsel‘s failure to object was objectively reasonable or that an objection would not have assisted his client. As previously noted, in response to the argument that the trial judge‘s answer misled the jury to believe that parole would be available if Carpenter was sentenced to life imprisonment, the Pennsylvania Supreme Court stated that Carpenter was relying on “a tortured reading of three words” (i.e., “no absolutely not“) and that “[r]ead in context” there was “nothing improper with [the judge‘s] explanation.” 617 A.2d 1269. The Pennsylvania Supreme Court also stated that Carpenter‘s argument took “a phrase out of context and read into it his own meaning.” Id.
We recognize that it can be argued that the state supreme court‘s remarks in effect approved the response that the trial judge gave to the jury -- i.e., held that the response was not erroneous as a matter of state law-- but we reject this reading because it squarely conflicts with the
Instead, we believe that the state supreme court was addressing the argument that was presented to it-- that Carpenter‘s attorney was constitutionally ineffective in failing to object to the judge‘s answer -- and that the state supreme court‘s comments were meant to say one or both of the following: (a) that counsel‘s performance was not objectively unreasonable because the “three words” at issue were unimportant when read in “context” or (b) that Carpenter was not prejudiced by those “three words,” again, because they were unimportant when read in “context.” Commonwealth v. Carpenter, 617 A.2d at 1269.
In this pre-AEDPA case, we must conduct a de novo review of the application of both prongs of the Strickland standard, and for the reasons already explained, we must respectfully disagree with the Pennsylvania Supreme Court‘s evaluation of the significance of the “three words” in question. Unlike the state supreme court, we think that, particularly when read in the context of the evidence presented to the jury and the evident concern that prompted the jury‘s question, those words carried a great potential for harm. We also think that counsel made a very serious mistake in failing to realize the danger presented by the trial judge‘s answer and in failing to point out the problem to the judge. The jury‘s question should have put counsel on alert, and the first words out of the judge‘s mouth in response should have triggered deafening alarm bells in counsel‘s head.
We thus hold that the failure of trial counsel to object based on state law17 to the judge‘s answer to the jury‘s
In light of this holding, we see no need to reach any of the other contentions that are properly before us and that
V.
For the reasons explained above, we affirm the decision of the District Court in part and reverse in part and remand for the sole purpose of granting a writ of habeas corpus unless, within a time to be set by the District Court, a new penalty phase trial is held or the petitioner is resentenced to a term of life imprisonment.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit