Hackett v. Price

281 dismissing plaintiffs’ County; motion under Attorney The District 59(e) Philadelphia County; Rules and 15. Lorenz v. CSX Fisher, Michael Cf. (3d Cir.1993) 1406, Attorney Corp., 1 F.3d Pennsylvania, General Ap- (finding pellants. that district court did not abuse light plaintiffs its discretion in “unrea- No. 01-9008. delay” futility sonable proposed United States Court Appeals, amendments).13

Third Circuit. 8, Argued July 2002. Ill 26, Aug. Filed reasons, For the foregoing we will af- firm the District Court’s dismissal of the

plaintiffs’ relating claims oversup- to retail

ply and we will reverse dismissal of relating

those claims to the gray market

and remand for proceedings further con-

sistent with opinion. this

Richard HACKETT PRICE, Superintendent

James of SCI

Greene; Attorney the District of Phil-

adelphia County; Attorney Gener-

al of the State of James Price, Superintendent

S. of the State Institution,

Correctional Greene Co., 815, (11th applicable Plaintiffs contend that the stan- Chicken 198 F.3d Cir. futility dard of review of de 1999))); determinations is Inge v. Corp., Rock Fin. 281 F.3d novo, relying upon Burlington our decision in (6th Cir.2002) ("When ... the dis Factory, Coat adopting 114 F.3d at as trict court denies the motion to amend on employed by the standard several of our sister futile, grounds that the would be amendment appeals, courts of but we do need read Bur- novo.”); we review denial of the de motion lington having done so. See Freeman v. Comito, United States ex rel. Gaudineer & Nat’l, (11th Union First 329 F.3d Iowa, (8th L.L.P. v. 269 F.3d Cir. Cir.2003) ("[W]hen the district court denies 2001); Computervision Corp., Glassman v. plaintiff futility, leave to amend due to (1st Cir.1996). Accordingly, F.3d review the denial de novo because it is con- plaintiffs' we decline the invitation chart a cluding that as a matter of law an amended new course and consider the District Court’s ” complaint necessarily (quoting 'would fail.' futility for abuse of discretion. Foods, St. Charles Inc. v. America's Favorite

David Curtis Glebe (Argued), Assistant District Attorney, Thomas Dolgenos, W. Chief, Federal Litigation, Ronald Eisen- berg, Deputy Attorney, District Law Divi- sion, Gordon, Arnold H. First Assistant District Attorney, Lynne Abraham, Dis- Attorney, trict Office District Attorney, PA, Philadelphia, for Appellants. Gelman, Norris E. (Argued), Philadel- PA, phia, for Appellee. BECKER,

Before Judge,* Chief GREENBERG, AMBRO and Circuit Judges.

AMBRO, Judge. Circuit Richard Hackett was by convicted Pennsylvania jury of murder in the first degree and to death. sentenced His direct appeals post-conviction claims in state court were unsuccessful. Hackett then filed in federal court petition for a writ of corpus, habeas which the District Court granted determining after there is a rea- jury sonable likelihood interpreted trial court’s verdict form préclude it from considering mitigating evidence in violation of the Eighth Amend- ment. The Commonwealth appealed, has and we reverse. The found unani- mously that mitigating circumstance ex- ists. Because of finding, we conclude to, that Hackett fails show a reasonable jurors, likelihood that individually collectively, applied challenged instruc- tion and verdict in a way pre- form * Judge completed Becker Judge his term May as Chief Gray, (1993); v. Commonwealth A.2d 1176 constitutionally consideration

vented (1992). 608 A.2d Pa.Super. relevant evidence.1 Pennsylvania requires law History Procedural & I. Facts to consider retires [b]efore Court, recite the District As did in- verdict, court shall sentencing as set forth this case facts of briefly the ... the verdict [that] struct See Supreme Court. if the of death a sentence must be Price, F.Supp.2d v. Hackett aggrava- at least one unanimously finds (Hackett) (E.D.Pa.2001) (citing Common- ... and no ting circumstance Hackett, A.2d Pa. wealth if the friend, (Pa.1993)). and a Hackett 719 circum- aggravating more one or finds Gregory to kill conspired Spence, Marvin any mitigating outweigh stances house, Ogrod’s lived Hackett Ogrod. be a must The verdict had become situation though living their in all oth- imprisonment of life Ogrod partners were Spence hostile. cases. er but busi- illegal drugs, their of in the sale 9711(c)(1)(iv). At §Ann. Pa. 42 Cons.Stat. Spence after relationship deteriorated ness hearing the Com sentencing capital him to given had Ogrod money that stole cir argued two monwealth 31, July resale. On drugs for purchase to an conspired pay Hackett cumstances: a.m., men armed with three 1986, at 3:30 victim, and he kill the to person other the base- entered and a crowbar knives during the another grave risk to created home, he and his where Ogrod’s of ment v. the victim. Commonwealth murder Dunne, sleeping. were Maureen girlfriend, 42 Pa. Hackett, (citing A.2d at 723 627 cou- struck the repeatedly The assailants (7)). 9711(d)(2), §§ Hack Ann. Cons.Stat. heart, Dunne, through the stabbed ple. countervailing evidence miti ett offered resist, and managed to Ogrod killed. was history including a gating Testimony at es- fled. trial the attackers circumstances-— disabilities, a low learning and social Hackett, assailants tablished depression and maturity, signs of level of Keith Barrеtt. Gray, and Spence, James re interpersonal problems, limited suicidal Haskett, sources, See and alcohol abuse. in the murder charged with Hackett 20; also 42 Pa. 407 n. see F.Suppüd at 212 conspiracy, posses- degree, criminal first 9711(e)(1)-(8) (listing §§ Ann. Cons.Stat. crime, and aggravat- instruments sion circumstances). statutory mitigating jointly he was tried In 1988 ed assault. death, Hackett jury sentenced in the Gray, and Barrett Spence, circum- both of Philadelphia finding Pleas of of Common Court by the Commonwealth argued convict- stances were County. All four defendants also Spence Id.; mitigating circumstance. also no degree murder. see of first ed death, his 233, sentenced Pa. 627 was 534 Spence, v. Commonwealth reaching that without v. Banks Beard delayed issuing because decided this decision 1. We -— U.S.-, 02-1603, in a at- accepted certiorari Supreme question. No. Court possibility 494, 2504, raised 2, from our Court that case 2004 L.Ed.2d n. 159 See addressing question before us. 24, 2004) (de (June *4 n. WL (order Banks, (2003) U.S. 987 v. Beard Ap the Court of clining to address "whether Horn, F.3d Banks v. granting certiorari concluding Penn- peals also erred in however, Court, (3d Cir.)). finding aggravating case allegations Hackett’s of Mills error enti outweighed any tled him to relief. The District Court Gray stance.2 and Barrett were sentenced that the state “determine[d] court’s failure imprisonment.3 to life apply legal standard Boyde from v. California, 494 U.S. appeal, On direct Su- (1990), 108 L.Ed.2d 316 in adjudicating preme Court affirmed Hackett’s conviction [Hackett’s] Mills claim contrary Hackett, and sentence. Commonwealth clearly established federal law as deter rejected, A.2d 721. The Court inter alia, by Supreme mined Court of argument his “that the trial court United States.” Id. at charge erred in its 400. The District jury during “further penalty phase by failing on plenary conclude[d] to instruct review jury they need not be unanimous in instructions and verdict form cre ated a circumstances in accord with reasonable likelihood Maryland, Mills v. 108 S.Ct. understood the instructions in way such a (1988).” 100 L.Ed.2d 384 Id. at 725. that it improperly prevented from con sidering mitigating evidence.” Id. Hack- Hackett next petition filed a for relief ett’s sentence was vacated without рreju Pennsylvania’s Post Conviction Re dice to the Commonwealth to sentence him Act, lief 42 Pa. § Cons.Stat. Ann. 9541 et imprisonment life or to conduct such seq. Court of Common Pleas denied further proceedings may as petition appropriate Hackett’s for relief and the Penn sylvania Supreme Pennsylvania law, Court affirmed. including Com a new Hackett, 78, monwealth v. sentencing 558 Pa. hearing, 735 A.2d within days. 180 (1999). Supreme United States at 413.. The Commonwealth appealed, and Court denied certiorari. Hackett v. Penn the District ruling Court’s on Hackett’s sylvania, 528 U.S. 120 S.Ct. Mills claim is the sole issue before us. We (2000). 145 L.Ed.2d 1086 jurisdiction pursuant have to 28 U.S.C. §§ 1291 and 2253. Hackett then petitioned for a writ of corpus § habeas under 28 U.S.C. 2254 in II. Standard of Review the United States District Court for the , Congress in passed Eastern Anti- Pennsylvania. District of Hack ett, 212 F.Supp.2d at terrorism and Death challenged Penalty 385. He Effective Act guilt (AEDPA), and sentencing phases of his trial “altered the of standard grounds. on six The District Court denied review that a federal habeas court must claims, five of these but apply concluded to a prisoner’s state claim that was sylvania Supreme unreasonably applied Court following mitigating circumstance: "The Mills"). significant defendant history prior has no of Accordingly, criminal jury convictions.” . Court, Supreme in affirm- aggra- “found ... one more or ing Spence's appeal, sentence on direct stated vating outweigh any circumstances which aggravating "[t]he found the two mitigating circumstance[ ].” argued by [circumstances the Common- circumstances, wealth] and no Gray, 608 A.2d at 536. The verdict sheets sentencing returned a Gray verdict of death.” for and Barrett could not be located. Spence, 627 A.2d at 1180. they This is not correct. imprison- That were sentenced to life sheet, Spence’s part submitted degree as of ment for first murder means the record appeal in Hackett's before this either found no circumstance or Court, indicates the found the same two found one or more aggravating circumstances outweighed by as it had in Hack- mitigat- that were one or more case, ett’s Spence but as to also found (1) in a dеcision resulted cation court.” in state the merits on adjudicated clearly ... Ctr., contrary established 295 F.3d “was Corr. v. Delaware Stevens law, by the Su- Cir.2002) v. determined (3d (citing Williams Federal 361, 368 States,” 402-13, or of the United preme Court Taylor, 529 U.S. (2000) (interpreting (2) application an unreasonable L.Ed.2d “involved 2254(d)(1)). law, See also Dunn clearly § Federal ... established 28 U.S.C. (3d Cir. Colleran, 456-57 F.3d by as determined Williams). specif More 2001) (explaining the “con- Under States.” United a new restriction “placed ically, AEDPA clause, court habeas a federal trary to” grant courts federal power on the court if the state the writ may grant prisoners.” to state corpus of habeas writs to that opposite at a conclusion arrives (quoting Dunn, at 456-57 F.3d on a question this Court reached 1495)). Williams, 399, 120 S.Ct. a case court decides if the state law petition his habeas filed Hackett Because a set than this Court has differently effective, we follow became after AEDPA facts. indistinguishable materially greater defer- give directive and Congress’ application” the “unreasonable Under findings courts’ factual ence state may grant court clause, habeas a federal 457. Ac- id. at See legal determinations. court identifies if the state writ AED- provision cording to the relevant from legal principle governing correct PA: unreasonably decisions but this Court’s (d) a writ of habeas application An to the facts principle applies that custody person in of a corpus on behalf case. prisoner’s n judgment of State pursuant 412-13, Williams, 529 U.S. (quoting respect granted not be court shall that, 1495). per noted further Weris S.Ct. adjudicated on claim that under Williams, inquiry the appropriate unless proceedings in court merits State standard application of’ - “unreasonable of claim adjudication application the state court’s was “whether (1) con- that was decision resulted was ob federal law clearly established of to, an unreasonable trary or involved at 196 228 F.3d jectively unreasonable.” of, Feder- clearly established application 1495). 409, 120 S.Ct. 529 U.S. (quoting law, by the Supreme al as determined law of aрplication federal An unreasonable the United States.... Court of merely an incorrect more than involves 2254(d)(1). § 28 U.S.C. “[A] federal law: application of erroneous explain our Court decisions Prior of may grant relief habeas court federal “contrary to” and “unrea thoroughly a state that court determines unless clauses of’ application sonable application erroneous incorrect or court’s 2254(d)(1). instance, in Werts v. § For also federal clearly established law (3d Cir.2000), F.3d Vaughn, 228 Williams, 529 (citing Id. unreasonable.” delivered that Justice O’Connor we noted 1495). 411, 120 U.S. Supreme of the Court opinion that, year prior to one amended stan also noted as to AEDPA’s Weris Williams Williams, our operation an en banc decision and described dard review Al- Court, SCI Superintendent, clauses as follows: Matteo both (3d Cir.1999), bion, had con- 171 F.3d 877 2254(d)(1), may § the writ Under .issue , applying procedure strued following two condi- if 2254(d)(l)’s of review: § standard adjudi- court state is satisfied —the tions First, the federal habeas court must de- sis—whether the state court decision was termine whether the state court decision based on an application ‘unreasonable “contrary Supreme Supreme to” prece- precedent.” Court Court Id. (citing Matteo, 888). dent that governs petitioner’s F.3d at claim. In performing this appropriate only inquiry, Relief is “we are petition- if the not authorized to grant corpus habeas er shows that relief “Supreme prece- simply because we disagree with the requires dent state court’s an outcome contrary to decision or because we would have reached a differ- by reached the relevant state ent if result left to our own devices.” Dubois], court.” [v. O’Brien 145 F.3d Matteo, (citing 889). 171 F.3d at [16, (1st Cir.1998) Rather, 24-25 ]. the ab- the state application court’s of Supreme sence of showing, such a the federal Court precedent must have “objec- been habeas court must ask whether the state tively unreasonable,” i.e., federal “[t]he ha- court decision represents an “unreason- beas court should not grant petition application able of’ Supreme Court unless the decision, state court evaluated precedent: is, whether the state objectively merits, and on the resulted in decision, court objectively evaluated an outcome that cannot reasonably jus- be merits, on the resulted an outcome tified existing Supreme Court prece- reasonably justified. cannot be If dent.” Id. (quoting Matteo, 171 F.3d at so, petition then the should granted. 890); Vincent, see also Price v. Werts, Matteo, 228 F.3d at (quoting 196-97 634, 636, 643, 123 S.Ct. 155 L.Ed.2d 891). 171 F.3d at We further stated our (2003) (unanimously reversing a deci- belief Matteo was in accord with the sion to grant habeas relief as “exceeding] subsequent Court’s decision imposed limits on federal habeas re- Williams, as opinions both make the dis 2254(d)” § view U.S.C. because tinction “that ‘contrary to’ and ‘unrea agreed “[e]ven we with the Court of application sonable of clauses should be Appeals that the Jeopardy Double Clause independent accorded meaning.” Id. at should prevent be read to prose- continued Williams, (quoting 529 U.S. at cution of a defendant under these circum- 1495). stances, it was at least reasonable for the In summary, our review under otherwise.”). state court to conclude AEDPA is proceed as follows. “[W]e III. Discussion

must identify first applicable Supreme precedent Court and determine whether it The District Court in this case con petitioner’s resolves the claim.” (citing Id. cluded that the Pennsylvania Supreme Matteo, 888). 171 F.3d so, To do “it is Court’s decision rejecting Hackett’s Mills sufficient not for petitioner to show “contrary claim clearly was to” established merely that interpretation his Supreme law, federal and thus determined it precedent Court plausible is more (the than the Court) District was “not constrained court’s; rather, state petitioner must by the deferential standard of [AEDPA’s] that Supreme demonstrate prece Court 2254(d)(1).” section 212 F.Supp.2d at 406. requires dent the contrary outcome.” Id. We plenary exercise legal review over this Matteo, 888). (quoting 171 F.3d at “If we conclusion, Stevens, 368, 295 F.3d at determine that state court decision disagree with the District Court ‘contrary not to’ applicable Supreme AEDPA deference does apply not to Hack- precedent, Court then we are required to petition. ett’s Before explaining our rea advance to the step in analy- second however, sons for so concluding, we first—

288 ver on the listed circumstances mitigating identify and instructed as Williams — was not, the defendant If it did form. dict Court Supreme applicable discuss the jury unani If the death. sentenced precedent. cir mitigating more one or mously found Standard: Court Supreme A. The to de cumstance^), was instructed it next Boyde Mills, McKoy & unanimously found that termine whether circumstance(s) outweighed mitigating 1. Mills circumstance(s). If the 486 Maryland, v. Mills begin We yes, the defen question this answer 1860, L.Ed.2d 100 367, 384, 108 S.Ct. U.S. imprisonment. to life was sentenced dant va- (1988), where 384 i.e., mitigating the answer If no— concluding after a death sentence cated ag eircumstance(s) outweigh not did probability a “substantial there was circumstance(s) defendant gravating —the receiving the upon jurors, reasonable 384-89, 108 Id. at to death. sentenced case, in this judge’s instructions S.Ct. 1860. form as the verdict complete attempting argued in Mills petitioner they thought instructed, have may well constitutionally in- sentencing scheme was any miti- considering from precluded were all of the if or “even some firm because jurors agreed 12 all evidence unless gating cir- mitigating some to believe jurors were cir- such particular of a on the existence present, were or cumstance an such for ‍​​‌‌‌‌​​​‌‌‌​​‌​​​‌​​​‌​​​‌‌‌​‌‌‌‌​​​​‌​‌​​​‌​​‌‍potential cumstance.” unanimously agree on they could unless rule well-established outcome violated fac- mitigating of the same the existence must capital case that the sentencer be necessarily would tor, the sentence (and, conversely, to consider permitted (em- 371, 108 S.Ct. Id. at death.” considering) from precluded must not be text). only elev- example, For phases by a defen- offered evidence or jurors agreed that twelve en of less than a sentence arguing dant cireumstance(s) existed— more (citing S.Ct. death. or agreed that one if all twelve Oklahoma, 455 U.S. Eddings v. circumstance(s) existed, more (1982); v. Lockett L.Ed.2d 869, 71 eircum- to the same did not but 2954, 57 Ohio, 98 S.Ct. U.S. stance(s) give jurors could (1978); Car- Skipper South —individual L.Ed.2d 973 to that evidence any effect olina, not deliberate all, jury could and the (1986)). L.Ed.2d 1 circumstance(s) whether at is- sentencing scheme Maryland imprisonment of life merited a following man- in the sue in worked 373-74, 108 S.Ct. at death. Id. instead of of findings jury’s ner, on the depending 1860. circumstances. aggravating and in Mills Thus, question” the “critical to determine instructed jury first was interpretation petitioner’s or more was “whether unanimously found one it whether is one a reasonable sentencing process listed on the of the aggravating instruc- from the have drawn not, jury could the defen- If it did form. the verdict from the judge and given by the trial tions imprisonment. to life sentenced dant was at Id. in this case.” employed form or verdict unanimously find jury did If the added). 375-76, (emphasis eircumstance(s), 108 S.Ct. 1860 it next more jury to required the form it The verdict whether was instructed determine “no” beside each “yes” mark or either unanimously found one more If listed from considering all- mitigating evidence. jury every understood that time it marked McKoy repeated the rule in Mills that a “no” a mitigating beside death sentence cannot stand if jury indicating it had unanimously conclud verdict form created a ed the had petitioner prove failed to substantial probability that ju- reasonable circumstance, then the death sentence was rors thought they precluded were from juror as each upheld, had considered considering mitigating evidence unless the rejected proffered mitigating evi jury unanimously agreed on the existence But, hand, dence. on the other if the particular circumstance. Id. at it was to mark “no” if it believed could not 438, Mills, 110 S.Ct. 1227 (citing 486 U.S. unanimously agree whether the same miti 1860). S.Ct. The Court also existed, gating evidence even one holdout noted that Mills reasoned that allowing a juror prevent jurors could the other from juror holdout to preclude other weighing mitigating against evidence ag from considering mitigating evidence vio- evidence, gravating and the death sentence lated the principle that a may sentencer 376, 108 could not stand. Id. at S.Ct. 1860. prevented nоt be from giving effect to all Concluded Court: evidence. Id. (citing is a probability [TJhere substantial 1860). U.S. 108 S.Ct. jurors, upon reasonable receiving the The North Carolina Supreme Court at judge’s ease, instructions in this and in tempted to distinguish byMills concluding attempting to complete the verdict form Maryland’s that —whereas sentencing instructed, may well thought have required scheme impose they precluded were from considering i) penalty death if it found any mitigating evidence unless all 12 circumstances and no mitigating circum jurors agreed on the existence of a par- ii) stances or aggravating circumstances ticular such circumstance. Under orn- that outweighed any mitigating circum eases, the sentencer permitted must be stances —the North Carolina procedure al to consider all mitigating evidence. The lowed the to recommend a sentence of possibility that a single could imprisonment life even without consideration, block such and conse- mitigating circumstances. Id. (discussing quently require impose the decision of the North Carolina Su death penalty, is one we dare not risk. Court). preme The United States Su 108 S.Ct. 1860 (emphases add- Court, preme however, concluded’that the ed). purported place distinction did not McKoy statute scope outside Mills. fact remained that jury, revisited Mills two if it even

years in McKoy Carolina, later v. North a sentence of imprison recommended life 433, 435, ment, required to make its decision (1990), L.Ed.2d and held una- based on circumstances it unanimous nimity requirement ly North Carolina’s found. Id. at “The capital sentencing “pre- scheme—which unanimity requirement thus allows one jury the from considering, vented] in juror de- holdout to prevent the from others ciding impose to penal- whether the giving death they effect evidence that believe ” ty, any mitigating factor that jury does the calls for a ‘sentence less than Id. death.’ not unanimously (quoting 110, find”—was unconstitu- Eddings, 455 U.S. at 102 . 869) tional because prevented it the addition, sentencer S.Ct. even if all twelve 290 141, 146- 414 U.S. Naughten, ing Cupp that some

jurors agreed (1973)). 396, 368 47, 38 L.Ed.2d 94 S.Ct. give could not they present, were stances legal that recognized “[t]he The Cоurt next unanimity without to that evidence effect reviewing jury instructions for standard circumstance, the precisely the same toas jury’s a impermissibly restrict claimed to The Court Mills. in Id. found violation is less relevant of evidence consideration not in was decision that “[o]ur noted For exam- Id. from our cases.” than clear jury is re- the in which to cases limited in Mills alone ple, penalty death impose quired different three to at least we alluded out- circumstances that finds challenge: evaluating such inquiries for or that weigh jurors “could have" whether reasonable Id. at all.” exist mitigating circumstances interpretation impermissible an drawn in (emphasis 439-40, 1227 110 S.Ct. at instructions; court’s trial from the “Rather, it would be text). held that we possibil- is a “substantial there whether to allow of arbitrariness ‘height may have rested its ity that penal- the death imposition require ground”; ‘improper’ on the prevent able to 1 ty’ where ap- have” “would how reasonable giving effect 11 from other instructions. and understood plied 1227 440, 110 S.Ct. at Id. evidence.” 374, (internal 108 S.Ct. citations 379,108 1860 S.Ct. (quoting Id. text). text). 1860) omitted) in The Court (emphasis in (emphasis may not be “[ajlthough that there stated Boyde 3. among these various great differences upon settle important it is phrasings, McKoy, the day it issued The same this and other for single formulation Boyde v. decided Supreme Court Califor this kind deciding employ courts 1190, 108 nia, 110 S.Ct. U.S. question.”4 federal (1990). clarified the Boyde L.Ed.2d inquiry proper that thus held Boyde for legal standard is reviewing a instruction “ambig asserted to be penalty cases death subject to erro ambiguous therefore subject to an erroneous and therefore uous there is a “is whether interpretation neous 1190. 110 S.Ct. interpretation.” jury has ap likelihood assessing reasonable noted “[i]n Court first way in a challenged instruction, instruction plied challenged jury of a the effect constitu prevents consideration ... ‘that a familiar rule follow the 380, 110 Id. at evidence.” tionally relevant jury may not be to a single instruction However, a “need 1190. defendant isolation, S.Ct. but must be judged artificial likely more overall establish context viewed ” impermissibly in- than not5 to have been (quоt- charge.’ Id. at ” 2, 110 S.Ct. every Id. at 394 n. majority individual.' Boyde indicated it Id. While the J., (Marshall, dissenting) (quoting In re proper merely clarifying the standard 363-64, Winship, review, U.S. vehement- Justices in the four dissent (1970)). reviewing 25 L.Ed.2d 368 disagreed. contrary, in ly "To the judgments we have described criminal “having "likely” is that demands one between standard As definition difference hand, occurring existing or than certainty better chance reasonable not,” Third New Dic- significant on the Webster's International doubt one that tolerates (1971), plausibly could other, tionary apart 'a someone that sets soci- as the difference not a argue that "reasonable likelihood” good freedom of ety name and that values (as instruction,” by hibited though capi- “a opposed to merely a possibility) that sentencing proceeding tal is not jurors inconsis- have applied the challenged instruc- tent Eighth with the Amendment if there tion in a way that prevents the consider- only a possibility of an such inhibition.” ation of constitutionally relevant mitigating added). (emphasis The Court further evidence. explained its requiring reasons for a “rea- B. Application: Zettle- Third Circuit jury confusion,

sonable likelihood” of rath- moyer, Frey Banks er than the various «fe formulations Mills: standard, This “reasonable likelihood” Three times previously our Court has think, better accommodates the con- applied Boyde standard of review to a finality cerns of accuracy than does claim, with varying results. We re- a standard which inquiry makes the de- view each below. pendent single on how a hypothetical juror

“reasonable” could or might have Zettlemoyer interpreted is, the instruction. There In a pre-AEDPA decision, Zettle course, strong policy favor of accu- moyer Fulcomer, (3d 923 F.2d 284 Cir. rate determination of appropriate 1991), the petitioner argued the following case, capital sentence in a but there is trial court instruction erroneously suggest equally an strong policy against retrials ed jury’s finding on mitigating years after the trial first where the circumstances must be unanimous: claimed error amounts to no more than verdict, course, must be unani- speculation. do not solitary Jurors sit in mous. Again, you if find unanimously, parsing isolation booths instructions for beyond doubt, a reasonable the aggrava- subtle shades of meaning in the same ting circumstance that I have men- way lawyers might. Differences tioned, applicable, that’s among in interpretation them of instruc- the victim prosecution was a wit- may tions be thrashed out in the deliber- felony ness to a and it was committed process, ative with eommonsense under- and he was murdered so that he would standing of the light testify, is an aggravating cir- of all that place has taken at the trial you cumstance. If find that aggravating likely prevail over technical hairsplit- circumstance and find no mitigating cir- ting. cumstances or if you find that aggra- 380-81,110 Id. S.Ct. 1190.6 vating circumstance which I mentioned ‡ ‡ $ you outweighs any mitigating circum- sum, petitioner’s Mills claim alleg- find, you your stance verdict must be confusion unanimity as to If, must penalty. the death on the other be examined under Boyde hand, you determine find that the Commonwealth whether there is a reasonable likelihood has not proven an aggravating circum- likely lesser standard jurors than "more than not.” twelve to be confused in- Wagnall's also Funk & See New Standard capital sentencing struction in a case. But Dictionary English of the Language 1434 would the taint of confusion be to a less (1941). (or fewer) defendant but eleven were confused? We believe instead that the Su- may appear Boyde It focuses on the preme aptly more focuses likeli- single confusion entire and not a legal ness allegedly confusing standard an juror. We analysis. avoid that avenue of Its instruction. logical requires end is a standard that not did instruction unanimous, this but ifor doubt reasonable beyond stance rele- considering jury the from preclude circum- mitigating have, that the

they anticipa- in deliberating vant evidence aggravating the outweight [sic] stances Second, verdict Id. the verdict. tion of in a bring must circumstances, you then lan- The permissible. was form likewise imprisonment. of life verdict unanimity as explicitly required guage The absence circumstances. aggravating said, you are law, as I ... Under mitigating as to instruction of a similar to fix of office your oath obligated unanimity that indicated circumstances unanimously you if at death penalty jury, focus the To required. not was a reasonable beyond find and aggravating identify the required cir- aggravating an is there that doubt found, not but it had circumstance mitigat- (sic) either no and cumstances mitigating as to to do so similarly required aggravating or that circumstance ing jury that circumstances, to the suggesting mitigating any outweighs circumstance unrestricted discretion and it had broad circumstances. Fi- Id. mitigating circumstances. consider addition, jury com- at 307-08. Id. instructed court the trial nally, while form: followingverdict pleted the (as to the conclusion its ultimate jury that sentence unanimously jury 1. We unanimous, sentence) must be defendant’s _[X]_ life—death to: the defendant each jury that to the indicate did not this imprisonment. also re- process in its deliberative step death) if (To in the sentence used be Id. unanimity. quired unanimously: jury have found theWe

_ Frey circum- aggravating one at least circumstance. mitigating no stance Fulcomer, F.3d Next, Frey v. is_ circumstance aggravating in- (3d Cir.1997) Zettlemoyer, also —like out- _[X]_ circumstance aggravating filed before petition a habeas volving circumstances. weighs [the] con- again effective—we AEDPA became [the circumstance The aggravating jury to a challenge similar sidered a witness prosecution murdering of Frey The trial court instruction. felony testimony case.] in a prevent charged: Id. at 308. must now jury, you Members should be this defendant whether decide had petitioner that concluded

We or life imprisonment. to death sentenced a reasonable there is that “failed to show your upon depend will sentence in- these jury applied that likelihood aggravating concerning findings con- its way precluded in a structions The Crimes evi- relevant sideration must be a the verdict provides Code First, were dence.” unanimous- of death sentence directed not defective. ly at least finds existence find it must circumstance, or stance particular aof one or unanimously finds if the mitigat- weigh only those could that it told more unаni- it found circumstances which any mitigating circumstances. outweigh from case distinguishing mously, life must in- The verdict correctly Also, court the trial Mills. other cases. imprisonment must be its structed Also, bite.” Id. sound the Zettlemoyer court trial had “used the term ‘unanimous your Remember verdict must be a ly’ modify only ‘agree’ term in the you sentence of death if unanimously ” subsequent phrase ‘agree and find.’ Id. find at aggravating least one circum- Frey The trial court “did not instruct the (sic) stances and mitigating jury to ‘fix the penalty at you death if stances, you or if unanimously find one ...,’ unanimously and but or more find circumstances rather instructed them to so fix that sen outweigh any mitigating circum- ”’ tence ‘if the cases, stances. In all your other finds. verdict text). Id. (emphases Thus, in “the una must imprisonment. life nimity language in Frey charge could Id. at 922. only modify ‘find,’ the term and hence Frey determined it reasonably was like- jury could reasonably have believed that ly that could have understood this unanimity was required in both its ultimate charge require unanimity in the consid- conclusions, and interim especially given eration evidence.7 “First and the close proximity we have described.” foremost, in entirety, read its the relevant added). Id. (emphasis Finally, unlike in portion jury charge emphasizes the Zettlemoyer, the trial Frey court “did not importance of a finding, unanimous using stress that the different burdens that at phrase frequently in proximi- close tach to aggravating circum ty to—-within seven words—the stances also entail different unanimity re clause.” circumstances Id. at 923. The quirements,” lay jury meaning plausibly particularly found relevant the may have concluded that the same unanim “if clause unanimously finds at ity requirements extended to both. Id. at least one aggravating circumstance and no 924. reasons, For these the Court found ” mitigating circumstance.... Id. “Con- that “it reasonably likely was sidering this proximity close clause —the could have believed required that was is, mind, to the ear and to the one sound find the existence circum quite possible that a bite —it stances unanimously before those circum would, regardless of other qualifying lan- stances could be considered in its delibera guage, believe that mitigating circum- tions,” added), (emphasis id. and that the stances had to be unanimously.” found Id. charge therefore violated Mills.8 Moreover, the Court noted that its con 3. Banks in Frey

clusion inconsistent holding in its Zettlemoyer. separation Lastly, recently analyzed a Mills Zettlemoyer in between clauses em claim stringent the more AEDPA phasizing unanimity cir Horn, standard of in review v. Banks 271 words, (3d Cir.) cumstances (Banks was seventeen “not I), one F.3d 527 part, rev’d in Frey, Zettlemoyer, jury imposed as in charges significantly. in the two cases differed death sentence after that one or Zettlemoyer “Since considered the verdict more outweighed form and the court’s as a whole any mitigating circumstances. See Common- decision, reaching Zettlemoyer, its see 923 Frey, wealth v. 520 Pa. 554 A.2d 31 n. F.2d charge at 308 n. and since the here (1989) (reproducing completed 2 slip). different, significantly the discussion in Zettlemoyerregarding propriety of the ver- Court also noted that the verdict form slip controlling.” dict is not Id. same",as Frey “substantially However, Zettlemoyer. Id. the text of the 294 confusion looking potential instead L.Ed.2d 266, 122 S.Ct. instructions. those applying II), reh’g, (Banks (2002) aff'd (Banks III), rev’d at 545. Cir.2003) (3d F.3d Banks, nom., Beard sub part delivered court Banks trial (June 24, WL instructions: following jurors the IV).9 I Court Banks The 2004) (Banks now jury, you must the Members pe the by presented question the phrased in this the defendant whether decide the “whether claim as Mills titioner’s life or to to death sentenced is to be case Court determina Supreme Pennsylvania the Informa- each of on imprisonment the constitutionality of the regarding tion have returned you upon which tions polling slip, and instructions, verdict first in the guilty of murder verdict application unreasonable an jury involved degree. Court at F.3d 544.10 The 271 of Mills.” will de- impose you will sentence The affirmative, in the question this answered concerning aggra- findings your on pend Supreme Pennsylvania concluding and vating no Mills ruling was there by erred Court in this Common- Code [sic] Crime teachings applying without violation must be verdict that the provides wealth statute the state Mills, examining by and jury unani- if of death a sentence derived were from which claim. Mills of Banks’s gard to the merits peti granted the I in Banlcs decision

9. Our opinion essen- merely augment that We concluding relief after habeas tioner Teague of the tially replacing its discussion unreason had Supreme Court Pennsylvania Accordingly, analysis here. with the issue evaluating the in law ably applied federal penalty a new requiring judgment our 543- at 271 F.3d claim. petitioner's Mills unchanged. will remain phase for Banks unneces found it doing, our so Court 551. III, Su at With F.3d 247. 316 Banks applies retro Mills sary whether to evaluate overturning our conclusion preme Court Teague per review actively on habeas to cases Mills, retroactivity of as to III Banks 1060, 288, 103 Lane, S.Ct. U.S. 109 - -, -, IV, S.Ct. U.S. Banks Pennsylvania (1989), because L.Ed.2d WL 159 L.Ed.2d retroactivity. on not ruled Supreme Court had applied cannot be (concluding that Mills *11 I, at 541-43. 271 F.3d Banks a new it "announced retroactively because per Court in Supreme United States within that falls procedure of criminal rule panel’s determi- opinion reversed curiam holding in exception”), our Teague neither analysis was unneces- Teague nation is no Mills claim petitioner's to the I as Banks II, U.S. at sary. Banks longer ap as longer precedential, Mills however, Supreme doing, Nonetheless, In so I in Banlcs the discussion plies. petition- did not reach it Court stated that to our relevant is instructive on Mills by con- erred our argument that Court er's inquiry. current cluding that directly to AED- moved was unreasonable I Court Banks decision 10. The Court's second, of” application On re- "unreasonable ‍​​‌‌‌‌​​​‌‌‌​​‌​​​‌​​​‌​​​‌‌‌​‌‌‌‌​​​​‌​‌​​​‌​​‌‍PA's clause, Mills. Id. analysis any analysis of mand, prior whether bypassing its reaffirmed our Court claim, "contrary to” federal stating: decision court petitioner's Mills state argues explained "Banks panel was re- ruling this case law. previous Our 'contrary fact, that, only insofar the determination Supreme Court by the versed dictates. Mills’ it violated whether unnecessary to' because to decide it held analysis, the Penn since the better Because We application. think retroactive had Mills Mills referenced Supreme sylvania application our hold that we now impacted the considering how to be seemed of Banks’s review on habeas case, unreasonable rely is to disturb Banks by Teague, we do not prohibited event, which, clearly application,' in- opinion, previous of our the remainder at 545 n. 21. Id. evident.” holding re- cluding its discussion mously finds at least one aggravating nimity was required to consider mitigating and no evidence, and the trial explanation court’s stances, or if jury unanimously finds of the distinctions between the burdens of one or more aggravating circumstances proof aggravating and cir- outweigh any mitigating circum- cumstances also failed to clarify the dis- stance or circumstances. tinctions between the unanimity require- Remember, under the law of this Com- ment for either set of circumstances. monwealth, your must be a sen- at 548-49. you tence of death find at Banks I next reviewed the verdict slip least one aggravating circumstance and and concluded that it suggested also to the no mitigating circumstance, you or if jury a unanimity requirement as to miti- unanimously find one aggrava- or more gating form, circumstances. This as com- ting circumstances which then outweigh by pleted jury, was as follows: any mitigating circumstances. 1. jury We the unanimously sentence cases, In all other your verdict would be defendant the above matter

life imprisonment. Death again, Once the Commonwealth has the _ Imprisonment Life burden of proving aggravating circum- beyond stances a reasonable doubt. (To 2. completed if the Sentence is The defendant has the of prov- burden Death) jury We the have found unani- ing mitigating pre- circumstances a mously ponderance of the evidence. — At least one aggravating circum- If, after conscientious and thorough de- stance and mitigating no liberations, you are unable to aggravated circumstance(s)(is)(are): your your verdict, findings you _In 1. the commission of the offense should report that to me. knowingly defendant grave a created Id. at 546-47. of risk death to person another in addi- Banks I juxtaposed these instruc- tion to the of victim the offense. against tions those our Court found to be _The 2. defendant has significant a constitutionally defective in Frey. Because history fеlony involving convictions Frey pre-AEDPA decision, was a it did not the use or threat of violence to the per- control holding I, in Banks but “none- son. theless our reasoning there regarding the _The 3. defendant has been convict- implications Mills of a very similar ed of offense, another federal or state charge is applicable.” instructive and Id. committed either before or at the time 544, 547. at After quoting por- extended issue, of the offense for which sen- tions of Frey, Banks I concluded that imprisonment tence of life or death was “[tjhese same concerns dictate the same imposable or the defendant was under- result here.” Id. 548. Our Court de- going a sentence of life imprisonment termined any for at the reason time of the com- Banks, Mills, like in Frey, those violated mission of offense. and the Pennsylvania Supreme ex- Court’s Or (and approval) amination of the instruction _X_ was therefore an application unreasonable or One more aggravating circum- of Mills. Most significantly, the instruc- stances outweigh which any ambiguous tions were as to whether una- circumstance or circumstances. or including “[o]ne unanimously, found more stance(s)(is)(are): or circumstance outweigh _In offense of the the commission 1. lan- Id. No additional circumstances.” grave created knowingly the defendant between the distinctions explains guage in addi- person another of death risk aggrava- requirements unanimity offense. victim tion circumstances, and no- ting and _The has a significant defendant form instruct does where involving felony convictions history infer that could to the of violence threat [sic] the use found marked might be person. For existed. the circumstance _JL_ convict- been has defendant reasons, slip also violated the verdict these offense, state federal or of another ed “for time or at the before either committed there ruled have issue, a sen- for which of the offense an examination without violation or death imprisonment life tence the verdict implications the content under- defendant imposable in- proper employing slip and without imprisonment of life going application an unreasonable quiry com- of the at the time any reason for Mills.”11 offense. mission circum- mitigating The Charge Hackett C. The stance(s)(is)(are): Frey, Zettlemoyer, _X_ lead Following the was under defendant The 1. setting out the Banks, by begin or emotion- extreme mental influence to trial court’s al disturbance. case: Hackett’s _The of the defendant capacity

2. conduct criminality of his appreciate upon your depend will sentence The require- to the his conduct or to conform or miti- concerning aggravating findings impaired. substantially law was ments of Code The Crimes gating circumstances. _ matter the sen- must be a verdict Any provides other that unanimously or record if the character of death concerning tence circum- aggravating or the circumstances at least the defendant finds circumstance, and no offense. stance his or unanimously finds one if the or Id. at 549-50. [sic] aggravating more only reasonable “it I found Banks circum- outweigh any which at least form itself that conclude The may determine. you that stances re- suggestive, likely confusing, and more impris- of life a must be sentence verdict miti- as to unanimity need for garding other cases. onment Id. at 550. circumstances.” gating aggravating defines Code Crimes jury’s reason- explains that statement For the of death—“We imposing ”— at this time confronting you purposes unanimously .... jury have found matters, case, only following this follows everything implies already we have problems as jury poll, briefly I also examined 11. Banks phase instructions penalty ap- identified polling does "the but concluded slip.” Id. and verdict the confusion to or to add reduce pear either proven, can constitute cir- aggravating evidence, consider all of the giving it the weight cumstances. you which determine it to be entitled, remembering you are not Now, gentlemen, ladies and I digress for merely recommending a punishment. may moment. Some of these have no you verdict return will actually fix application, going give but I’m them punishment at death or life impris- you. all to You will then have to make a onment. whether, determination as to in your Remember again your verdict must

view, they apply or not. be unanimous. All you twelve of must possible [lists agree. note, Please it therefore cannot stances] by be reached a majority vote or I am a repetitious. note, bit You may percentage. It must be the verdict of any some of those don’t application have each and every you. one of matter, to this giving but I’m them all to your Remember that verdict must be a you. your It is determination to find as sentence of if you death not, you it, must or see you whether find at least one aggravating circum- things just I’ve read consti- stance and no mitigating circumstance, circumstances, tute ap- as it you or if unanimously find one or more plies to this case these defendants. aggravating circumstances which out- purpose For the purposes of this weigh any mitigating circumstances. case, matters, the following if proven, cases, all other your verdict must be a can constitute circumstances: sentence of imprisonment. life possible mitigating [lists circumstances] You given will be slip, Next. The Commonwealth has the bur- you to, will refer ... upon which to den proving of aggravating circum- your record findings. verdict and You beyond stances a reasonable doubt. As will follow the directions on the verdict you recall, will I defined that term for slip and do whatever is required. you. The defendant has the burden of gentlemen, Ladies and finally, after con- proving circumstances, but deliberation, scientious thorough and only by preponderance of the evidence. you are unable your findings to on This is a lesser burden of proof than verdict, you report to me. If should beyond a reasonable A prepon- doubt. in my opinion further deliberations will derance of the evidence exists where one in result agreement unanimous side is more than believable the other sentence, the be, may whichever it it will side. my duty be to impose then a sentence All sides, the evidence from both includ- upon the ... impris- ] of life defendant ing you the evidence heard earlier dur- onment. chief, in the trial to aggravating as Hackett, (footnote 212 F.Supp.2d at 400-01 or mitigating circumstances important is omitted). form, The verdict completed as proper you for to consider. You by jury, Hackett’s is as follows: should not any decide of feelings out of We, jury, in enpaneled [sic] vengeance prejudice or toward the de- case, above having entitled heretofore acting fendants as I’ve heretofore said. determined that defendant ... * * * * * * guilty of murder degree, of the first do hereby Now, find: you, the verdict is for ladies and CIRCUMSTANCE(S) gentlemen of the jury. Remember and AGGRAVATING the commis- time of at the reason fireman, offi- peace awas victim The 1. () offense of sion concerned servant public or cer killed was who detention convicted has been official 11. The defendant () of his duties ei- murder, committed performance of another time of or at the ther before by paid or was paid defendant 2. () at issue offense had contracted or person another or person another paid by convicted has been or pay The defendant 12. by paid pay or be commit- conspired manslaughter, voluntary has of killing of the person at the time or another either before ted () (/) at issue. victim offense CIRCUMSTANCE(S) being held The victim 3. MITIGATING reward, or or for ransom defendant his- significant has no a. The defendant () hostage or shield as a () convictions prior criminal tory of occurred victim The death 4. influ- was under defendant b. in the engaged defendant while mental or emotional of extreme ence () an aircraft hijacking () disturbance wit- prosecution awas The victim 5. ap- defendant capacity c. The felony other or a murder ness to con- criminality of his preciate defendant by the committed to the conduct his or to conform duct preventing purpose killed for substantial- of law was requirements the defendant against testimony his () impaired ly pro- jury or criminal grand time at the the defendant age of d. The () offenses involving such ceeding () the crime killing committed defendant extreme acted under e. The defendant felony aof perpetration while duress, not suсh duress although prosecu- a defense to constitute the offense commission In the (Relating under Section tion grave knowingly created defendant duress), the substan- acted person to another of death risk () person of another tial domination offense the victim addition in the participant awas f. The victim (/) or conduct homicidal defendant’s by committed was The offense 8. () acts homicidal to the consented () of torture means in the participation g. The defendant’s his- significant has a The defendant () relatively minor act homicidal involving felony convictions tory of mitigation of Any other evidence h. to the violence threat of or the use and record the character concerning () person circum- and the the defendant convicted has been 10. The defendant () his offense stances offense, or State another Federal unanimously We, found jury, have or at the before committed either circum- aggravating at least issue, for [/] of the offense time circum- stance imprison- life a sentence which eircum- aggravating stance. The possible or death ment (are)_# stance(s) # 7 (is) a sen- undergoing defendant any imprisonment life tence of one or more

[] cord with Mills Maryland, outweigh stances which 100 L.Ed.2d 384 (1988). circumstances. The cir- Mills concerned a Maryland cumstance(s)(is)(are)_ statute required jurors which unani- mously agree on each individual miti- We, jury, unanimously render the gating circumstance after deciding ag- following sentencing verdict: gravating factors. Absent unanimous (/) DEATH agreement, Maryland statute barred () LIFE IMPRISONMENT consideration evidence App. 98-100. The verdict form was given as to a circumstance. The Su- signed by jurors. all twelve Id. at 100. preme Court held that the statute violat- ed Eighth Amendment because a “Contrary Analysis D. AEDPA To” single Maryland juror could force a Our first task under AEDPA is to death verdict on the other inquire whether the decision of the Penn refusing to agree that mitigation existed. sylvania Supreme contrary Court was Pennsylvania statute, Supreme United States precedent. Court Pa.C.S. Werts, § opposite and, therefore, See 228 F.3d at does the 196-97. The Dis was, trict does not Court held that it violate the primarily be rule Mills. The cite, Pennsylvania statute, cause state court failed to ap “[t]he Pa.C.S. 9711(e)(l)(iv), § ply, or requires otherwise refer to the Boyde Hackett, unanimously standard.” F.Supp.2d agree that no mitigating Pennsylvania circumstances exist Court analyze agree did on a Hackett’s claim verdict for a Sentence of Thus, death. improperly, but did so while a single Pennsylva the District Court concluded, juror nia always can prevent because focused on the con a death sentence, stitutionality single of the state can sentencing stat never com one, pel single juror ute rather than on as could a the issue of con under the fusion, solely Maryland relied former statute. prior Jury state court instruc (none cases tions in the applied Boyde penalty phase which ei follow ther), language and failed to of the death penalty consider the in stat ute do not structions the context of recreate the error in the entire Mills. proceeding. Tilley, Id. at Commonwealth v. 404-06. 528 Pa. (1991); 595 A.2d 575 Commonwealth v. We with the District Williams, 524 Pa. 570 A.2d 75 Supreme Court’s treat- (1990); O’Shea, Commonwealth v. ment of Hackett’s Mills claim was not 384, (1989), Pa. 567 A.2d 1023 cert. de comprehensive. Indeed, the sum total of its nied, 498 U.S. 111 112 discussion on this issue was as follows: (1990); L.Ed.2d 180 Commonwealth v. Hackett argues next that the trial court (1989). Frey, 520 Pa. 554 A.2d 27 erred in charge its to the during penalty phase by

the failing Here, to instruct the trial court’s instructions exact- jury they the need not ly be unanimous in penalty statute, followed the death finding mitigating § circumstances in ac- Indeed, Pa.C.S. 9711.12 Hackett con- Pennsylvania Supreme itself, constitutionality Court stated of the statute but argues here in a footnote: given by "Hackett that his the instructions the trial court. unique question claim is in that he does not Since the trial court here followed the lan- Boyde) (ie., of instead under alone Mills “recited court the lower

cedes petitioner for a bar not raise the trial does statute.” of language relief. following the statu- obtain not err did court language. tory de- Supreme Court Pennsylvania If Hackett, Mills, A.2d at logically it v. relief under Commonwealth Hackett nied omitted) in (emphasis (internal applying the same footnote done have would text). to demonstrate unable petitioner A Boyde. juror confusion of probability a substantial Pennsylvania Su- cursory, the

Although of as likelihood a reasonable contrary to cannot show was not decision Court’s preme Boyde anal- Thus, of the absence purpose much. for the precedent Court Supreme decision “result!] not ysis AEDPA. did relief under habeas granting clearly ... established contrary explained Court Supreme As by the Su- law, as determined ‘contrary’ com- word Federal Williams, “[t]he ” ‘diametrically the United States.... to mean Court preme understood monly added). 2254(d)(1) nature,’ (emphasis or in character U.S.C. different,’ ‘opposite ” Pennsylvania way, had another ‘mutually opposed.’ Put Boyde, Third it would applied (quoting Webster’s Court Supreme (1976)). For this Dictionary 495 same result. arrived have New International certain- District will Thus, reason, disagree decision state-court we “[a] clearly established claim is contrary to our that Hackett’s ly conclude be Court a rule applies court under state if the reviewed precedent appropriately more set governing second, law 2254(d)(l)’s appli- “unreasonable § that contradicts I, in our cases.” 271 F.3d forth Banks of’ standard. cation Cf. Mills, but applied (“We did analysis, Supreme Court think the better n. 21 at 545 incom- thus was analysis Its apply Boyde. Court ref- Pennsylvania Supreme since governing standard is the Boyde plete, consider- and seemed Mills erenced juror confu- claims case, for Mills of review is to the Banks impacted ing how state not follow it does sion. But application’ rely on ‘unreasonable contrary to Su- also ”). court decision [standard].... This is because precedent.

preme Court Application AEDPA “Unreasonable E. not contra- does Boyde but clarifies Analysis Of’ dict it. the state determining “whether In among other required, formula- ‘unreason based an decision was court

tions, show a “substantial a petitioner prece confusion, application able whereas probability”13 Werts, note at dent,” F.3d to require that standard Boyde clarified prior opin emphasis our outset the of the same. likelihood” “reasonable charge on the to focus that we are ions event, Mills claim analyzing a [,as] ... statute, necessary its occurrence its ensure guage instruction, word word rolled, ... [probability] that hardly a distinction.” when a die is this is Hackett, 725 n. Webster’s 627 A.2d at 1 out of 6.” be thrown is Commonwealth will [x] Dictionary, at 1806 New International Third 6. context, (1971). "probability” con- In this "Probability” as the be understood should tendency, an out- not or whether odds is one we that, penalty, the death impose out dissenting colleague points Our 384, 108 S.Ct. not risk.” 486 U.S. “weighing” not a dare case, like this Frey, as much however, recognized important an dif- 1860. We is, case. There Becker wrote: Judge then Chief jury verdict where two. The between ference of Mills- sum, holding “In the essential jurors to find unan- required form in Mills cannot juror that one simply McKoy mitigating presence imously the giving from effect the others prevent See 486 U.S. stances. evidence, of whether regardless (“Based mitigating unani- the evidence we upon depends a life sentence imposition miti- following that each of mously find of such evidence.” ‘yes’ on the existence which is marked circumstances gating Supreme Pennsylvania The F.3d at 921. by preponder- exist proven has been ”). Court, however, Mills’ did not fail to heed That is not the evidence.... ance of di- it denied Hackett’s on admonition when case, juror unanimity was s where our Frey had years before rect mitigating appeal the absence —four ground by our Court—on ... enhances the re- been decided requirement “Such sentencing Pennsylvania’s capital liability jury’s decision without im- juror may holdout scheme single that a risk against the views of the a sentence

pose jury unanimously requires 1,n. McKoy, 494 U.S. at 455 other 11.” circumstances mitigating that no J., concurring). (Kennedy, on a verdict unanimously agree exist Thus, while a for a sentence death. in Mills stated its The cases, juror always single Pennsylvania can succinctly: “Under our conclusion sentence, single a death prevent to consid- permitted must be the sentencer one, single compel can as could possibility The never mitigating er all evidence. Maryland juror under the former stat- juror could block such consid- single that a eration, consequently requirе ute. circumstance(s) aggravating unani- significant changes in instructions effected _ (is) (are): these jury. mously We can and do infer from found _ part changes concern on the at least some or more cir- 2. One juries that court that could misunder- mitigat- outweigh(s) any cumstances which previous as to una- stand the circumstance(s). nimity and the consideration of circumstance(s) unani- by jurors. individual evidence _ (is) (are): mously found (em- U.S. at 108 S.Ct. 1860 circumstance(s) by found text). phasis in _ (is)(are): one or more usof recognize, Zettlemoyer We as did further added). (emphases R.Crim. P. 807 Pa. Prey, re- likewise has we too are hesitant to infer too much While slip capital vised uniform verdict cases. its revisions, we is at least from these believe it

Zettlemoyer, (quoting Pa. 923 F.2d wording slip on the verdict relevant 358A); Frey, P. 132 F.3d at 924 R.Crim. "weighing” as to circumstances instructs, (same). slip The verdict now (to emphasize significantly cases was altered part: relevant may be found We, jury, unanimously A. sentence the jurors), one or more whereas no simi- (check one): defendant to change form to lar was ‍​​‌‌‌‌​​​‌‌‌​​‌​​​‌​​​‌​​​‌‌‌​‌‌‌‌​​​​‌​‌​​​‌​​‌‍made to the verdict _ Death juiy’s finding _ strengthen that a the directive - Imprisonment Life mitigating circumstance must be unani- of no findings B. The the sentence mous. (check one): death is based are _ aggravating circum- 1. At least one stance and no circumstance. Hackett, Commonwealth at 725 A.2d 120 S.Ct. 1495. The Pennsylvania Su- text). (emphases in Pennsylvania preme Su- application Court’s of Mills was correct, preme Court is for if only even case, reasonable in this as a single dissent- juror any mitigating had found juror circum- ing could have impossible made jury stance could have imposed a death finding unanimous of mitigating sentence if it unanimously found stance.15

there was one more cir- aggravating F. Conclusion outweighed

cumstances that any mitigat- ing circumstances. Plainly jury could We hold there is no reasonable likeli- imposed not have it hood the in jury Hackett’s applied case death, unanimously after finding ag- did— challenged instruction and verdict form gravating circumstances and no a way that prevented the consideration of circumstance —if single juror even a constitutionаlly relevant evidence. We unwilling join in the verdict. conclude as much jury because the unani- mously found no mitigating

A “state-court decision involves an un- circumstance. Because the found no application reasonable cir- prec- this Court’s cumstance, it did not proceed edent if the state court identifies determine the cor- whether any mitigating governing rect out- legal rule from circumstance this Court’s weighed the aggravating cases but unreasonably applies it circumstances it to the found, unanimously juries facts of the did the particular state prisoner’s Zettlemoyer, Williams, Frey, and case.” Banks. Accord- U.S. ingly, those decisions are distinguishable from this Even pre-AEDPA case. Court Mills identified as the gov- correct review Hackett would not erning legal have been enti- rule under which analyze tled to federal habeas relief. Hackett’s claim of Inasmuch as That confusion. after AEDPA’s enactment application Court’s federal may have been courts’ deference to state cursory both courts has been undertaken without the enhanced, there is even subsequently less clarified reason to standard of review grant petition. Hackett’s Boyde, found We re- but therefore these factors do not verse the judgment of the provide a District sufficient basis for granting ha- 2254(d)(l)’s § beas vacate its order grant- relief. “Under ‘unrea- petition for writ of habeas application’ corpus sonable clause ... a federal and instead enter an habeas order may denying court not simply issue the writ petition. because that court concludes in its inde-

pendent judgment that the relevant state- BECKER, Judge, Circuit dissenting.

court applied clearly decision established federal erroneously law or incorrectly. The majority rejects Richard Hackett’s Rather, that application must be un- petition also habeas by concluding Williams, reasonable.” U.S. state court not reach did a result that was focuses, Though must, analysis defendants, our as it the other one was sentenced to form, instructions and verdict aggravating death because the passing nоte comparative circumstance, that the outweighed verdicts in the joint four defendants' support trials two imprisonment were sentenced to life be- in this case was confused. juty cause the either found no Hackett, For unanimously found no or found one or aggrava- more mitigating circumstance ting while outweighed by circumstances that were two As circumstances. one or more imma- is cases the between distinction this application unreasonable to, or an contrary explained never court The trial expressed rule terial. Amendment of, Eighth the “no “unanimously” find 108 to meant U.S. it 486 what Maryland, in Mills v. (1988). circumstance,” its instruc- and 384 mitigating L.Ed.2d 1860, 100 S.Ct. however, Frey, that in Banks and tions, held showing, no we have as majority makes in this to slip a likely lead reasonably and to instructions the were from, any less before required different unanimity at all was were that case believe and ver than, instructions the factor. mitigating confusing a consider even it could grant to this Court led slips suggestion dict majority’s the Thus, contrary to Horn, 271 Banks v. inMills under relief must in Hackett’s case each that Cir.2001), Frey v. Ful (3d and F.3d 527 mitigating rejected all and considered have Cir.1997). (3d In comer, 916 F.3d 132 accurately re- evidence, more the record result justifies its majority stead, the likely unanimous was this that flects jury unani that Hackett’s ground the sole mitigat- “no that there only finding in circum mitigating “no mously found jurors upon which circumstance” from this majority infers stance.” agree. could not have jury must Hackett’s finding that its instruc- understanding of an Such ver instructions and by the confused been Hackett’s slip violated and verdict tions in to role regard its slip with dict Amendment, as Eighth under the rights the able Like mitigating con- from prevented jurors were individual peti Hackett’s granted Judge who District factor, possibly and mitigating sidering unconvincing. analysis tion, this I find sentence, the absent for a lesser voting un- relief Banks, granted Court this In presence to the of all agreement that essen- concluding upon der AEDPA way, single Put another factor. of that slip and verdict tially the same prove Hackett failed juror, insisting it that likely jury would believe made aby preponder- circumstance un- mitigating evidence not consider could the evidence, compel could ance as to jury was unanimous whole less the jurors who other despite death a particular existence proven evidence felt majority tries evade factor.16 This sentence. life sufficient warrant jury found that Hackett’s by noting Banks Mills situation precisely in circumstance,” whereas “no Indeed, majori- to prevent. seeks rule (and jury found Frey) in Banks it- that Mills passing in ty observes least found in which view, was a case self my weighing stage. reached Maj. Op. n. inquiry,” at 295 notes, current our majority our decision 16. As analysis Banlcs particularly given that the longer Mills is no grant relief Banlcs judgment three unanimous reflects Supreme Court’s hold given the precedential on a granting relief --, Court in Banks,-U.S. of this 124 S.Ct. members ing Beard v. submit, is, indistinguishable I (2004), issue that the Mills Mills 159 L.Ed.2d bears Lane, presented It also here. the one U.S. Teague v. from is barred under rule Stevens, joined by Jus (1989), that Justice mention 103 L.Ed.2d Souter, Breyer, filed a Ginsburg, and Maj. Op. at tices application. See retroactive from noted in which he v. Banks in Beard final dissent became conviction n. 9. Hackett’s have affirmed would decided, four dissenters is no thus there Mills after ques on the grant relief correctly of habeas majority problem here. The Teague identified the reasons ”[f]or regard in Banks Banlcs tion discussion observes our - -, U.S. Circuit[.]” issue, Third although precedential, ing the Mills J., (Stevens, dissenting). at 2517 and relevant "instructive is nevertheless mitigating circumstance and the Supreme vania rejection Court’s of this vacated sentence due to the claim in an resulted unreasonable applica- jury thought likelihood it was law, tion of I federal respectfully dissent. precluded considering from mitigating evi See dence unanimity. absent I. 370, 384, 108 S.Ct. 1860.

U.S. matter, As a threshold I agree with short, the In there is a reasonable likeli- majority that the hood, “unreasonable Boyde applica- v. Cali- under the of standard 2254(d)(1) tion of’ fornia, 370, prong of 1190, § 28 494 U.S. 110 U.S.C. S.Ct. 108 (1990), appears to provide L.Ed.2d 316 that the analyz- best fit for Hackett’s instructions understood its in a Pennsylvania manner the Supreme Court’s de- that violated Mills. Because Pennsyl- reject the cision to Hackett’s Mills claim.17 concеde, however, I do not the that relevant evidence. The state court Pennsylvania Supreme that, Court's decision is instead reasoned because the instruc necessarily analysis immune from under the tions mirrored the language of 42 Pa. Cons. test, "contrary 9711(c)(1)(iv), § to” or that its Stat. would pre decision and because it had scrutiny. viously survive such As Justice held that by O'Connor statute constitutional explained majority for the in that it expressly permit Williams v. does not a 362, 1495, Taylor, single juror 529 U.S. 120 who mitiga 146 refuses to that (2000), tion L.Ed.2d 389 exists to force a "[a] state-court decision death verdict on the jurors, certainly other contrary clearly will be to there can be our no Mills es- violation. Hackett, 210, See precedent Commonwealth v. tablished if the state applies court Pa. 719, (1993). 627 A.2d governing analysis a rule that This contradicts the em law set {i.e., ployed a rule no Mills violation forth in our if the cases.” 529 U.S. at challenged instructions be can read in a S.Ct. 1495. con O'Connor Justice the offered manner) comport stitutional that did with following example "contrary appli- of a to” governing the rule set in Mills and forth cation of federal law: {i.e., Boyde whether a there is reasonable like Take, example, our decision in Strick- jury applied lihood that the challenged the Washington, land v. 466 U.S. 104 S.Ct. way instructions in a that prevented consider (1984). 80 L.Ed.2d 674 If a state evidence). itself, ation of In Mills reject court prisoner's were to a claim interpreted the court state its statute as con ineffective assistance counsel on the stitutional, Supreme but the Court vacated grounds prisoner that the had not estab- the court decision state because there was a by preponderance lished a of the evidence risk that the substantial did not under proceeding result his criminal stand that it could consider evi different, would have that been decision Mills, agreement. dence absent unanimous different,” "diametrically would be "oppo- 371, 384, atU.S. 108 S.Ct. 1860. nature,” site in character "mutually and majority "ap- finds that state court opposed” clearly prece- to our established Mills, plied apply Bоyde," but did not dent because we held in Strickland analysis the state merely therefore court’s prisoner need a demonstrate "reason- "incomplete” necessarily contrary but not probability able ... result Supreme precedent. Maj. Op. Court See proceeding have would been different.” majority acknowledge, fails to how- Id., 104 S.Ct. 2052. ever, Pennsylvania Supreme Williams, 405-06, 529 U.S. at 120 S.Ct. 1495. applied never Mills in the sense that it failed A similar flaw can found in state Mills, identify the correct rule from not to analysis court here. Su- apply Boyde its mention failure to stan- preme Court purported Thus, Mills and cited example dard. as in Justice O'Connor’s rule, analyze Hackett’s under the claim involving misapprehension of the Strickland consider, rule, but the required court failed as is arguably state court's fits decision Boyde, likely Mills and whether the "contrary to” mold federal law. Cf. interpreted Cone, 685, 698, slip its instructions Bell v. prevented (“We hold, manner that (2002) its consideration of L.Ed.2d (Lock- statutory is its source whether the Mills analysis of merits

An AEDPA (Eddings), ), sentencing court ett course, a review begin, must claim ruling (Skipper), evidentiary or an clearly established Court’s Supreme of the the same. is the result Fortunately, our area. in this holdings controlling law on identifying relied Supreme Court task has that our Court fact by the to conclude precedents made easier these question the Mills vacated explored should be fully death Frey, we summa- example, probability For past. there is substantial follows: receiving law as upon relevant jurors, rized the reasonable attempting judge’s Court’s current Under based form the verdict complete Eighth Amend construction thought instructions, may have those penalty in a death ment, the sentencer those only consider could they that to consider permitted case must unani- they factors which the that mitigating evidence relevant different- to exist. Put mously found counseling less as proffers defendant . to were believe if the led ly, Eddings v. of death than sentence individually not each they could 104, that 102 S.Ct. Oklahoma, 455 U.S. certain consider (1982); v. Lockett 869, 1 L.Ed.2d 71 not unani- there was 2954, stances because 586, 57 Ohio, 98 S.Ct. U.S. 438 to the existence as agreemеnt mous (1978). it is Accordingly, 973 L.Ed.2d ju- circumstances, “some then those the sentencer that established well considering from prevented rors were considering from precluded cannot be se- call a less may for factors which v. South Skipper evidence. any such petitioner’s and 1669, penalty, 1, vere Carolina, 106 S.Ct. 476 U.S. 376, at 108 S.Ct. cannot stand.” (1986); Eddings, 455 1 90 L.Ed.2d omitted). (internal See citations 1860 114, 869. at U.S. Fulcomer, 923 Zettlemoyer v. irrelevant; also is preclusion of this source analogy by to claim distinguish Hackett's correctly to therefore, identi- state court that the Mills, proper despite its failure to conduct as Strickland principles announced fied the Morton, F.3d inquiry. Moore v. See respondent's analysis governing the those Cir.2001) 95, (3d (noting "[i]n that no merit Consequently, we find claim. 404-06, 362, Taylor, U.S. v. Williams that the state court's contention respondent’s (2000), the Su clearly 146 L.Ed.2d contrary es- S.Ct. our adjudication was to 'contrary ‘un to’ and Moreover, that preme Court held law.”). can Hackett tablished independent, application of' have court reasonable the state failed that show not meanings.”). need to rule, I see no overlapping if he is but that correct Mills apply the Banlcs, we "overlap” here. explore this application a correct under entitled to relief Pennsylvania Supreme Thus, the that although I would held Boyde. of Mills and application of fed an unreasonable Pennsyl- rendered majority that the ”[i]f the instructions, indistinguishable law on Hackett relief eral Supreme Court denied vania under analyze the claim opted not to the logically would have done Banks, at 271 F.3d "contrary to” test. Maj. Op. Boyde,” applying same ap same believe I ap- n. Because Supreme Court’s failure here, is little need there proach can be taken correctly precludes an inference ply Mills analysis contrary to separate engage in a relief under have denied it also would Moreover, majority Hackett's claim. Boyde standard. however, primarily may relief Hackett denies analysis, this case In the final survives the decision the state court's “contrаry to” overlap between fall Thus, standards, I too test. application application of” unreasonable "unreasonable standard. upon sought the unreasonableness focus assessed and given state court (1991) F.2d (discussing 306-07 guish the language of Frey Mills). from the instructions to Hackett’s jury. Frey, 132 F.3d 920-21. We observed in Frey that this instruc 370, 110 In Boyde California, “emphasize[d] tion importance of a (1990), S.Ct. 108 L.Ed.2d 316 as the unanimous finding, using phrase fre majority explains, Court clar quently and in close proximity to within ified that proper standard for assess seven words of the mitigating circum ing a Mills challenge is “whether there is a stances clause.” 132 F.3d 923 (quoting reasonable likelihood has ap the pertinent as “if language plied challenged in way instruction unanimously finds at least one aggravating prevents the consideration of constitu circumstance and no mitigating circum tionally relevant evidence.” Id. at 108 stance”). is, We noted that this “clause Thus, we made clear in mind, the ear and to the bite,” one sound Frey, “while our inquiry directed toward id., given the use “unanimously” whether the [ ] instruction suffers from the close proximity to “mitigating circum (i.e. type same of defect discussed in Mills stances,” that, we held when viewed in the the instruction could be read to re context of the entire charge, “it is quite quire a unanimous mitigating juror would, that possible regardless of circumstances), our standard is that of other qualifying language, believe that mit ” Boyde, not Mills. Frey, 132 F.3d at 921. igating circumstances had to be found Frey a pre-AEDPA was case in which unanimously.” Id. we found a upon Mills violation review of Banks, In a post-AEDPA case, we con- Pennsylvania jury instructions that mir- a “very fronted charge” similar to that rored, in pertinent respects, the in- in Frey it, too, issued that held ran structions issue Frey, here. Cf. Banks, afoul of Mills. (“The F.3d at 547-49. F.3d at 922 provides Crimes Code jury instructions to the pro- Banks the verdict must be a sentence of vided in relevant part as follows: “The jury if the unanimously death finds at least Crime Code in [sic] this Commonwealth aggravating circumstance and no miti- provides that the verdict must be a gating circumstances, sen- jury if the or unani- tence of jury death if mously unanimously finds one or more cir- aggravating finds at least one aggravating cumstances outweigh any circum- circumstances.”) circumstances, Hackett, stance no or (“The jury if the F.Supp.2d. at finds one or unanimously 400-01 more Crimes Code provides that a verdict circumstances which outweigh must be the sen- tence of jury death if the unanimously circumstance or circum- finds at least one stances.” Id. at majority 546-47. The circumstances, stance and no makes no attempt at a distinction between if the instructions, finds one or Banks and more Hackett and I aggravating circumstance no cases, [sic] which out- see basis for one: in both weigh any mitigating instructions, circumstances that viewed in their entirety, were determined.”). you may majority likely un- require unanimity understood to to derstandably attempt makes to no distin- a mitigating consider factor.18 only argument 18. The apply Commonwealth’s Banks “did not the correct evaluative regard this wrongly rather, is that inquiry Banks was decided Boyde, consistently but question, on the Mills as it improperly employed contends that possibility-based, Pennsylvania Supreme observed the state Banks concluded We same contained analysis there claim petitioner’s Court’s rejection court’s We Hackett’s case. analysis in application as its unreasonable flaw in an resulted Banks, at 545. We 271 F.3d follows: explained law. federal (as it court failed the state observed Hackett, Supreme Pennsylvania might here) how the analyze did distinguish attempted had and ver- instructions its interpreted have statute, Maryland based there was holding that merely slip, dict Maryland since the reasoning that tracked error because of miti- barred consideration statute Pa. Cons.Stat. language unless there evidence gating determina- 9711(c)(l)(iv). found this § We Penn- and the agreement unanimous conjunc- because tion insufficient unanimity as required sylvania statute reviewing requires a Boyde, tion with mitigating circum- of a to the absence charge and ask entire examine court to al- statute stance, Pennsylvania have con- could a reasonable whether prevent individual lowed to find unanimity required cluded compel not but sentences death 546. In Id. at circumstance. Hackett, F.Supp.2d See them. District in Banks the fact, quoted *19. The 2001 WL 884721 to ex- case reasoning in Hackett’s Court’s were in the statutes differences Pennsylvania plain enough render both cases Court in constitutional, the dan- since statute in ex- court’s task “misconstrue[d] misinterpretation ger focusing on for Mills error amining statutes, and the in both present rather than the statute meaning of had ex- Court Pennsylvania Supreme As jury of confusion. issue on the statute, jury possi- not the instructs, danger only the it is the amined Mills statutory confused jury had been bility the that the misinterpretation of a the v. scheme, Boyde than existence given. rather by the instructions the interpretation 370, 110 S.Ct. constitutional 494 U.S. California, courts, creates the (1990), the reh’g statute 1190, L.Ed.2d 316 108 problem.” Mills denied Price, established 109 L.Ed.2d (quoting Hackett at 544-45 Id. (E.D.Pa.2001)). must be considered jury 404 instructions F.Supp.2d proceed- the entire in context of Banks Moreover, discussing in when Pennsylvania and the ing, decision court’s why the reasons state contrary so failure to do was Court’s to an claim amounted reject the Mills Id. federal law. clearly established law, we of federal application unreasonable mitigating cir based, quired find existence evalua- single-juror standards and Frey, 132 Appel- unanimously....” rejected.” Boyde explicitly cumstances tion that that, Likewise, levels a in Commonwealth we held Banks lant’s Br. at 51. The at F.3d Frey. Appellant's whole, Br. at charge against jury similar as a "[c]onsidered However, 56-58, review of -62. close likeli is reasonable doubt ‘there leave no Frey Court did not that this and shows Banks challenged applied has hood that Boyde standard. The misapply the prevents way consider in instruction " Frey difference between in note careful constitutionally relevant evidence.' ation of held, accordance Boyde, we and Banks, Boyde, (quoting F.3d likely reasonably Boyde, that "it was 1190). 380, 110 U.S. at it was re- jury could have believed that Here, at 21. Su- The language of the slip is also preme essentially ignored best, Court has ambiguous, at as to the need for teachings Boyde engaged unanimity. preface jury’s to the find- reasoning regarding the same the con- “We, ing provides, jury, have found stitutionality of the instructions as ...,” following which - constitutionally Hackett itself defec- placed a check to reflect “at least one tive. aggravating circumstance mitigat- and no Banks, circumstance.” the corre- Banks, 271 F.3d at 545-46. sponding language identical, see Banks, F.3d and we held this II. language “at least confusing, and more likely suggestive, regarding the need for It against background is this that we unanimity as to circumstances.” our reach consideration of the instructions Moreover, the verdict slip slip employed and verdict in Hackett’s here, Banks, as in had “no additional lan- noted, majority not, case. As does guage imply that would there is a cannot, distinguish Frey and Banks on different standard for whether likely understood the stances than there is for cir- require unanimity instructions here to cumstances.” Id. “There is also consider evidence. no lan- Like those cases, guage anywhere earlier on the form Hackett court used the from which “unanimously” word proximity close to the could infer that a cir- circumstances,” “mitigating instructing the cumstance might marked if only jury that it must return death sentence juror had found that circumstance to ex- you unanimously “if ag- find at least one ist.” Id. gravating circumstance and no Boyde, Under the issue before us is circumstance.” As explained Frey, it reasonably likely whether is Hackett’s juror would, likely regardless “a of other jury interpreted its instructions and ver- qualifying language, mitigat- believe that dict slip to mean that it could find a miti- ing circumstances had to be found unani- gating ju- if all twelve

mously.” Frey, 132 F.3d at 923. The agreed upon rors its existence. This repeated Hackett trial court also the in- Court has twice resolved that issue fa- struction near charge, the end of its thus vor petitioner of the habeas with our hold- reinforcing twice jury the notion that the ings in Banks and Frey, and there is no unanimity. Maj. needed Op. See at 297. basis for a different outcome here. More- Moreover, as in Frey, Banks and nowhere over, analysis our in Banks calls for relief did explain the court or even hint that AEDPA, fully under unanimity explained why as we unnecessary was to a find miti- gating application I the state court’s flawed factor. note that this flaw in jury is seemingly clearly instructions is Mills remedied unreasonable estab- Pennsylvania’s instructions, current model lished federal law. See 271 F.3d 543- quoted margin.19 in the you regard particular each of is free to a mitigating present circumstance as de- voting general findings, you When on the spite regard particular jurors may are aggravating to what other believe. cir- present only you Suggested cumstance as all Jury Pa. Standard Criminal Instruc- hand, 15.2502H(2) (2000). present. it that On the other tions No. had consid- juror that each reflect should nevertheless, holds majority,

The mitigating evidence rejected all Hack- ered and because error no Mills can be there reflecting than individually rather mitigat- “no “unanimously” found ett’s ma- circumstance mitigating finding that no circumstance,” a there was ing one, one, only language of and agreement. mean common can jority believes miti- if not ambiguous, considered slip was likewise each verdict thing- that unanimity all other agreed with and as to a need suggestive, gating evidence slip circumstance mitigating The verdict no jurors that mitigating no error. im- resulting in that would language proven, no contained also however, court’s the trial reflects, were record mitigating ply that finding of on the instruction pertinent lone standard a different subject its directive evidence mitigating by only one found might mitigation “if unanimous- you sentence death return a juror. circum- one at least ly find then, to decide was left jury, Hackett’s mitigating circumstance.” no stance a find- reflecting the box check whether to to Hackett’s mean did

What circum- least ing “at “no “unanimously” find circumstance” stance its merely offers majority stance”? that it understanding its solely on based “plainly” instruction as to what view could find meant, fails analysis its but must have ju- all agreement the unanimous Court’s directive comply with far more it seems light, In this rors. to a single “a instruction Boyde certain, outright likely, if not isolation, but judged not be jury may to return a death required believed itself the over- context of must be viewed aggrava- unanimously found an if it 378, 110 Boyde, chargе.” all unanimously found ting circumstance Banks, F.3d at 1190; see also upon circumstance” ‍​​‌‌‌‌​​​‌‌‌​​‌​​​‌​​​‌​​​‌‌‌​‌‌‌‌​​​​‌​‌​​​‌​​‌‍“no Boyde “the standard (explaining Padova Judge As agree. could the instruction view requires that the court observed: in isolation totality, not examine in its specific question respect to the With Crimes that reference the few sentences clause requires of whether therefore, look, Code.”). We must rejection of all unanimous a facile than offer here rather full context clear, in the factors, simply it is instruction single interpretation given, it was whether in which context isolation. viewed in a death means that the instruction mitigat- noted, charge on the court’s As if the is warranted In- ambiguous. best evidence aggra- at least one finds that, found in Banks deed, expressly unanimously vating circumstance “[tjhere instructions, no is these based on mitigating circumstances that no finds that a understand a way that would (as contends), ifor [majority] the exist consid- could be mitigating sentence a death the means phrase Banks, 271 jurors.” than ered less all unanimously jury if the warranted added). The Hack- (emphasis at 548 F.3d circum- at least one finds that a not explain also did ett trial court no and finds stance circum- mitigating free to find juror was mitigating agreed upon jurors, views of other despite the stance the una- jury’s interpretation The suggesting no and it issued instruction rejection as to the nimity requirement mitigating circumstance” of “no finding mitigating de- would addition ignoring the context of pend jury case, on how the understood and majority, this the above, as noted employed concept unanimity. the observes in passing, jury jury jurors If the believed all Mills found no mitigating likewise circum- have agree would as to the exis- stance to imposed exist and a death sen- particular tence the same mitigat- tence reaching without weighing stage. circumstance, jury then the ing could 486 U.S. at 108 S.Ct. 1860. reach a death verdict if petitioner even individu- The argued jurors al believed mitigating factors court’s instructions and verdict slip served existed, long jurors so all did require “to imposition of a death sen- agree as to the existence of a jury tence unanimously found an particular mitigating aggravating circumstance, circumstance. but could not jury Such would meet require- unanimously as to the existence of ment the “no any particular mitigating circumstance.” prong stance” on the basis that all the Id. at 108 S.Ct. 1860. petitioner The jurors agreed, unanimously, that there thus claimed that “even if some or all of jurors was circumstance that were believe that some miti- commonly agreed upon by all gating circumstance or circumstances were jurors. twelve present, they unless could unanimously

agree on the existence of the mitigat- same factor, ing necessarily would ambiguity language of the be death.” Maryland Court of statute, sentencing the additional jury Appeals rejected claim, this in- concluding, instructions, and the form alia, ter that because the contribute to the it conclusion verdict slip expressly required unanimity reasonably likely be- acceptance rejection mitigat- of a lieved it must find mitigating circum- circumstance, ing jury’s finding likely stances unanimously before consider- (as here) majority reflected concludes them, ing and that it could reach a determination mitigat- unanimous that a verdict of death under the “no miti- exist, circumstance did not not a fail- gating prong circumstance” even if ure to find unanimously the existence of a or more believed that a circumstance. Id. at mitigating circumstance existed with- S.Ct. 1860. performing out weighing inquiry.

Hackett, 212 F.Supp.2d rejected 411-412. Mary- land court’s conclusion as to what

The District Court was correct that we likely understood its task to be. The must infer from the record that this Court distilled the question before it as acted in accordance with a belief that una- follows: nimity required find a

factor, and that its mitigat- “no If the understood the verdict ing circumstance” reflects that erroneous Appeals as the Court of form asserted majority’s belief. The have, alternative view is every should then time it untenable, assumes, merely as it with no marked “no” beside a cir- support, record jury that the applied its cumstance it indicated its unanimous instructions so as not to I violate Mills. conclusion pеtitioner that had not find assumption this a troubling upon proved basis relevant by prepon- the facts a which to affirm a sentence of evidence, death. derance of the and thus the safely we can unanimity, but dence absent judgment. the upheld properly

court likeli- is a reasonable jury under- that there hand, if the conclude the other On that it task in when its jury interpreted mark “no” the it should hood stood that sentence, that this death manner, and to that failed existed, then circumstance Mills. mitigating therefore, cannot stand con- from prevented jurors were some support find attempt majority’s The for a may call sidering “factors sentenc- different in the for its conclusion Ohio, Lockett penalty,” less severe co-de- for Hackett’s reached ing verdicts 2954, and S.Ct. at U.S. acted jury The rings hollow. fendants cannot stand. petitioner’s in its consider- the same instructions upon Mills, at as to sentencing evidence the ation of omitted). conceded The Court (footnote jury sentenced The four defendants. inter Appeals’ Maryland Court the finding after to death (Spence) defendant but “plausible,” record was of the pretation mitigation, outweighed aggravation the instructions found, reviewing after slip, verdict its instructions given but language of the and the a whole find- likely unanimous reached the reject petitioner’s it could slip, (in as to ing certain degree of “with interpretation Mills) thereby reached violation Court 377, 108 S.Ct. 1860. at ty.” Id. nothing to This does weighing stage. ju because the sentence vacated thus as to error showing of a Mills diminish they were thought may have “well rors said for can same evi Hackett. considering mitigating from precluded Barrett) who (Gray and in the jurors agreed two co-defendants unless all dence its instruc- given circum such life sentences particular received of a existence 384, 108 unanimous tions, likely was either S.Ct. stance.” that the Commonwealth agreement in its of the instructions language While an prove failed to than those form took a different Mills miti- stance, particular unanimous as 378-80, here, U.S. see 486 issue those and found jury’s gating circumstances effect of practical outweighed the is the in each case mitigation noof circumstances, thereby result- here As same. considering sen- jury from different sentences. The likely prevented ing in life unanimity, ma- nothing evidence absent do bolster tences thus mitigat- found juries no cases the was no Mills that there both jority’s speculation colleagues, my Unlike factor to exist. error. refused however, that Hackett’s added It should be mitigation finding of no infer from the evi- not without substantial a unanimous have reached jury must to consider. dence failed to petitioner conclusion that eight cate- specifies penalty statute death preponder- the relevant facts prove evidence, and Hackett gories of an inference Such of the ance evidence. those cate- under five of mitigation argued after a consid- not be could drawn significant has defendant gories: “[t]he instruc- of the context eration convictions”; criminal prior history of is true and the same slip, and verdict tions influence under the defendant “[t]he course, verify whether we cannot here. Of distur- or emotional mental of extreme pre- itself jury in fact believed Hackett’s bance”; of the defendant capacity “[t]he evi- considering mitigating from cluded appreciate criminality functions, his conduct he in limited understanding so- to conform his conduct to requirements cial relationships. There was significant substantially impaired”; of law was degree of psychopathology “[t]he when I saw age him, of the defendant at the time of the with a lot of negative morbid and crime”; “[a]ny and other evidence of miti- thought processes.” Id. at 54. gation concerning the character and record Doctor Levitt also described the results of the defendant and the circumstances of of the standardized Multiphas- Minnesota

his offense.” Pa. Cons.Stat. ing Inventory, a computer-graded true/ 9711(e)(l)-(4) (8). § and false test. He explained the results as indicating, twenty years among things:

Hackett was other old at the “[limited interpersonal resources”; time of the He prior “[h]igh offense. had one clinical depression, Montgomery County age depres- conviction means that his sion has conspiracy pathological limits”; nineteen for and four reached counts of “[pjrojective burglary, for which of blame hostility”; he was sentenced to and “[p]aranoid features”; concurrent terms of ten and one-half to for delu- “[l]ook[s] twenty-three persecution maltreatment”; sions of imprisonment. months and His mother, Hackett, “[m]ay disorder[, have a thought Bonnie testified that her which] would be grade schizophrenia”; son twice failed the first and “[hyperac- and suf- agitated.” tive and learning problems fered from severe Id. at 55-56. Doctor Levitt found attending special resulted his school these results consistent with his own throughout childhood for that “the learning impres- and clinical emotionally sion was disabled. She further schizoaffective disorder and ma- testi- fied, jor reflected, depression.” documentary and evidence Id. at 56. He opined that Hackett “is an diagnosed emotionally that Hackett was percep- disturbed individual, especially problems functioning tion and as when he has to at a “low inter- situations,” act in social average” or “dull normal” and range of intelli- “he has gence socially, based interact he separate IQ get full-scale tends to anx- ious, develops scores of 80 and 85. confused and She testified that her kinds of began distorted son to abuse alcohol around ideations.” Id. at 57. Doctor age “[ajlcohol Levitt eighteen. Ann Marie added that would Clay, long-time have a friend, significant neighbor family effect” on Hackett also testified to because perceptions reality good “[h]is Hackett’s are not childhood difficulties. place, the first and alcohol would cause all Levitt, psychologist, Doctor Albert tes- things these to become more distorted.” tified as to the results of various tests he Id. at 59. performed on Hackett before trial. He The likelihood that Hackett’s mis- explained the results showing “very as re- task, resulting understood its did gressed, perception reality immature inability jurors of individual situations, consid- sign immaturity which is a mitigation er the evidence in possibly and possibly App. illness.” Hack- sentence, impose a lesser poses precisely ett displayed maturity, also a low-level of type of Eighth problem Amendment signs depression, problems, suicidal an that the Mills rule I seeks to eliminate. immature view of social relationships, anxi- again Judge thoughtful refer to Padova’s ety, “psychosexual difficulties.” Id. at analysis: 51-52. Doctor Levitt concluded that Consider,

Hackett “was limited in terms of coping example, following mechanisms, way limited in terms of the scenario. All twelve commonly agreed upon there are exists. factor aggravating particular

a on their Based age mitigating that is factors. conclude jurors Two of the conclude, case; jurors how- thus findings, in the factor mitigating a miti- jurors do are no unanimously, ten that there ever, the other jurors unanimously believe None that were gating factors agree. ex- mitigating factors any jurors. other all the agreed upon not unanimous jury is ist, and so a verdict jury therefore delivers individual of the the existence as to ag- weighing without ever death Believing that una- factor. mitigating against circumstance gravating find in order to nimity required mitigating factors. exists, ju- factor mitigating that a Hackett, 411-12. F.Supp.2d factor, aggravating “find” one rors correctly notes that majority Finally, the commonly agreed to find and fail to its ver- changes Pennsylvania adopted Rather than factors. mitigating upon trial, Hackett’s see subsequent to slip dict weighing prong moving on to majority n. but Maj. Op. cir- if the determining changes per- to believe that these seems mitigating outweighs the cumstance only and that “no “weighing tain to cases” factor, findings and jury uses its strengthen the change was made to similar of death on ba- a verdict renders of no miti- jury’s finding a directive unanimously agreed sis must be unanimous.” circumstance gating ag- of “at least one to the existence Pennsylvania’s model changes to Id. The and that the circumstance” gravating otherwise. suggest unanimously agreed that there circumstance” mitigating was “no instructions, adopted present model all commonly agreed upоn by trial, pertinent provide Hackett’s after Notwithstanding the jurors. twelve to how a Penn- regard with part as follows jurors of the believed fact that two capital its sen- sylvania jury should reach existed, factor be- mitigating that a on the tencing findings record them interpre- jury’s erroneous cause slip: respect tation of the instructions sentencing ver- given You have been unanimity, the requirement of to the your ver- slip on to record dict a sentence of death. result would give I now shall findings. dict and possi- scenario creates This even go on how to you further directions verdict under the “no bility of a death verdict, making reaching find- about prong circumstance” where mitigating slip. ings, using the verdict jurors mitigating all twelve believe exist, agree- there is no factor to but earlier, and as the ver- you I told As factor. For particular

ment as to the indicates, you agree must slip dict age jurors two could believe example, general of two on one factor and the other is a you can sentence the findings before the defen- jurors ten believe could They a find- are defendant death. significant lack of criminal his- dant’s aggrava- ing that there is at least one factor. All twelve tory is a ting and no thus believe that there or a exists, they do not factor because but are one more particular same outweigh any mitigating factor, stances which they conclude (In Hackett’s, deciding whether like that the would inter- pret its mandate outweigh requiring as a death sen- only tence if it circumstances, unanimously agreed that mitigating do hot sim- there was no circumstance of ply Compare count their number. agreement. common The new instructions importance ag- seriousness and of the would leave a unanimous finding of “no gravating with the circum- likely circumstance” more to re- stances.) you agree If on either flect that actually each considered general findings one of the two then rejected and all mitigating evidence. No- you can and must sentence the defen- tably, Cross, in Commonwealth v. 555 Pa. dant to death. (Pa.1999), 726 A.2d 333 two concur- voting general on the findings, When ring Justices of the you regard particular are to aggra- opined instruction in vating present circumstance as Frey, which mirrors the Banks and Hack- you all that it present. is On instruction, ett degree “contains a of im- hand, you the other each of is free to precision that can be avoided merely by regard particular mitigating circum- employing Pennsylvania Suggested Stan- present despite stance as other what dard Jury Criminal Instruction (This jurors may believe. different 15.2502H(3) 15.2502H(2) [currently ], of aggravating mitigat- treatment which removes concerning doubt ing circumstances is one of the law’s juror’s role in assessing mitigating circum- safeguards unjust against death sen- stances.” Id. at 338-39. These Justices It gives tences. a defendant the full they noted that affirmatively “would re- any mitigating benefit of circum- quire Pennsylvania trial courts to instruct ....) stances capital sentencing juries in accordance Suggested Jury Pa. STANDARDCriminal In- with standard instruction.” 15.2502F(7) Nos. & structions Pennsylvania’s well-intended effort 15.2502H(l)-(2) (2000). The Committee clarify its sentencing procedure does not in Note to instruction 15.2502H explains that itself indicate that its former instructions portion above-quoted the final lan- slip constitutionally were in- guage jurors is intended to “tell the that Nevertheless, firm. the above-noted revi- they are to make collective decisions about sions, as expressed by well as the views the aggravating circumstances but concurring Pennsylvania Justices they ultimately are to make individual de- Cross, support lend to the conclusion cisions about circumstances.” an unanimity merely instruction on This addition to the model instructions language tracks the of 42 Pa. Cons.Stat. coupled longer with the decision no to use 9711(c)(l)(iv) subject § imprecise is “unanimously” the word proximity close impermissible an risk of jury misinterpre- “mitigating plainly circumstances” seeks unanimity tation on whether is required to previous ambiguity eliminate the as to Moreover, consider mitigating evidence. whether all had to agree on a miti- these support revisions further the view gating factor. The new model instructions clarity there was insufficient you state that “each of regard is free to slip instructions and verdict at Hackett’s particular mitigating permit trial to uphold this Court to his present despite jurors may what other be- ground sentence of death on the sole language lieve” that should reduce the found “no risk, present least, even in a “non-weighing very my case” stance.” At the colleagues Rights; Na- for Constitutional in Center find themselves should majority

in the to Protect Political Coalition tional following observation agreement Freedom; National Association from Mills: Lawyers; National Defense Criminal power to exercise The decision Ap- Lawyers Guild, Supporting Amici a defendant execute the State pellant. citizens and decision any other unlike No. 03-4253. upon are called public officials of societal Evolving standards make. Appeals, Court of United States correspond- imposed a decency have Circuit. Fourth reliability requirement ingly high 2, 2004. Argued: Aug. that death is the the determination particular in a penalty appropriate Sept. Decided: [Haekettj’s possibility case. improperly its task

jury conducted require

certainly great enough

resentencing. 383-84, 108 S.Ct. 1860.

III. reasons, I conclude that Hack-

For these error, a Mills has established

ett this claim rejection court’s

the state application in an unreasonable

resulted I law. there-

clearly established federal or- ‍​​‌‌‌‌​​​‌‌‌​​‌​​​‌​​​‌​​​‌‌‌​‌‌‌‌​​​​‌​‌​​​‌​​‌‍would affirm the District Court’s

fore and allow vacating Hackett’s sentence

der him to life im-

Pennsylvania to resentence capital sen- or conduct a new

prisonment

tencing proceeding. America, STATES of

UNITED Appellee,

Plaintiff — HAMMOUD,

Mohamad Youssef a/k/a Abousaleh, Albousaleh, Ali

Ali a/k/a Appellant,

Defendant — notes of an frequency occurrence "relative general- probable See than not. is more come occur- the between its event ratio based ly supra Part III.A.3. average cases total number of rence the jury language words, delivered to the and the efforts. other opaque the na- whole, Frey, the verdict form as a 132 F.3d jury’s ture of the process deliberative lim- 924; Zettlemoyer, 923 F.2d at n. 308-09 its our primarily review to the trial court’s I, jury’s and not the result. Banks 271 instructions and the verdict form to deter- (quoting Frey, F.3d at 547 132 F.3d at mine reasonably whether it is likely the 923). The reason that we need deter jury understood the charge require una- jurors mine the actually whether misun nimity finding mitigating evidence ex- derstood the trial court’s instructions and ists. that, instances, verdict form in many is it different, But this case is jury’s for the Mills, quite would be difficult to do so. Cf. verdict form unequivocally demonstrates 381, 108 486 U.S. at S.Ct. 1860. that there is no reasonable likelihood that completed forms in jurors applied challenged instruc- Zettlemoyеr, Frey, and Banks indicate way tion in a that prevented the consider- jury that the in each case imposed a death ation of constitutionally relevant evidence. finding unanimously sentence after jury Hackett’s “found unanimously at least aggravating circumstances outweighed aggravating one circumstance and no miti- mitigating Zettlemoy circumstances. added). gating (emphasis circumstance” er, (“We jury 923 F.2d have We do not conclude there was a Mills- ... unanimously aggravating found here, Boyde juror violation as no found outweighs mitigating [the] any there was mitigating circumstances.”); Frey, Commonwealth v. stance. (‘We jury A.2d at 31 n. have This logically result unavoidable. unanimously found ... ag or more [o]ne jury unanimously When found gravating circumstances which outweigh circumstance, mitigating there was no I, any circumstances.”); mitigating Banks left no room to speculate perhaps (“We F.3d at 549-50 have juror was confused unanimity about re found ... ag [o]ne more quirements precluded and therefore from gravating outweigh circumstances which considering all, mitigating evidence. After any mitigating circumstance or circum single juror if even a stances.”). thought that there cases, In all three circumstance, mitigating then that found at least some evidence. join could not a verdict in which know, however, What we cannot is the unanimously” “found that there was precise extent to which the properly “no circumstance.” considered the evidence of cir of no weighing cumstances when circumstance —versus evidence against when a circumstance was out uncertainty weighed by aggravating Some measure of is unavoid circumstances— able when weighs mitigating distinguishes cir Hackett’s case from Zettle Banks, against moyer, cumstances circum Frey, and all of which were stances but reveals “weighing” result its cases.14 Zettlemoyer Frey, (same). Frey, As in we acknowl- 132 F.3d at As noted edge Supreme that the Court in Mills noted Court: Maryland Appeals, Court of subse- Although we are hesitant to infer too much quent sentencing, promul- to the defendant's prior about the verdict form from the Court gated findings sentencing a new Appeals' form. well-meant efforts to remove Zettlemoyer, (citing ambiguity capital 923 F.2d at 308 n. 22 from the State's sentenc- 381-83, 1860); scheme, noticing U.S. avoid cannot these

Case Details

Case Name: Hackett v. Price

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 26, 2004

Citation: 381 F.3d 281

Docket Number: 01-9008

Court Abbreviation: 3rd Cir.