Jacobs v. Horn

might ... сonfi- CONCLUSION “compromise Amendment or law enforcement tech- dential sources reasons, foregoing For the order of (daily Cong. Rec. H7793 niques.” See the district court Affirmed. 1997) (statement 24, Rep. of Sept.

ed. Rivers). short, nothing in the

Lynn suggests of the statute

words power order the govern-

court has the materials, either produce ment JACOBS, Appellant Daniel court, parte or to the ex and in defendant v. camera. HORN, Commissioner, Pennsyl Martin Corrections; possi Department The district court entertained the vania of Blaine, Jr., Superintendent Conner of bility, deciding, that order of without Institution, Correctional State might appropriate where the disclosure be County; Joseph P. Mazur Greene moving party had sufficient established kiewicz, Superintendent the State of liability. of of threshold likelihood at Rockview. Correctional Institution ruled, however, had that Schneider No. 01-9000. entitlement, having made no such no sub showing. stantial need decide We Appeals, United Court of States whether, upon sufficient threshold show Third Circuit. may ing, production a court order the Argued June government materials either defen 20, 2005. Jan. dant, parte or to the court for ex and in Schneider, inspection. lacking camera evi gov that even a likelihood

dence raised liability, to make hoped

ernment his case government requiring disclose its

confidential materials to court. We circumstances,

are confident in such Hyde not compel Amendment does production.

such The district court was very least within its discretion in refus

ing to order disclosure. See United States (9th

v. Lindberg, F.3d Cir.

2000) (applying of discretion abuse stan to district

dard court determination under and in

Hyde parte Amendment ex camera provision);

review United States Trues (5th Cir.2000)

dale, 211 F.3d 906-07

(same); Indep. Order Foresters v. Don

ald, Jenrette, Inc., & 157 F.3d Lufkin Cir.1998) (2d (reviewing discovery rul discretion).

ings for abuse For these

reasons, we affirm the district court’s re production prosecu

fusal to order

tors’ memorandum. Eshbach,

Jonelle H. (Argued), Office of Attorney of Pennsylvania, General Harris- burg, Appellees. SCIRICA,

Before Judge, Chief McKEE FUENTES, Judges. Circuit SCIRICA, Judge, Chief concurring in part and dissenting part.

OPINION OF THE COURT FUENTES, Judge. Circuit Pennsylvania inmate Daniel Jacobs was sentenced'to death for murdering girl- Támmy Mock and to life in prison friend. for murdering their baby Holly Jacobs. review, On federal habeas the District Court concluded that rendered ineffective during assistance penalty phase for failing to investigate and present mitigating evidence concerning Ja- cognitive cobs’ and emotional impairments and his family childhood and background. The District Court conditionally granted a writ of corpus habeas to allow the Com- monwealth to resentence Jacobs. The rejected District Court each of Jacobs’ re- maining challenges to his convictions and sentences. appeals

Jacobs now from the District Court’s denial of federal habeas relief on several of his claims challenging his convic- tions.1 reasons, following

For the we will re- verse the District Court’s denial of habeas corpus relief on claim Jacobs’ counsel rendered ineffective assistance during guilt phase by failing to ade- quately investigate, prepare, and mental evidence in support health of his Lev, Stuart B. (Argued), Matthew C. capacity diminished defense. We will af- Lawry, Defender Association of Philadel- firm the District Court’s denial of habeas phia, Capital Unit, Federal Habeas Corpus corpus relief on each of remaining Jacobs’ Philadelphia, for Appellant. claims. appeal The Commonwealth corpus does not from relief on Jacobs’ claim of ineffective grant the District Court's decision to habeas penalty phase. assistance of counsel at the in sight Holly dead losing control at

1. BACKGROUND pas- a heat of presented He bathtub. girlfriend Tammy Jacobs and his Daniel defense, ie., sion and diminished York, apartment in an in Penn- Mock lived forming a incapable specific that he was sylvania, with their seven-month-old given kill his mental state intent to her February In daughter Holly Jacobs. killing. the time of the Delois testified call telephone York from police received telephone in calls admitted his Jacobs mother, Jacobs, Virginia, in Delоis Tammy, killed but that she could identity asked them who under fictitious also admitted remember whether he Holly. and This tele- Tammy to check on Holly. that he killed The Commonwealth police prompted the to check phone call presented pretrial Delois’ statements they Tammy found apartment, where Tammy killing both Jacobs admitted Holly Tammy and dead in the bathtub. Holly. and more 200 times. had been stabbed than drowning no Holly died from and had stab guilty found Jacobs of murder police trauma. The wounds evidence of and degree Tammy the first both Delois, gave down who a state- tracked to death for Holly. Jacobs was sentenced ment that Jacobs had admitted tele- murdering Tammy prison and life for phone conversations that he had killed murdering Holly. appeal, the On direct Holly. also both Delois testi- Pennsylvania Supreme Court affirmed the preliminary hearing fied at a that Jacobs judgments sentence. Commonwealth killing Tammy Holly. admitted (1994) Jacobs, 536 Pa. 639 A.2d 786 (“Jacobs I”). pursued state collat trial, preparation consult- Pennsylvania’s eral relief Post under Con Davis, psychiatrist ed with Dr. Robert (“PCRA”). The viction Relief Act PCRA practice. with a clinical and forensic Dr. hearings and denied all conducted Davis a mental evalua- conducted health relief in an oral decision rendered June tion criminal regarding of Jacobs re- Pennsylvania Supreme 1997. The sponsibility competency to stand trial. Jacobs, Commonwealth v. affirmed. Counsel did not inform Dr. Davis that (“Jacobs II”). (1999) Pa. 727 A.2d 545 subject penalty, Jacobs was death him provide and did not materials with then the Jacobs filed current habeas cor- concerning background Jacobs’ or the Court, in in pus the District which petition background of Dr. the offenses. Davis he fifteen for presented claims relief.2 orally reported to counsel that he found no cоnducting evidentiary Without hear- major evidence of a illness. At mental ing, granted the District Court habeas re- request, Dr. not pre- counsel’s Davis did lief claim of ineffective as Jacobs’ assis- pare report. a written during penalty phase tance of counsel the failing investigate for miti- and was in

Jacobs tried before a County gating concerning cogni- Jacobs’ York Court of Common for Pleas impairments, tive and degree Tammy murders and emotional and evi- first trial, Holly. that he from killing At Hol- dence suffers the effects of Jacobs denied ly. Tammy Holly neglectful testified that killed traumatic and childhood. He Ja- Horn, and F.Supp.2d that he stabbed to death after v. 405-08 cobs opinion lenges only 2. The District Court’s Court's enumerates District denial four presented corpus claims Jacobs in his habeas appeal, of those in this as set claims forth Horn, petition. F.Supp.2d v. See Jacobs fully infra. (M.D.Pa.2001). 396-97 Jacobs chal- (M.D.Pa.2001) (“Jacobs III”). According II. AND JURISDICTION STANDARDS Court, if inves- OF REVIEW to the District counsel had childhood, background and tigated Jacobs’ jurisdiction Our is based on 28 following he would have discovered the §§ 1291 and U.S.C. 2253. The District mother heavi- facts. Jacobs’ Delois drank jurisdiction Court had pursuant to 28 ly pregnant while she was with Jacobs. §§ 2241 U.S.C. and 2254. Because the severely her in His alcoholic father beat District Court ruled on Jacobs’ habeas cor presence of their children. After De- pus petition conducting without an eviden lois left father when was Jacobs tiary hearing, our of the review District very was in relation- young, she involved Court’s decision is See plenary. Marshall ships heavily with men who drank several (3d Hendricks, Cir.2002). 307 F.3d her, abused as well as Jacobs. Jacobs’ and apply We same standards as the constantly older beat him and brother also Court, by District as mandated the Anti- one stabbed him on occasion. he When Penalty terrorism Effective Death Act old, years was about suffered six Jacobs (“AEDPA”): of 1996 brain to a car As a damage due accident. application An a writ habeas young like a teenager, Jacobs often acted on behalf of corpus person custody required child and mother’s assistance pursuant judgment of a State visited getting dressed. Relatives who granted court shall not be with respect sitting the home sometimes found Jacobs claim any adjudicated that was on the undressed, dirty, unkempt. at home proceedings merits State court unless boyfriends, One of she Delois’ with whom adjudication of the claim— years, was involved for about ten would fly become intoxicated with then (1) resulted in a decision rage grew into a and beat him. As Jacobs to, contrary or an unreason- involved older, attempted to assist his mother of, clearly application able established working but was unable to find and main- law, Federal as determined employment. tain States; Supreme Court the United Based on counsel’s failure to discover (2) resulted in a decision that was present mitigating at the evidence3 on an based unreasonable determina- penalty phase, District condi- light tion facts in of the evi- tionally granted corpus the writ of habeas presented dence in State court to allow the Commonwealth to resentence proceeding. murdering Tammy. Jacobs for at 423. Id. The District Court found each of Jacobs’ Marshall, 2254(d); § 28 U.S.C. 307 F.3d remaining challenges to his ei- convictions pre- at 50. A federal habeas must court ther in merit lacking procedurally or a findings sume that state court’s of fact barred from federal habeas review. Ja- 2254(e)(1). § are correct. See 28 U.S.C. timely cobs appealed. The District Court petitioner The ‍‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​​‌​‌‌​​‌‌​‌​‌​‍bears the of rebut- burden issued a of appealability certificate and ting presumption by of correctness stayed pending appeal. convincing its order Id. clear and evidence. III, 3. impairments. Court also District relied on mental al See Jacobs 129 demonstrating health evidence that Jacobs F.Supp.2d at 402-03. We discuss this evi- retardation, organic suffers from mild mental dence detail infra. damage, brain and other mental and emotion- 100 AEDPA, contrary courts Id. Prior to federal habeas

A state court decision is pure legal under a novo review over precedent to conducted de Supreme 2254(d)(1) § the state court reached mixed of law and questions questions where and “ (3d Horn, 203, opposite ‘conclusion to reached Appel a 250 F.3d 210 fact. v. question Cir.2001). a of law circumstances, Court on Supreme] [the In such a differ or if court decides case the state are court’s factual determinations state on a ently Court has Supreme] than correct, [the to be presumed rebuttable still ” materially indistinguishable facts.’ set of convincing of and upon showing clear Marshall, (quoting 807 F.3d at 51 2254(e)(1). § Id. evidence under 413, Taylor, v. 529 U.S. Williams (2000)). A 146 L.Ed.2d 389 III. DISCUSSION ap decision is an unreasonable state court appeal, challenges Dis- On 2254(d)(1) § court plication under if the corpus of trict Court’s denial habeas relief legal rule governing “identifies the correct following claims:4 on un Supreme

from the Court’s cases but (1) Trial counsel ineffective for fail- reasonably applies it to the facts of investigate, ing adequately pre- or either particular case if the state court pare, present mental health evi- unreasonably legal principle extends support of the diminished dence to a Supreme precedent from the Court’s charges defense to the where or apply new context it should not first degree murder. unreasonably рrinci to extend that refuses (2) Appellant’s rights constitutional apply.” it ple a new context where should due the effective assis- process v. Snyder, ttis F.3d Ga tance of counsel were violated where (3d Cir.2002) Williams, (citing 529 U.S. properly court in- 1495). the trial failed 407, 120 S.Ct. The unreasonable Pennsylvania’s struct objective application test is an one—a fed rule, corpus delicti trial counsel may relief grant eral court habeas object request appro- or merely it failed because concludes that the state instruction, priate and where the erroneously federal law applied Smith, Commonwealth’s evidence was insuf- incorrectly. Wiggins v. 539 U.S. 510, 520-21, ficient, law, under 123 S.Ct. 156 L.Ed.2d Gattis, (2003); Holly prove F.3d at Jacobs was killed by criminal means. AEDPA’s deferential standards (3) Appellant was right denied of review do not it is clear apply “unless effective assistance counsel as from the face the state court decision in- result of trial counsel’s failure to petitioner’s the merits constitu vestigate light tional claims were examined Mr. mother had a histo- long Supreme federal law as established ry of alcoholism and was intoxicated Court of the United States.” Everett purported when the admissions were (3d Cir.2002). Beard, In 290 F.3d made. the AEDPA of re cases where standards (4) apply, view courts Trial counsel ineffective for fail- do federal habeas apply ing inquire concerning racial pre-AEDPA standards of review. to bias 2253(c)(3). § pursue 4. The of Jacobs elected District Court issued certificate has to appealability authorizing pursue Jacobs to only appeal. four of them on specific appeal. U.S.C. seven issues on See 28 deficits, among jury, members of the where health including mild mental re- tardation, organic venire was white and the brain damage, entire and schiz- disorder, persоnality involved the of a oid case murder white and was a child teenager abuse, witness and victim of neglect, female and her child and ¶¶ 3-5). drug and alcohol abuse. boyfriend. African-American Ac- {Id. cording Kessel, to Dr. the combination of Appellant’s Opening Br. ii-iv. We ad- these impairments substantially hindered separately. dress each claim mental, emotional, Jacobs’ and cognitive A. Ineffective Assistance of Counsel ¶ 5). capacities. In Dr. Kessel’s opin- {Id. During the Guilt Phase for Fail- ion, crimes, at the time of the Jacobs’ ing Investigate to and Discover capacity to appreciate criminality of his Mental Health Evidence conduct and conform 'to his conduct to the begin with claim We Jacobs’ requirements of the law was substantially ¶ trial counsel rendered ineffective as 12). impaired. impairments {Id. His during guilt sistance phase failing also substantially diminished his capacity investigate and mental health specific formulate the intent kill. {Id. ¶ purpose supporting 14). for of his Dr. Kessel concluded Jacobs capacity diminished defense.5 Jacobs tes “did hot in fact have the specific intent to ¶ day 14). tified that on the of the killings, he kill Ms. {Id. Mock.” Tammy argued, and and cut fought, each Dr. Fleming, Patricia a licensed clinical According Jacobs, other. after fighting psychologist neuropsychologist, and also Tammy, helped with into her the bath evaluated reported Jacobs and that he “is tub, bathroom, brought baby into the seriously psychologically, emotionally and then left the bathroom. When he re cognitively impaired.” (Fleming Affidavit later, turned to the bathroom a short time ¶ 4). conducting After a number psy- baby bathtub, he saw the dead in the lost chological neuropsychological tests, and control, Tammy repeatedly. and stabbed reported Dr. Fleming that Jacobs suffers testimony, Based on Jаcobs’ defense coun retardation, from mild mental brain dam- presented sel a heat passion and dimin age, cognitive and and impair- emotional defense, ished capacity asserting that Ja ¶¶ 13). ments. {Id. At the time of the specific cobs lacked the intent to kill offenses, stated, Fleming Dr. Jacobs’ dis- Tammy Mock.6 “substantially impaired turbances ca- [his] In preparation pacity PCRA appeal, appreciate consequences Kessel, Dr. Julie licensed and his certified conduct or conform his conduct to ¶ 13). psychiatrist requirements familiar with forensic mental {Id. law.” issues, health psychi- particular, retardation, conducted a forensic In his “mental (Kessel atric damage evaluation Jacobs. Affida- brain and other health mental ¶¶ 1-2). cognitive vit Dr. Kessel reported impairments significantly Ja- dimin- from a cobs suffers of mental capacity premeditate ish[ed] number by presenting 6. Pennsylvania, capacity Jacobs exhausted this claim it the diminished general requires defense petition appeal. defendant to admit in his PCRA PCRA on culpability. Legg, See Commonwealth Pennsylvania Supreme rejected (1998). Pa. 711 A.2d Because II, this claim the merits. See Jacobs killing Holly, the diminished denied apply A.2d at 548-49. Therefore we the AED- as defense was unavailable PA standard review to this claim. baby’s See v. John- murder. Commonwealth son, 563, 283, (2002). 572 Pa. 815 A.2d 578 102 Williams, ¶ 14). 2052; (Id. 687, 104 S.Ct. see Mil.” Id. intent to specific

form 390-91, 120 529 U.S. at S.Ct. “sup- that the Fleming concluded facts Dr. not that did

port [Jacobs] the conclusion prong, first Ja Under Strickland’s in- the capacity specific to form have the performance must that cobs show counsel’s (Id.). tent to Mil.” The proper deficient. standard was attorney that of “reason performance is previously, counsel As trial described must ably effective assistance”'—Jacobs passion and pursuеd a heat diminished fell representation that trial counsel’s show to the murder of capacity defense objective standard reasonable below consultation with Beyond Mock. oral considering all the ness circumstances. however, fur- Davis, counsel took no Dr. 687-88, Strickland, 466 U.S. at 104 S.Ct. ther to discover evidence of Jacobs’ steps 2052. Counsel’s reasonableness must be retardation, or other damage, brain mental the of the particular assessed on facts un- impairments. Trial counsel was thus case, as of time of counsel’s viewed capaci- support to Jacobs’ diminished able 689, In conduct. Id. at 104 S.Ct. 2052. estab- ty psychiatric with evidence defense context of ineffective assistance based lishing any from mental that suffered failure investigate, on counsel’s prevented him from for- which disorders determine whether counsel ex court must specific Appar- intent to kill. mulating the professional judg ercised “reasonable ently only passion of heat of evidence 522-23, Wiggins, ment.” 539 123 U.S. capacity presented at or diminished S.Ct. 2527. phase testimony own that guilt was Jacobs’ Pennsylvania, asserting a Tammy repeatedly, when he “lost it” and stabbed defense, diminished capacity “a baby their in the defendant upon seeing drowned attempts negate specific that the element Jacobs claims trial counsel’s bathtub. and, successful, degree if discover, intent Mil first investigate, failure to degree mur murder reduced to third is evidence constitutes ineffec- mental health McCullum, 558 der.” Commonwealth v. violation the Sixth tive assistance 590, (1999). 1007, Ac Pa. A.2d 1009 738 Amendment. cording Pennsylvania Supreme Amendment of ineffec claims Sixth “[djiminished Court, an ex capacity is governed are tive assistance counsel tremely defense, requires limited which ex v. two-prong the familiar test of Strickland establishing psychiatric testimоny tensive 2052, 668, 466 104 Washington, U.S. one more a defendant suffered from (1984): 80 L.Ed.2d prevented which him mental disorders formulating specific from intent First, must the defendant show Cuevas, Pa. kill.” Commonwealth v. performance counsel’s deficient. (2003) (citing 832 A.2d Com made requires showing This counsel Zettlemoyer, 500 Pa. monwealth errors so serious that counsel was (1982)). A.2d as functioning guaranteed the “counsel” question specific posed defendant the Sixth Amendment. here Second, pro- must the defendant show whether counsel exercised reasonable failing investigate performance prejudiced judgment the deficient fessional This further discover mental retar- requires showing defense. dation, damage, impair- other counsel’s errors were so serious as brain trial, deprive support of a a ments as diminish- defendant fair credit, result is reliable. ed defense. To his whose professional did ask Dr. Davis to evaluate Jacobs. ercise reasonable judgment in (Davis ¶2). not, Affidavit Counsel did failing investigate further and discover however, inform Dr. Davis that the Com- retardation, evidence of Jacobs’ mental seeking penalty, monwealth was death brain damage, and other impairments that provide any nor did he Davis with back- could have him prevented from forming ground concerning information the crimes specific intent to kill Mock. ¶¶ (Id. 3). history. or Jacobs’ Accord- The District Court was persuaded that Davis, ing to Dr. if had that he known this performance counsel’s was not deficient case, capital was a he would have automat- regard. III, this See ically requested for brain testing damage F.Supp.2d at 412-13. The District Court readily or impairments other that are not on relied two cases from other that circuits (Id. apparent from standard evaluation. the District Court interpreted as holding ¶ 6). Dr. reported orally Davis counsel required counsеl is not investigate any that he did not find evidence of a further a psychiatric unless evaluator indi- ¶ (Id. 4). major Upon mental illness. re- cates further information is needed. Id. ceipt report, this counsel chose not to these, ofOne on which the Commonwealth further, investigate although presented he heavily, Calderon, relies is Hendricks v. the diminished defense at trial. (9th Cir.1995). F.3d 1032 question any Counsel did not of Jacobs’ or family regarding members friends his Hendricks, In psychia- hired a childhood, background, or mental health trist who with met the defendant for about history, any or obtain medical records four and one-half hours and found no evi- mental demonstrating deficiencies. dence to a “mental Id. support defense.” At the time counsel decided not inves- psychiatrist at 1037. posited psy- further, tigate or knew should have chological testing might be sug- useful and known from Jacobs’ behavior and from his gested that counsel consult a psychologist. interactions with Jacobs that he should A psychologist then interviewed defen- investigation initiate some “of a psycholog- hours, dant for about fifteen ran several (PCRA psychiatric ical or nature.” Hear- tests, psychological reviewed records re- 29:24). ing Tr. Counsel knew 5/29/97 garding the crime defendant’s life Jacobs, young man with no criminal history, and found no to support violence, history or history admitted to a mental defense. Counsel relied on the stabbing girlfriend than more 200 experts’ opinions and decided not to ex- times. Counsel knew Jacobs faced plore further or a mental defense. penalty, yet the death did not inform Dr. Id. Davis that the seeking Commonwealth was The Ninth Circuit ruled that Hendricks’ penalty, provide the death did he nor attorneys discharged duty had their with any background Davis information seek out a psychiatric evaluation. Id. at concerning the crimes history. or Jacobs’ 1038-39. The Ninth Circuit further ruled Counsel interviewed Jacobs’ mother before trial, that counsel “fell within the range but did not broad any questions ask her regarding presumptively acceptable by hir- history, Jacobs’ mental health conduct childhood, ing professionals two health in- background. light mental of all vestigate potential that was known or mental defenses and made available coun- sel, shared, we conclude that then relying unqualified Jacobs has satisfied their prong first the Strickland test. He conclusion that there no basis for has Attorneys, demonstrated that counsel did not mental ex- defense.” Id. emotional and damage, and other to “sec- brain cannot be forced opined,

the court impairments. mental experts.” Id. ond-guess their legal presented in also find the issue We case to Jacobs’ is dissimilar Hendricks in one presented unlike the Ja- Hendricks First, Hen- significant respects. in two in Hen- question cobs’ case. The raised vastly differ- material facts dricks involved was ineffective dricks was whether case. Hendricks’ from those in Jacobs’ ent deciding investigate in not to more exten- psychiatrist a attorneys employed both making strategic a choice not sively before de- evaluated the a who psychologist and at present capacity a diminished defense to extensively, and separately and fendant whether The raised here is question all. informa- background the benefit with by failing ineffective to inves- counsel was no experts agreed that evidence tion. support evidence to tigate and discover capacity a support to diminished existed subtle, Although he pursued. defense case, In while counsel defense. An significant. attorney’s distinction is Jacobs; there Dr. Davis to evaluate asked thorough made strategic choices after a that Dr. no indicаte is information to investigation virtually unchallengea- “are sufficiently exten- Davis’ evaluation was Strickland, 690-91, ble.” U.S. “ex- only states sive. His affidavit ap- 2052. Hendricks reiterates if he Jacobs to determine had amined Mr. principle. Coun- plies this well established major impairment mental illness or other a investigate adequately and sel’s failure to to incompetent him that would render support strategy to his discover evidence or negate or reduce that would stand entirely question, different choice is (Davis Affida- responsibility.” his criminal one Hendricks does not which address. ¶ 4). evaluation, Dr. conducting In vit Wiggins, 539 U.S. at 123 S.Ct. See not was sub- Davis was aware that Jacobs short, inapposite In is Hendricks penalty, nor was Dr. ject the death our conclusion that does not affect privy any background information prong, Davis the first has satisfied Strickland result, psychological demonstrating attorney As a no that his failed whatsoever. turn, judg- reasonable testing professional occurred. counsel failed exercise retardation, regard.7 in mental ment this to discover Jacobs’ ¶¶ 12.) Davis that the dissenting colleague suggests that coun- Dr. was unaware 7. Our by relying killings argument performed reasonably occurred after heated be- sel on Dr. ¶ (Id. 12.) deciding inquire tween Jacobs and Mock. He knew report in not Davis' oral background, nothing as dis- about Jacobs' such further into Jacobs' mental health. The history history correctly Dr. Davis did not his lack of criminal sent notes that ¶¶ (Id. 3, 12.) forming a con- behavior. As Dr. Davis incapable he was violent state that him, "suggest opined, these facts alone on the information available later clusion emotionally any highly was disturbed additional information. Mr. Jacobs nor did he ask for offense,” he was “highly prevent time of Several other relevant facts” by powerful agreeing, undisputed and uncharacteris- us hоwever. It is ."overcome from ¶ 12.) (Id. completely In our was unaware that tic emotional reaction.” that Dr. Davis view, light of subject penalty. the death all circumstances Jacobs was case, ¶1¶ 4, (Davis 7.) patently capital it unreason- At the time he this was Affidavit rely solely Dr. Davis’ opinion, able for counsel to offered his Dr. Davis unaware opinion deciding not to investi- stabbed more uninformed Mock had been gate history provided Jacobs’ mental health further. than 200 times because he was report background of counsel's decision autopsy with the or other The unreasonableness pursued a concerning killings, compounded the fact that he other than materials any ex- police report con- defense without "a with some information diminished it, (Id. expressly alleged pert support as cerning the facts of the offense.” re- establishing In addition to capacity appreciate that to the consequences of attorney performed deficiently, Jacobs conduct or to conform his conduct the prejudiced requirements must demonstrate that he was of the law.” (Fleming Affi- ¶ 13). Strickland, counsel’s error. See 466 Fleming davit Dr. also stated that prejudice retardation, U.S. at 104 S.Ct. 2052. The Jacobs’ “mental brain damage requires “that component Jacobs show and other mental health and cognitive im- that, probability there is a reasonable but pairments significantly his ca- diminished] errors, for unprofessional counsel’s re pacity premeditate the specific and form a ¶ (Id. 14). sult of the proceeding would have been intent to kill.” According to Id. at different.” 104 S.Ct. 2052. Ja Fleming, Dr. the “support facts conclu- cobs need not show that counsel’s deficient sion that he did not have the capacity to performance likely (Id.). “more than specific not altеred form the intent to kill.” rather, in the outcome he must case”— Pennsylvania, diminished ca In only show “a un probability sufficient to pacity “is an extremely defense, limited dermine confidence the outcome.” Id. requires which psychiatric extensive testi 693-94, 104 S.Ct. 2052. This standard mony establishing a defendant suffered “ ” is stringent Jermyn not ‘a one.’ from one or more mental disorders which (3d Cir.2001) Horn, 266 F.3d 282 prevented him from formulating specif Barbo, (quoting Baker v. F.3d Cuevas, ic intent to kill.” A.2d (3d Cir.1999)). Both Drs. Fleming Kessel and have ex are persuaded pressed We that has a willingness testify Jacobs that Jacobs prejudice prong. satisfied Strickland’s As suffered from mental disorders that de above, described Dr. Kessel him prived capacity conducted of the to form the psychiatric forensic specific evaluation of Jacobs. intent to kill Tammy Mock. our ¶¶ (Kessel 1-2). view, Affidavit According to specific type Jacobs’ case is the Kessel, Dr. combination Jacobs’ which the capacity diminished defense as impairments substantially mental health Tammy to the murder of appropri Mock is mental, impaired emotional, Moreover, Jacobs’ persuaded ate. arewe that if ¶ (Id. 5). cognitive capacities. In Dr. jury had heard Drs. Kessel Flem opinion, testify Kessel’s Jacobs “did not in fact ing based on their evalua extensive specific Tammy tions, have the to kill” intent there is a probability reasonable ¶ (Id. 14). Mock. Fleming Dr. also evalu would have found guilty ated murder, Jacobs and concluded that degree Jacobs’ third not first mur degree “substantially der, impaired disturbances Mock.8 [his] Cuevas, quired Pennsylvania prejudice. ‍‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​​‌​‌‌​​‌‌​‌​‌​‍law. See Jacobs’ assertion of The Com- challenged A.2d at 393. monwealth could have Jacobs’ expert by submitting expert evi- aware, dissenting colleague 8. We are as our appears dence of its own. It Com- notes, that nо court strategic heretofore has decided monwealth made the choice not to evidence, prejudice whether Jacobs has satisfied submit such a choice dowe prong question. Regardless, of Strickland. Both the prejudice because the one, Supreme purely Court and legal the District Court ruled determination here we perform deficiently. that trial counsel did not need not remand to the District Court to Thus, required neither of those courts was make such a determination in the first in- decide prejudice. whether Jacobs suffered stance to allow the Commonwealth sec- so, prejudice properly challenge expert Even the issue of opportunity ond courts, before emphasize each those as were affi- We evidence. that Jacobs need Fleming davits supporting capacity of Drs. Kessel and not establish his diminished defense it trial counsel reasons, testimony, is clear that we conclude For these pursue a diminished investigate did has demonstrated that Jacobs of Appellant on behalf defense ineffective assistance counsel rendered Accordingly, ability. of his the best Amendment. Under violation Sixth had a basis AEDPA, however, as trial reasonable our determination did, he cannot be proceeding as Pennsylvania Supreme Court errone claim on deemed ineffective. ously rejected this the merits necessarily entitle Jacobs to fed does not II, 727 A.2d at 549. Jacobs Rather, re AEDPA eral habeas relief. Supreme re- Pennsylvania The Court’s the that to demonstrate Jacobs quires the jection solely this claim is based on of of rejection Supreme Court’s Pennsylvania basis that had a reasonable finding counsel to, contrary or involved this claim either is In further. deciding investigate for not to of, application objectively an unreasonable Pennsylvania finding, this the Su- making 2254(d)(1); § 28 See U.S.C. Strickland. the placed great weight on preme Court 520-21, Wiggins, 539 at 123 S.Ct. U.S. orally that he reported fact Dr. Davis 2527; Gattis, F.3d at 228. 278 major of a mental illness found no evidence claim, Pennsylvania liability. denying reducing this the negating or criminal Strickland, Supreme not cite Supreme Apparently, Pennsylvania Court did the pro- apply two-part disregarded test. counsel’s failure to nor did it Strickland’s Court necessary Rather, Supreme the informa- Pennsylvania the Court vide Dr. Davis with evaluation, as proper tion to conduct a well applied following the standard: facts highly relevant as several other as- respect With to claims of ineffective known at the he decided to counsel time counsel, Appellant of is sistance trial investigate not to further. required to that the claim has establish merit; no arguable that trial counsel had view, Pennsylvania In our the Su proceeding for as reasonable basis decision, single on preme based Court’s did; alleged and that the ineffectiveness other relevant factor to exclusion of of the truth-de- counsel so undermined factors, applica involved unreasonable adju- termining process that no reliable teaches tion of Strickland Strickland.9 have guilt of or innocence could dication deciding any ineffectiveness place. taken whether, light claim must “determine II, (citing 727 A.2d 547-48 Com circumstances, the identified acts all Collins, 616, v. Pa. 687 monwealth 546 counsel] outside [of omissions were (1996)). 1112, A.2d competent as range professionally wide Supreme then concluded: Strickland, 690, 104 466 U.S. sistance.” added). (emphasis Specifically, psychiatric results S.Ct. 2052

Based evaluation, challenging in an given Appellant’s ineffectiveness claim Pennsylva- conclusively previously We purpose of 9. have ruled for the demonstrat- Rather, ing assessing a Sixth Amendment violation. nia’s test for ineffective assistance required explained, he show as we have contrary to claims is not Strickland. only probability out- a reasonable that the 178, (3d Vaughn, v. See Werts F.3d proceedings would been come of have Thus, 2254(d)(1), Cir.2000). § rele- under presented evi- different if trial counsel had Pennsylva- question vant is whether the here retardation, organic dence of Jacobs’ mental Supreme involved an un- nia Court's decision damage, other brain mental deficiencies. application of Strickland. reasonable 694, Strickland, See 466 U.S. at investigate, counsel’s decision Court’s decision involved an unreasonable application mandates that counsel’s deci of Strickland. Strickland directly sion “must be assessed reason reasons, For these we conclude that trial in all the circumstances.” Id. at ableness counsel rendered ineffective assistance in 691, 104 S.Ct. 2052. violation of the Sixth Amendment at the guilt phase by failing investigate Strickland, Since United States Su present evidence showing that Jacobs suf- preme repeatedly emphasized Court has retardation, fered from mental organic necessity assessing an ineffective damage, brain and other emotional and light ness claim in of all the circumstances. mental impairments prevented him Wiggins, See 539 U.S. at 123 S.Ct. from forming specific intent to kill 2527; Roe Flores-Ortega, 528 U.S. Tammy Mock. We further conclude that 120 S.Ct. 145 L.Ed.2d 985 the Pennsylvania Supreme rejec- Court’s (2000); Morrison, v. Kimmelman 477 U.S. tion of on this claim the merits involved an 365, 384, 2574, 106 S.Ct. 91 L.Ed.2d 305 application unreasonable of Strickland. (1986). We too have the im underscored Accordingly, we will reverse the District portance circumstance-specific of the in Court’s decision denying federal habeas quiry mandated See Strickland. Lewis clаim, relief on this and will remand with Johnson, (3d 646, v. 359 F.3d 659 Cir. grant instructions to the writ.10 2004); Horn, Rompilla 233, v. 355 F.3d — (3d Cir.), granted, U.S. —, 257 cert. our While decision invalidates Ja 27,159 (2004); 125 S.Ct. L.Ed.2d 857 Dun cobs’ degree conviction the first mur Morton, (3d 189, v. 256 can F.3d 201 Cir. Mock, der of remains question the 2001); Morton, Berryman v. 100 F.3d whether counsel’s ineffectiveness also in 1089, (3d Cir.1996); 1101 v. Frey Fulcom validates Jacobs’ conviction for murdering (3d Cir.1992). er, 348, 974 F.2d 358 These Holly. As noted the previously, diminish amply cases demonstrate that assess capacity requires ed defense a defendant ment of the reasonableness of counsel’s general to admit culpability. See Com performance requires under Strickland Legg, 437, monwealth v. 551 711 Pa. A.2d all (1998). consideration of the 430, circumstances. 433 Because Jacobs denied Here, Pennsylvania the Supreme Court killing Holly, capacity the diminished de did not adhere to Strickland’s clear man fense baby’s was unavailable as to the In light date. of all Johnson, the relevant facts murder. v. See Commonwealth above, (2002). we 283, 563, described are constrained 572 Pa. 815 A.2d 578 because, conclude that Pennsylvania Supreme the acknowledges, That is as Jacobs McCullum, specific 10. Our decision is influenced Jacobs' intent kill. See 738 argument that the District Court’s decision jury's during A.2d at function the denying based habeas relief on counsel's con- sentencing phase weigh mitigating is to fac- guilt during phase duct the is inconsistent against aggravating tors See 42 factors. Pa. grant with its of relief on his of ineffec- claim 9711(c). § sentencing, Cons.Stat. Ann. At the during phase. penalty tive assistance the jury mitigation must consider “evidence During guilt phase, the defendant must concerning the character and record of the establish that he "suffered from one or more defendant and circumstances of his of- prevented mental which disorders him from weigh mitigating fense” and must factors formulating specific kill.” intent to See against aggravating 42 Pa. factors. Cons. Cuevas, capaci- at 832 A.2d 393. Diminished short, 9711(c), (e)(8). §§ Stat. Ann. In coun- ty guilt phase evidence at the limited to is guilt phase sel’s duties at the and his duties at expert psychiatric testimony demonstrating sentencing phase significantly. differ defendant was unable form the 108 law, a Tammy. Under is capacity defense inconsistent

diminished capacity simply defense was See diminished of innocence.11 an assertion with Holly’s Williams, as to death because 577 Pa. unavailable v. Commonwealth (2004). find maintained his innocence. We Jacobs 846 A.2d Legg nothing suggesting otherwise. a di- Nonetheless, argues that Jacobs fact, Betty Legg’s situ- Legg distinguishes capacity defense to murder minished in which the defendants ation from others in his case. Holly be inconsistent would not at their innocence. See id. maintained Legg proposition cites for the Jacobs (distinguishing Commonwealth 434-35 capacity defense available “a diminished Cross, (1993), 535 Pa. 634 A.2d which admits facts where defendant Mizell, Pa. Commonwealth v. may jury responsible to hold him cause (1981)). the sole issue A.2d 424 Because killing degree.” (Appel- for the to some Legg’s Betty at trial was mental state 2). Mem. Supplemental lant’s shooting, she not whether time con- trial counsel argues that because his husband, Legg’s counsel should killed her argument Holly’s closing ceded have raised diminished defense been accidental and death could have negate specific intent to kill. See could have found Jacobs criminal- Legg, A.2d at 435. death, a ly for her diminished responsible Moreover, in- not have we not coun- capacity defense would been do read defense testimony argument that he did as concession that closing with his sel’s consistent for Holly. criminally responsible be not kill Jacobs could Rather, ac- Holly’s death. defense counsel that that argues To the extent Jacobs no еvi- knowledged that there was direct Legg, disagree. similar to we his case is Holly Tammy Mock murdered dence that There, Betty of the Legg was convicted Holly that and stated “we don’t know” how degree first murder of her husband and (Trial Tr., IV, Vol. at drowned. 9/17/92 in prison. Legg, was to life sentenced 735:9-736:4). empha- Regardless, expressly that Legg A.2d at 432. admitted sized, “most that he did Jacobs was sure” her main- she and killed husband but shot Holly any way in not hurt believed shooting that was accidental. tained (Id. Holly. at that Mock killed present Counsel did not evi- Id. at 435. 739:1-739:4). 736:5-736:12, con- Counsel Legg’s capacity. diminished dence of by reminding closing argument cluded his found that a Pennsylvania Supreme Court causing jury that admitted Jacobs defense would diminished causing Tammy Mock’s death but denied that Legg’s position have conflicted with (Id. 745:20-746:4). Holly’s at death. accidental, and that shooting ruled ineffective assistance counsel rendered alternatively that argues Jacobs present such Id. failing to evidence. ineffective invalidates counsel’s assistance 435. Holly murdering his for because conviction Here, testimony regarding his mental dis consistently expert has denied Jacobs Holly orders and defects would have corroborat- fact blamed her death killing supple- Appellant's Supplemental requested permission at 2. turn to file a 11. Mem. See argument, responding request- mental memorandum oral Jacobs' counsel After supplemental granted We permission supplemental ed file a memo- memorandum. requests par- addressing these have considered the whether counsel's ineffec- randum rendering supplemental ties’ memoranda in undermined Jacobs' conviction tiveness murdering Holly. The Commonwealth in our decision. testimony his that he lashed out in telephone ed he admitted conversa- Holly bath- finding after dead in the rage baby tions that he Holly. killed his This, believes, sup- would have tub. alleges the trial court violated his testimony his not kill ported he did right federal to due process by failing to Holly. the evidence have Whether would jury instruct the in accordance with state facts, his supported version howev- law Commonwealth’s burden of er, inquiry. is not the must relevant We proof to establish corpus delicti of argument light specif- examine his of his Holly’s murder considering before his out- ic claim that trial counsel rendered ineffec- of-court admissions. He also alleges that by failing to such tive assistance counsel rendered ineffective assistance in Strickland, evidence. Under must de- we violation the Sixth Amendment fail- termine whether there is a reasonable ing object corpus delicti jury result of probability proceed- instruction. He further asserts that jury would have different if ing been apart evidence from his out-of-court admis- expert testimony regarding heard his had sions insufficient to establish the corpus Strickland, mental disorders. See 466 delicti light

U.S. According Pennsylvania’s Delois’ two statements that Jacobs admit- rule,12 corpus delicti before introducing a killing Holly, cannot ted we find a reason- criminal defendant’s out-of-court admis probability jury able that the would have sion, “the Commonwealth must establish Holly’s if acquitted Jacobs of murder by independent that a crime has had expert testimony heard regarding in fact been committed.” Commonwealth mental disorders. Reyes, Pa. 681 A.2d reasons, For these we will the reverse (1996). A defendant’s confession “is not District Court’s decision denying federal in proof evidence the of absence habeas relief as to claim ineffec- Jacobs’ of ” corpus delicti. Commonwealth v. Taylor, tive assistance of at guilt phase counsel the (2002) (in 574 Pa. 831 A.2d 590 failing investigate in evi- omitted). quotations ternal In a murder disorders, of denсe mental but as to only prosecution, the corpus delicti consists of Jacobs’ conviction the first mur- degree for that an evidence individual is dead and of Tammy der will Mock. We remand to that death from the resulted criminal the District Court with instructions Tallon, means. Commonwealth v. 478 Pa. grant the writ upon conditioned Com- the (1978). A.2d monwealth providing Jacobs new trial on charge murdering the of Tammy Mock. Pennsylvania The Supreme Court has application the of described the rule as a Challenges B. to Jacobs’ Conviction approach” having a “two-tiered “dual level Holly for the Murder of Jacobs Reyes, of at proof.” 681 A.2d 728. The Pennsylvania’s Corpus Based on pertains solely first tier to the admissibili Delicti Rule ty of the defendant’s out-of-court confes Pennsyl- Jacobs’ next claim is based on at stage, sion. Id. 727. At this the trial corpus vania’s delicti rule and applica- its must determine whether the Com tion to his pretrial mother’s statements monwealth has established a prepon (6th literally, corpus ed.1990). naiy 12. Translated delicti means body "the crime.” Black's Law Dictio- II, Pennsyl- A.2d at 552. the (apart from Jacobs of the evidence derance also addressed confession) Supreme Court has in fact been vania crime permit- tri “the trial court erred Once the whether Id. at 727-28. committed.13 [Ja- into the statements of confession, jury- ting the al court admits the relating [his] the confessed cobs’] mother may not consider the confession unless no there was killing Holly Jacobs where proves corpus the delicti Commonwealth 728; to establish independent evidence Id. at beyond a reasonable doubt. of anything died as a result Tallon, Holly Jacobs 387 A.2d than an accident.” Id. other actually consists Jacobs’ claim Because claims, he separate related but three the opinion does Nowhere its that he exhausted each must show Supreme Pennsylvania specifically Court Jacobs petitions,15 them.14 In his PCRA to the trial court’s instruction mention the rule at corpus delicti does not mention regarding corpus delicti counsel’s jury howev- appeal, all. In his brief on PCRA object Significantly, to it. failure er, mis- argues that the trial court Jacobs Pennsylvania Supreme specifically Court wrongly corpus rule and applied the delicti for claims waived failure found certain statements, his out-of-court admitted court—Jacobs’ present them PCRA jury court failed to instruct jury cor challenge to the instructions on rule, and corpus on the delicti properly list of delicti is not mentioned pus counsel were ineffective n. previous that all Id. 550 & 9. In other waived claims. object words, to the trial court’s failing although presented failing matter on pursue challenge, actions and Su instruction proceedings. or in addressed it nor appeal preme direct PCRA Court neither only it conclude found waived. We can Apparently, Pennsylvania Supreme Pennsylvania Supreme challenge based Court overlooked Jacobs’ aspect corpus overlooked this Jacobs’ corpus on the trial delicti instruc- court’s delicti claim. Pennsylvania Supreme Plainly, tion. Pennsyl- that the merits of as- We must also conclude Court addressed the Court would not have Supreme “trial coun- vania sertion that PCRA trial claim waived—that court con- raising in not the deemed this sel were ineffective delicti on the several other claims apply corpus court’s failure to the sidered merits precisely posture.16 the same Because Holly rule the death of Jacobs.” regarding prop- Jacobs' were that he not chal- merit because statements 13. Jacobs makes clear dоes erly appears the lenge It that Common- admissibility of his out-of-court admitted. the his wealth concedes that Jacobs exhausted (Reply to his Br. at 10- statements mother. corpus challenge jury on instruction the 11). delicti rule. Unfortunately, does 14. the Commonwealth petition, proa which 15. Jacobs filed se PCRA fully claims are not address whether these subsequently supplemented. properly exhausted. The Commonwealth challenging the part reads claims in as these Alternatively, for reasons discussed trial court’s admission of Jacobs’ statements 16. infra mother, III.D, cogni- Pennsylvania's application its of to his asserts that it is not section capital appeal (Appellees’ cases on PCRA zable issue state law. Br. waiver rule in as an of 28-29). adequate procedural The also reads is not an state rule Commonwealth determining is challenging purposes as failure whether this claim these claims counsel's evidence, procedurally under federal habeas object to the admission of the barred argues without law. that it is exhausted but

111 tin, court has issued a decision 653 F.2d at 809-10 (quoting Cupp, no state 414 396). 146-47, process jury the U.S. at 94 challenge Jacobs’ due S.Ct. instructions, the deferential standards Here, Jacobs contends that the 2254(d)(1) § apply. do not See review trial right court violated his to federal due Rather, Everett, 290 F.3d at we re- 508. process by failing to jury instruct the that claim Appel, view this de novo. See 250 it corpus beyond must find the delicti a so, following F.3d at 210. Even for the doubt considering reasonable before reasons, correctly the District Court con- confessions, out-of-court required by as that these claims warrant cluded do not state A review law. of the instruction as it federal granting habeas relief. pertains specifically Jacobs’ confessions charge perfect. reflects that the was not Jury Corрus Delicti

1. Instruction on spent pages trial court four transcript charge of the 44-page discussing “special law, Under apply considering rules” that when a de jury cannot consider a defendant’s out-of- fendant’s confession: first jury admission unless the finds case, In pre- this is Commonwealth that the Commonwealth established the senting testimony of the Defendant’s beyond corpus delicti a reasonable doubt. mother in belief that it confes- is a Reyes, See 681 A.2d at The federal sion, admission, by him that he com- Due Process Clause in turn protects crimes, mitted these spe- and there are criminal against ex defendant conviction apply cial rules confessions. proof beyond cept upon a reasonable doubt The Commonwealth has introduced evi- every necessary fact constitute dence of a statement which it claims was which charged. crime with he is re you made the Defendant. Before 358, 364, Winship, U.S. 90 S.Ct. consider statement as evidence (1970). 25 L.Ed.2d 368 The Due Process find, against you the Defendant must requires in Clause also be first, committed; crime in fact was beyond necessity proof structed on the second, that the Defendant in fact made States, reasonable doubt. Cool v. United statement; third, that the state- 100, 104, L.Ed.2d U.S. Otherwise, voluntary. you ment was (1972). review, On federal habeas disregard must the statement. question ailing relevant is “whether the juror ultimately Each should decide instruction itself so infected the entire thereby these for himself and questions the resulting conviction violated individually accept reject or Defen- ..., process merely due whether the dant’s statement as evidence. You must undesirable, erroneous, instruction not the fact that I the allow admitted universally even Martin v. condemned.” you statement into evidence to influence Warden, Huntingdon State Correctional any way during yоur in (3d Cir.1981) (al delibera- Inst., 653 F.2d 809 tions .... original) (quoting teration in Henderson v.

Kibbe, 145, 154, 431 U.S. 97 52 back to There get S.Ct. Now to confessions. (1977) Naughten, deal of Cupp appear great L.Ed.2d and does not to be a 141, 146-47, a crime was in fact dispute U.S. that commit- “ (1973)). ted, single regard L.Ed.2d 368 instruc in to of ‘[A] least the death jury may judged my tion to the in Mock. Now that Tammy be doesn’t— but in a fact. saying artificial isolation must be viewed that doesn’t make it ” you of Mar- in charge.’ Nothing the context the overall is fact the case until as the as a fact, charge in examine neglected has to it to be a but jurors determine rather, portion he has isolated the counsel, what arguments of that was the whole— to charge specifically it relates of the as to indicate. I understood defense essentially excluded con- confessions and saying that. only reason I’m That’s the of remaining forty pages of the sideration something you for to deter- But that’s charge. the jury you get out to the mine when room.... judge trial referred charge, In the the that the it appeared So to the Commonwealth’s numerous times to you have specific that would of prove every issue to element burden each area is that particular focus on in this beyond crime a reasonable doubt. the fact the state- suggest any made the other the Defendant did trial court Never you any regard, proof in that what that bore ment. And of Jacobs burden charge is was on particular [sic] to focus on in whatsoever. Based the want burden whole, unlikely extremely as he them re- it spoke his actual as a we find words words, that perceived In other did that the the Common- peated you. to course, And, beyond less thing? was ever than say that of wealth’s burden exact trial testimony ‍‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​​‌​‌‌​​‌‌​‌​‌​‍Additionally, doubt. the a reasonable there’s been some varied jury that judge specifically instructеd the You’ve the state- regard that. heard to of stand, Tammy murder of and the murder from ment the witness on required findings: Holly individual that mother. You’ve heard statements her earlier she on occasions there’s to be always, going made And as [sic] why there a distinction findings, Tammy reasons as to is first that separate two two, you’ve heard also Holly between the is that Mock dead and second say what his version dead, the Defendant and I won’t repeat Jacobs his or conversation was to his statement applies each time. Please assume that mother. You’ll everything going say. I’m findings one. separate have two for each if to have work out you’re going So you a reason- proven beyond it’s been 804:7-804:12). (Id. at were, doubt what exact words able argues To the extent that Jacobs you’re and if satisfied to what as verdict,” “all but directed a were, may then consid- you exact words support lacks contention also based this a crime along finding with er charge a whole. an examination as state- has been committed and that the instructions, general the trial court In its voluntary. ment was charged jury: 786:20-789:20). (Trial Tr., V, Vol. 9/18/92 Now, you how make that decision? do Well, you, collectively, are the argues that the trial court’s effect effect, constitutionally judge it facts. there’s charge is infirm because judges two in the I’m the any reference the Common- case. [sic] omitted you law and must follow proving corpus judge de- wealth’s burden doubt, going give as I now it to beyond reasonable failed the law am licti you judges the facts you, but are the distinguish between deaths you Holly, totally up a verdict and it’s to to determine and “all but directed exactly been (Appellant’s happened what and what’s corpus on the delicti issue.” 40-41). crit- the Commonwealth Opening proved Br. at While Jacobs’ it the are not meets their burden and portion charge icisms of this whether unfounded, you from that after entirely it is that he verdict that flows apparent you the to as find to the in jury law the facts instruct with apply compliance them. Ahlbom violated his federal right to due process. 779:11-779:21). (Id. at Moreover, trial specifically the court re- supports Ahlbom the conclusion that the jury the of determine duty

minded its to must, law, trial court as a matter of state regarding confession: the facts specifically charge jury to the find juror ultimately “Each should decide these beyond doubt, corpus delicti a reasonable thereby for questions himself and individu- if trial even court in correctly has accept reject ally the Defendant’s state- jury structed the as to the Common as evidence. ment You must not allow the wealth’s overall burden. Nothing in Ahl- I admitted fact that the statement into however, bom suggests, you way to influence in dur- any court’s instruction violated the federal Due (Id. 787:9-787:14). ing deliberations.” at only Process Clause. Ahlbom examines judge further there did The noted that in single paragraph regard instruction appear great dispute “not to be a of deal ing the defendant’s confession without con committed, in that a crime was fact at least sidering the overall at instructions. Id. to regard Tammy the death Mock an analysis 520-22. Such does not com my it saying ... that doesn’t make [but] port with the principle well-established Nothing is a case until fact. fact single federal law that a instruction must jurors you as determine it to a fact.” be light be viewed in charge. the overall (Id. 788:7-788:12) added). (emphasis at 146-47, Cupp, See 414 U.S. 396. assertions, Contrary to Jacobs’ the trial Therefore, Ahlbom does not and should did distinguish court death govern corpus whether the trial court’s Holly, express from that of and did not delicti instruction violated Jacobs’ consti whether a commit- opinion crimе had been to right process.17 tutional due Dis Holly. ted as rejected trict properly this claim on Notwithstanding of the in adequacy the merits. whole, structions as a relies on Ahlborn, Pa.Super. Commonwealth 2. Ineffective Assistance of Counsel (1995), A.2d proposi for the Object Jury Failure to In- requires tion that law structions specifically jury trial court to charge corpus beyond find the delicti a reasonable claim is that Jacobs’ related trial counsel Ahlbom, charged failing doubt. the trial court rendered ineffective assistance prior considering object corpus the con to the specifically delicti fession, had, it must find that a crime To the instruction. extent that this claim fact, According object occurred. Id. at 521-22. is based on counsel’s failure to as a Court, law, Superior such an instruction matter of federal this claim is without convey previous- failed the reasonable doubt stan merit. For the reasons set forth essentially ly, Common proba- dard and diluted the Jacobs cannot show a reasonable burden of 522. Ac proof. bility proceeding wealth’s Id. at that the outcome of the Jacobs, cording to the trial court’s failure would have different if counsel had been judgment We note also that on a state 17. Ahlbom was direct collateral attack appeal greater required of a criminal conviction. The burden error than establish Martin, demonstrating appeal. instruc- See an erroneous on direct 653 F.2d prejudicial support was so a federal tion as to corpus Tammy Process delicti of Mock’s murder. objected on the federal Due based in court that he Clause. Jacobs himself testified he lost Tammy killed Mock when control ineffec counsel rendered Whether that, discovering had upon she drowned object to failing tive assistanсe the of both Holly. police The found bodies a corpus under state law is charge delicti Holly in bathtub the several previous described separate question. As closely days later. Because the related the trial court ly, suggests that Ahlbom exception the trial court was applies, charge must that the Common specifically that required jury to instruct the it must corpus be prove wealth the delicti must Holly’s the murder corpus find delicti jury yond before the a reasonable doubt id. beyond reasonable doubt. See can consider out-of-court admission. the Significantly, corpus delicti instruction closely that the related Jacobs counters the one at issue in Ahlbom is similar to only admissibility the exception applies trial; the trial court given at Jacobs' corpus (Appellant’s tier of the delicti rule. jury it had to each case instructed the that n.24). According Br. at 44 Opening find a crime in fact” was committed. “that Jacobs, Pennsylvania Supreme the Court Ahlbom holds that an instruction es such applied closely has never the related ex- sentially dilutes the Commonwealth’s bur tier of rule. ception to the second the of proof. den (Id.). Bardo, is incorrect. This here, inquiry We cannot end howev- our example, Pennsylvania Supreme the Court er, Pennsylvania the Su- because both considered whether expressly “the ruled preme Court the District Court in its instruction to the on erred required that the Commonwealth was not corpus the delicti rule.” 709 A.2d at 875. prove Holly’s mur- corpus the delicti Pennsylvania Supreme Court relied closely exception der under the related squarely closely exception on the related Pennsylva- the As the corpus delicti rule. the to conclude that claim was “meritless.” explained: nia Court has Supreme Id. play into where an exceptiоn This comes It claim of ineffec- follows charged accused is with more than one tive on counsel’s assistance based failure crime, the accused makes state- objection corpus law raise state the charged,

ment related all the crimes If delicti fail. counsel instruction must prosecution only but to estab- able an objection, had raised there is no such corpus lish delicti one of reasonable likelihood that the outcome of charged. circum- crimes Under those proceedings any would have been dif- relationship stances where the between Likewise, if had appellate ferent. sufficiently the crimes is close so that argument appeal, raised direct it is this on the introduction of the statement will unlikely Supreme purpose underlying not violate the would have vacated Jacobs’ convic- corpus rule, the delicti statement of for Holly’s tion murder. be to all the accused will admissible as charged. crimes Sufficiency Corpus Evidence of Bardo, 551 Pa. Commonwealth Delicti (1998). A.2d claim closely excep- corpus Jacobs’ final based agree We related Holly’s question tion here. There is delicti rule is that the evidence of applies no (apart the Commonwealth established murder from his out-of-court admis- sion) support finding 548:20-545:3, 549:2-551:12). is insufficient to at Ja- 9/16/92 beyond baby a reasonable doubt that the cobs now claims that trial counsel ren- was killed unlawful means. Jacobs as- dered ineffective assistance failing to Holly serts that died from drowning under investigate and evidence that De- equally circumstances consistent with an long lois had a history of alcoholism and accident with a crime. (Appellant’s as may have been intoxicated when Jacobs 48). this, Opening Br. at From Jacobs made out-of-court admissions to her.19 that the concludes Commonwealth failed to Pennsylvania Supreme Court re- prove beyond a reasonable doubt that a jected this claim on the merits because: had crime been committed. (1) there nowas evidence that Delois was argument The short answer to this intoxicated at the time Jacobs confessed to that the Commonwealth was required (2) her; trial counsel testified at the prove the corpus Holly’s delicti of mur- hearing PCRA that he did not want to closely der because the related exception undermine credibility of Delois’ trial applies. Even if it did not apply, this testimony by cross-examining her regard- argument lacks merit. The circumstances ing II, her alcoholism. Jacobs 727 A.2d at Holly’s equally death are not consistent 549. According to Su- Indeed, with an accident as awith crime. preme Court, counsel had a reasonable Jacobs that Tammy Holly testified killed basis for proceeding as he did and thus him, get back at and that he killed was not ineffective. Id. The District Court Tammy when he lost finding control at rejected likewise this claim on the merits baby persuasive dead. No evidence was concluding after that counsel’s actions con- presented at trial to establish that Holly’s III, stituted sound trial strategy. Jacobs death anything but a homicide.18 129 F.Supp.2d at 414. reasons, For these agree we with the agree We this claim lacks merit. District Court that Jacobs’ claims based on is, best, Jacobs’ assertion at that his moth- corpus delicti rule do not warrant fed- may er have been under the influence of eral habeas relief. alcohol at the time he confessed to her. We find no establishing that De-

C. Ineffective Assistance of Counsel lois was intoxicated or that intoxication Failing Investigate misrepresent caused her to the content of Present Evidence of Delois Ja- her conversations with Jacobs. Counsel cobs’ Alcoholism hearing testified at the PCRA that he had preliminary At a hearing, spoken Delois a couple Delois of times before Jacobs trial, testified her son had admitted and that she had never mentioned to her in telephone (PCRA conversations that he possibility of intoxication. trial, killed both and Holly. 39:21-39:25). At Hearing Tr. At 5/29/97 however, Delois testified that she had been hearing, PCRA Delois testified that going through problems some and was she did not remember whether she had very upset her, when Jacobs called drinking day been alcohol the Jacobs con- (PCRA that she could not remember whether he fessed to her. Hearing Tr. 6/13/97 (Trial Tr., 16:14-16:24). killing Holly. Ill, admitted words, Vol. In other suggests 18. Common sense that an by presenting infant of 19. Jacobs exhausted this claim Holly’s age did not climb into the bathtub on petition appeal. it in his PCRA and on PCRA accidentally. her own and drown reviewing petition habeas support for his assertion After Jacobs’ has factual little support reply memorandum regard. in this his of ineffective assistance Court, disagree filed in the District we failed ad- Additionally, has to Jacobs only counsel’s challenges this claim by prejudiced counsel’s dress how he phase. This representation penalty at the alcoholism and failure discover Delois’ to in- challenges failure “to claim counsel’s explain intoxication. He does potential the quire concerning among racial bias how he can demonstrate reasonable jury, where the entire members that he have been ac- probability would the case the venire was white and involved murdering Holly if had quitted counsel teenager female murder of white Delois’ credibility. Delois’ testi- attacked boyfriend.” child her African-American mony plainly favored Jacobs —if at trial (Pet. 26). memorandum, reply In at credibility сounsel had attacked Delois’ ineffectively alleges “counsel Jacobs alcoholism, the could with evidence of concerning inquire to racial bias failed testimony, entire well discounted her have jury.” (Reply among members of the portion testimony of her including that 47). The claim Mem. at discussion this which was favorable to Jacobs. is included within the discussion of several alleged regarding other of counsel’s errors short, fallen short of dem- Jacobs has (Id. 46-58). voir Jacobs con- dire. to onstrating that is entitled federal man- following this discussion in the cludes claim. The District habeas relief as this ner: rejected this claim on the properly Court protect failures Counsel’s numerous

merits. im- right Mr. tried be partial jury guilt that would decide his D. Ineffective of Counsel Assistance or innocence sentence based on Failing Request Dire for Voir than precon- law and facts rather Concerning Bias Racial bias, prejudice, ceived or statements African-American; Tammy Jacobs is made about case outside the Mock was white. Each member of the ... “unacceptable created an risk of dire, During venire voir panel was white. prejudice capital infecting sentenc- any not question prospec- counsel did Murray, ing proceeding,” Turner juror concerning bias. tive racial Jacobs U.S. at violation claims that trial rendered ineffec- Sixth, Eighth and Four- Petitioner’s during for failing tive voir dire assistance rights. teenth Amendment bias, inquire especially about racial (Id. 58). To claim conclude this young where a African-American man was sentence, challenges the death but not girlfriend. murdering on trial for his white convictions, underlying unduly is restric- tive. The District Court declined consider is According

this claim. to the District We consider next whether this claim Court, subject to challenged rep- this claim counsel’s exhausted and thus federal ha- penalty phase, According resentation at the not at the beas review. Common- wealth, phase. procedurally this claim barred guilt District Court believed Pennsylvania Supreme that it merits need not address the of this because present it to issue because the death sentence had been found it waived failure III, court. at 36- grounds. (Appellees’ vacated on other PCRA Br. 37). F.Supp.2d is correct that at 409-10. The Commonwealth Pennsylvania Supreme generally Court refused an issue deems waived where this claim on merits after petitioner to consider to present failed it to the PCRA finding it waived for it to failure to Albrecht, court. See Commonwealth v. II, court. the PCRA 727 A.2d at 31, 693, (1998). 554 Pa. A.2d 720 700 5. 548 n. Albrecht, however, Prior the Pennsylvania The fact that the Pennsylvania Supreme Court the applied Court refused this Supreme to consider relaxed in capital waiver doctrine on cases procedural for not nec claim reasons does appeal. PCRA Id. Under the relaxed essarily proeedurally render the issue doctrine, Pennsylvania waiver the Su on federal A feder barred habeas review. preme Court declined to apply ordinary question court a al “habeas ‘willnot review waiver in principles capital in an cases of law decided a court if federal state prevent effort to the court being “from of a [the the decision court rests on state] in instrumental an unconstitutional execu ground state law that is independent 23, 1998, tion.” Id. On November the question and adequate support federal Pennsylvania Supreme Court in Albrecht ” Lehman, judgment.’ the Szuchon v. 273 expressly abandoned the relaxed waiver (3d 299, Cir.2001) 325 (quoting F.3d Cole capital doctrine in cases on appeal. PCRA 722, 729, 111 Thompson, man v. 501 U.S. question, then, Id. The relevant is whether 2546, (1991)). 115 L.Ed.2d S.Ct. 640 We Pennsylvania’s strict enforcemеnt of previously a explained that rule is have capital ap waiver rule in cases on PCRA only following adequate20 under the condi established, peal “firmly readily ascer “(1) procedural speaks tions: the state rule tainable, regularly and followed at the time (2) terms; appel in unmistakable all state Szuchon, default.” purported petition refused to late courts review the F.3d at 327. (3) merits; on the er’s claims state in Pennsylvania courts’ refusal this instance consistent According Supreme is Walters, Court, decisions.” with other Doctor v. Jacobs waived his claim challenging (3d Cir.1996). 683-84 oth F.3d request re counsel’s failure voir dire words, procedural adequate er rule is prejudice garding racial when he failed established, it only “firmly readily if is present it to PCRA court. See Jacobs ascertainable, regularly followed II, 727 at 548 n. 5. A.2d Jacobs initiated purported the time of the Szu default.” by filing a proceedings pro peti PCRA se chon, 273 F.3d at 327. 13, 1997, January appointed tion on which May on supplemented

Generally, Pennsylvania’s PCRA re- many court denied PCRA quires petitioner prove allega- that his May claims in an oral decision rendered tion of eiTor has not been Pa. waived. all 9543(a)(3). 1997. The PCRA then denied §Ann. Cons.Stat. An issue is oral relief in a second decision on June petitioner waived if the could have deemed Pennsylvania trial, Supreme 1997. The Court it but failed to do raised so before firmly establish trial, review, did not its strict enforce during unitary appeal or ment of the waiver rule such cases until prior postconviction in a state proceeding. 9544(b). 23, 1998, Al Pennsylva- § when it decided Currently, Id. November brecht, year than a Supreme nia waiver more after Jacobs’ enforces the capital appeal, cases on was denied. It petition rule PCRA PCRA follows any question independent question pre- is nо from 20. There that the is federal Supreme application Court’s waiver rule of its sented. record, solely claim on the trial Court’s strict assistance Pennsylvania Supreme may a court capital creating rule in a situation which waiver enforcement its have whether a seem- way knowing no adequate appeal cases on PCRA coun- misguided action ingly unusual or purpose support judgment strategic Id. at under sel a sound motive.” procedural default federal had finding (internal Szuchon, 5, 124 quotation marks See 273 F.3d at 327. habeas law. omitted). and citation Accordingly, we are free examine of Jacobs’ claim.21 merits Here, requested had if Jacobs’ counsel respecting prejudice, ac voir dire racial capital defendant

“[A] constitutionally is to trial court would have been of an interracial crime entitled cused Turner, request. grant bound to his See jurors informed of prospective have 36-37, 106 Our 476 at 1683. questioned of the victim and U.S. S.Ct. race confirms that Murray, review of the entire voir dire of racial Turner issue bias.” any 28, 36-37, 1683, any ask of questions S.Ct. 90 counsel did not 476 U.S. 106 (1986). potential jurors regarding prejudice. racial The defendant must L.Ed.2d nothing suggests in request inquiry. Certainly Id. at the record specifically such racially 37, judge killing trial re Mock’s “[T]he 106 S.Ct. 1683. reasonably could form and number motivated. Counsel have tains discretion as to the jurors’ potential prejudice. probing on” racial Id. believed that questions of Here, jurors might unduly emphasize racial potential prejudices were never differences, inject ra- concerning racial bias because racial somehow questioned existed, it. cial a trial none request spe counsel did not issues into where trial issue, then, jurors’ view whether counsel ren or taint the of Jacobs his cific words, reason- failing attorney. other dered ineffective assistance pro- ably asking have request such voir dire. could concluded prej- racial spective jurors questions about Strickland, a federal habe Under good. more than udice would do harm indulge strong presump “must a as court circumstances, in the ab- Under these conduct falls within the tion counsel’s contrary, any sence of evidence to the we range professional of as wide reasonable presume that counsel’s decision was sound Strickland, at 466 U.S. sistance.” trial strategy. 2052. The bears the bur S.Ct. defendant failed overcoming presumption Jacobs has to overcome this den strong challenged might presumption. “continuing “the action be considered He notes (internal racial in York” the 2001 strategy.” quota sound trial Id. tensions since omitted). mayor a former for his al- tion counsel focuses on indictment of “When others, leged slaying in of an participation issues there is [and excludes] some strong (Appel- that he for African-American woman in 1969. presumption a did so n.37). lant’s Br. at 63 He does not through Opening tactical reasons rather than sheer Gentry, racial in York at the neglect.” Yarborough v. 540 U.S. describe the climate (2003). 1, 8, 157 L.Ed.2d 1 time trial in nor does he of his in presumption particular explain This “has force how the racial tensions petitioner impacted a bases his could have his trial. where ineffective- Everett, 21. Because no court has view it de novo. See 290 F.3d state rendered claim, decision on the we re- merits .this that his trial also asserts was minished Jacobs defense murder Tammy Mock. it We will remand racially sensitive because involved an this matter to the District with instructions relationship interracial sexual between an enter an granting order the writ of habeas girl- African-American man and his white corpus conditioned on Commonwealth’s suggests always He that counsel friend. trial, grant ‍‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​​‌​‌‌​​‌‌​‌​‌​‍of a new within a reasonable duty inquire possible into racial has time, on the charge murdering Tammy in racially case. (Appel- bias sensitive Mock. We will affirm the District Court’s 66). Opening Br. lant’s Whether denial corpus of habeas relief on each of properly Jacobs characterizes his trial as Jacobs’ remaining claims. subject racially sensitive is debate.22 racially sensitive, if Even were SCIRICA, Judge, Chief concurring authority cites no federal for the part part. dissenting that the proposition requires Constitution I concur with much opin- Court’s into inquire possible defense counsel to ion, I respectfully but dissent as to Part racially racial bias each sensitive case.23 my view, III.A. In Su- Moreover, adopt we a decline rule which preme analysis Court’s does not constitute require inquire would counsel to as to ra- an unreasonable application clearly es- prejudice, reasonably cial even where he tablished federal law that warrants vacat- questioning poor such strategic deemed ing Jacobs’ conviction and granting him choice. new trial. reasons, For these conclude we that Ja- claims his counsel was con- has failed cobs to demonstrate that trial stitutionally ineffective for failing to ade- performed deficiently by failing counsel to quately investigate present and evidence inquire possible into racial bias on voir supporting a diminished defense. Accordingly, dire. his claim of ineffective specifically, argues More that the affi- fails. regard assistance this davits of Flemingeach Drs. Kessel and whom performed psychiatric examinations IY. CONCLUSION of Jacobs for appeales- his state collateral tablish that his trial counsel’s efforts reasons, For the foregoing we will re- expеrt testimony obtain were so deficient verse the District order denying Court’s prejudicial rise as to to the level corpus habeas relief on Jacobs’ claim of constitutional ineffectiveness. during ineffective assistance of counsel phase by guilt failing investigate, discov- The District Court found trial counsel er, support guilt phase.24 a di- not ineffective on the Be ing Reyn- requires 22. To the extent that Jacobs relies on that the Constitution counsel Commonwealth, 157, Va.App. inquire racially v. 6 prejudice olds 367 about racial in each (1988), case, proposition S.E.2d 176 for the that his sensitive however. We note also that sensitive, racially we per- Supreme case was are not the Tennessee Court reversed the Reynolds' "replete appeals' unpublished suaded. was case with court of decision. See State, (Tenn.1990). epithets” "racially inflammatory racial Butler v. S.W.2d 789 898 scrutiny Id. Our evidence.” at 182. record here reveals no such evidence. 24.Because the District Court dismissed this solely claim based a review of the state State, conducting 23. Jacobs cites Butler v. No. C.C.A. court records—without its own 1163, (Tenn.Crim.App. evidentiary hearing plenary. 1988 WL 63526 review June is —our 23, 1988), Hendricks, 36, (3d holding that was counsel ineffective Marshall v. 307 F.3d 50 Cir.2002) Morton, failing request regarding (citing dire voir racial Duncan v. 256 F.3d 189, (3d Cir.2001)). nothing prejudice. suggest- We find Butler 196 120 (2000). 1495, a fed 146 L.Ed.2d 389 For properly I Court

cause District believe application find a court’s eral state standards of Antiterrorism applied the unreasonable, de Penalty Act of 1996 of law “the state court’s Death and Effective than (“AEDPA”),25 I have been more incorrect would affirm. cision must Smith, v. 539 Wiggins or erroneous.” I. Discussion 2527, 510, 520, 123 156 L.Ed.2d U.S. S.Ct. (2003) Andrade, 538 (citing Lockyer 471 v. notes, inquiry the relevant As the Court 63, 1166, 75, 123 S.Ct. 155 L.Ed.2d U.S. Pennsylvania Supreme here is whether (2003)). Rather, 144 state court’s “[t]he an “unreasonable decision involved Court’s ‘objectively un must have apрlication federal been application” clearly established ” 521, Id. at 123 2527 decision involves reasonable.’ S.Ct. law.26 A state court Williams, 409, 120 (citing law” S.Ct. application of federal U.S. “unreasonable 1495). 2254(d)(1) Court has Supreme § it “cor As under where 28 U.S.C. stressed, application rule “an unreasonable rectly governing legal identifies the different an incorrect one.” Bell v. unreasonably it to the facts from applies but Cone, 1843, 694, 122 v. prisoner’s case.” U.S. particular Williams (2002). 362, 407-08, 152 L.Ed.2d 914 Taylor, U.S. 120 S.Ct. Pennsylvania Supreme ad- standard of reasonableness.” Id. at presumption S.Ct. 2052. To overcome this claim on the merits on PCRA dressed effective, Jacobs, petitioner bears the appeal. Pa. See Commonwealth Thus, establishing (1999). perform- burden of that counsel's we 727 A.2d 548-49 "prevailing ance was unreasonable under apply in the standards set forth the Antiterror- 688, professional Id. at 104 S.Ct. Penalty norms.” ism Death Act of 1996 and Effective evaluating performance, 104-132, 1214., ("AEDPA”), 2052. "In counsel’s 28 P.L. 110 Stat. Horn, 'highly 'indulge a we are deferential' and 2254(d); Appel § 250 U.S.C. see also v. that, strong presumption' under the circum- 203, (3d Cir.2001) (deferential stan- F.3d 210 stances, challenged ‘might counsel’s actions only by apply provided dards the AEDPA ” strategy.' be sound ... Buehl considered adjudicated those on the merits claims 163, (3d Cir.1999) (cit- Vaughn, F.3d 169 AEDPA, 166 proceedings). state Under the court Strickland, 689, ing 466 S.Ct. U.S. 104 only petitioner is entitled to habeas relief 2052). prejudice, petitioner To show must proceedings where the state court "resulted that "counsel’s were so demonstrate errors to, contrary ain decision that was or involved deprive serious the defendant of a fair as of, clearly estab- application an unreasonable trial, a trial whose result is reliable.” Strick- law,” lished Federal or "resulted in a decision land, 687, U.S. at 104 S.Ct 2052. 466 on determi- that was based an unreasonable light of evidence nation of the facts in judging any Ultimately, the "benchmark presented proceeding.” in the State court 28 claim of ineffectiveness must be whether 2254(d)(1). § U.S.C. proper conduct so undermined the counsel's process functioning adversarial applicable

26. The federal law in this instance having produced a trial cannot be relied on as two-prong is the well-settled established test differently, just Id. Put issue is result.” "the by Supreme in Strickland v. Wash- appropriate, prudent not what conduct is ” 2052, 668, ington, 466 U.S. 104 S.Ct. 80 only constitutionally compelled.' but what is Strickland, (1984). Horn, 233, (3d L.Ed.2d 674 Under in or- Rompilla v. F.3d 246 Cir.2004) Kemp, der to merit habeas relief based on a claim (quoting Burger v. U.S. petitioner ineffective assistance of counsel 107 S.Ct. 97 L.Ed.2d 638 (1) (1987)), attorney's per- granted — U.S. —, must his demonstrate that: 125 S.Ct. cert. deficient, (2) 27, 159 Indeed, (2004). preju- was was formance he L.Ed.2d Strickland, deficiency. require perfection; diced this 466 U.S. Sixth Amendment does instead, "simply ... ensure[s] To defi- it that criminal 2052. demonstrate ciency, (quota petitioner must establish that coun- defendants receive fair trial.” Id. omitted). objective performance sel's "fell below an tions Pennsylvania Supreme testimony, Court evalu- it is clear that trial counsel petitioner’s ated claim as follows: investigate did and pursue a diminished capacity defense on behalf Appellant

Next, Appellant maintains that ability. best of his Accordingly, in failing counsel was ineffective to ade- as trial counsel had a reasonable basis quately investigate did, for proceeding as he he cannot be supporting a diminished capacity de- deemed ineffective. rejected fense. The PCRA this clearly assertion as the record Jacobs, revealed Commonwealth v. 727 A.2d at 548- pursued that trial counsel such a defense Appellant. behalf of Court, Like the District I believe this

Specifically, trial counsеl testified at analysis does not constitute unreason the PCRA hearing regarding his efforts able application of federal law. In my regard. initially this He stated that view, the Court has undertaken de novo when suggested Appellant review, conducting its own independent ap psychiatric evaluation should be con- plication of Strickland rather than focus ducted, Appellant rejected the idea ing its analysis review on an of whether claiming sanity. Trial counsel stated the state court’s application of that test that he was Appellant able to convince was reasonable under controlling and to submit to a psychiatric evaluation and clearly established law. A petition habeas that he arranged for such er, evaluation to however, “must do more than show performed. be Following this examina- that he would have satisfied Strickland’s tion, trial counsel was contacted test if his claim being analyzed were in the examining psychiatrist that, and told instance, § first 2254(d)(1), because under his opinion, Appellant was sane and enough it is not to convince a federal habe- knew what he doing at the time of that, as court in its independent judgment, Counsel, alleged therefore, crimes. the state-court decision applied Strickland told the psychiatrist not to Bell, issue a re- incorrectly.” 698-99, 535 U.S. at port and he was not testify called to Williams, (citing S.Ct. 1843 U.S. trial. 1495). 411, 120 S.Ct. Nevertheless, consistent Appel- with Pennsylvania The Supreme Court’s con-

lant’s trial testimony, trial pur- counsel clusion that trial counsel did not render sued a capacity diminished defense ineffective assistance a ap- was reasonable regards to killing of Tammy Mock. plication of Strickland. Testimony at the Appellant testified at trial that he was hearing PCRA established that trial coun- responsible not Holly Jacobs’ death. psychiatric sel ordered a evaluation for He stated that when he Holly handed Despite reluctance, Jacobs. Jacobs’ initial Tammy Mock, Jacobs to who was arranged trial counsel an examination with bathtub, Holly. Mock drowned Appel- Davis, Dr. Robert petitioner who examined lant testified that after this incident oc- “to if major determine he had a mental curred, he ‘lost it’ and killed impairment illness or other that would admission, Mock. Given this trial counsel render him incompetent to stand trial or argued that Appellant was incapable of that negate would or reduce his criminal forming specific a given intent to kill his responsibility.” aware, Dr. Davis was spe- mental state at the killing. time of the cifically, of intent counsel’s a

Based on the psychiatric defense, results of the capacity diminished and he was evaluation, given and Appellant’s provided trial police with the report detailing on the information available conclusion underlying offense. allegations through him results he obtained and the found mental Dr. Davis no theAs Dis- psychiatric examination. trial orally informed counsel and illness noted, the revealed no trict record Court that, opinion, suffered no in his background Dr. Davis for infor- request by illness, do- knew what was psychiatric provided by counsel. beyond mation and alleged the time of the murders ing at that, any after re- Nor there reason was sane. opinion, counsel would ceiving the doctor’s opinion, Dr. coun- Relying on Davis’ trial medical have on notice track down been report. request a written As sel did not inquiries that pursue records or to other intended, a diminished presented counsel relate to mental might possibly Jacobs’ Highlighting defense at trial.27 capacity health. testimony he “lost it” and require not right to counsel “does had Tammy Mоck because she killed attorney leave no that a criminal defense Jacobs, daughter Holly trial drowned unpur- witness stone unturned no that Jacobs’ argued counsel Morton, 100 F.3d Berryman sued.” incapable him mental state rendered (3d Cir.1996). theWith benefit kill at specific intent to the time forming petitioner argues now hindsight, of Mock’s death. able might trial have been counsel the state court’s supports This record testimony at trial present psychiatric sug- I would find that Accordingly, conclusion. from mild mental gesting Jacobs suffered Pennsylvania applied Supreme retardation, damage, or organic cog- brain reasonably concluding Strickland nitive The test for ineffec- impairments. investigation presenta- counsel’s trial however, tiveness, “is not whether counsel defense did tion of diminished more; is perfection could not have done constitute ineffective assistance whether required. Nor the test counsel. attorneys might best criminal defense places weight great The Court is ... have more. Instead the test done Pennsylvania Supreme apparent Court’s was within the whether what did failure to disregard pro- counsel’s range professional wide of reasonable as- “highly Dr. Davis rele- vide with several (ci- at 246 Rompilla, sistance.” 355 F.3d information vant facts” other “neces- omitted). tations proper ... evaluation.” sary conduct Court, Like the PCRA appears to include trial fail- This counsel’s Court, Court, I Supreme the District provide ure to Dr. Davis with additional to arrange believe trial counsel’s decisions and his background information failure examination, pyschiatric rely pro- a on the mother, during petitioner’s ask her inter- Davis, present opinion fessional of Dr. view, her about son’s mental health back- capacity supported a diminished defense ground. testimony, are not constitution- requires reviewing Furthermore, ally Strickland I defective. believe the circumstances, totality Supreme reasonably consider the Pennsylvania Court analysis applied reaching but I believe state court’s did this conclu- Strickland just reasons, Significantly, that. Dr. Davis sion. these I would affirm did For petitioner’s that he was Court’s denial of incapable forming state District Cuevas, noting scope. capacity v. 27. It bears that a diminished limited” in Commonwealth (2003). "extremely A.2d under law is 574 Pa. defense regarding assistance claim No. 04-1739. ineffective failure to investigate and counsel’s United States Court of Appeals, guilt defense at diminished Third Circuit. phase.28

Argued Nov. 2004. Jan. 2005. Bonaparte AUGUSTE, Napoleon

Appellant RIDGE, Secretary,

Thomas United Department of Secu

States Homeland

rity; Ashcroft, Attorney General John States; Garcia, United Michael Secretary,

Assistant Bureau of Immi

gration and Customs Enforcement

(BICE); Anthony Tangeman, Di S. Removal,

rector Detention

BICE; Carbone, John Detention and

Removal Field Office Director — New BICE; Abode,

Jersey, Michael T. War

den, County Middlesex Adult Correc

tions Center. now, Fleming, no Until court has addressed the The affidavits of Drs. Kessel and Strickland, prejudice prong guilt upon therefore-the which this phase. ‍‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​​‌​‌‌​​‌‌​‌​‌​‍concluding testimony The doctors' affidavit there relies in exists a reasonable presented only probability jury, in Ja- that the the first time had it heard testimo- doctors, appeal Pennsylvania ny two cobs’ PCRA before the from these would have found Supreme guilty degree Court. Because the of third murder rather perform- degree Supreme Court found been fac- trial counsel's than first murder-have never view, constitutionally tually any my adequate ance at both the contested court. guilt penalty phases, vacating inappropriate it did consider the conviction is not prejudice prong prejudice the affidavits under where issue of has never been either engaged degree found Strickland. District Court also tri- verdict of first murder. then, most, guilt phase, al counsel ineffective on the At this case should be remanded preju- prejudice did not and thus address Strickland's to the District Court to consider prong degree guilt phase on the dice first murder verdict. trial.

Case Details

Case Name: Jacobs v. Horn

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 20, 2005

Citation: 395 F.3d 92

Docket Number: 01-9000

Court Abbreviation: 3rd Cir.