*1 allowing rebuttal evidence in victim under a statute tion chastity of a correctly an this circumstance since he con- chastity as element specifying her the crime of seduction, or [2] compe- cluded that character had not been made negli- essential element of the defense. in an action for tency of the driver a motor vehicle to an entrusting gently 404(a) VI. Conclusion driver.” Fed.R.Evid.
incompetent comm, that Rule 404 (explaining note adv. reasons, judgment foregoing For the such evidence because does not exclude of the District Court will be affirmed. prove conduct consistent is not offered to character). contended, open court both Gibson chambers, put- Wilmington case character at issue
ting Gibson’s make him out to be a “bad” or
by trying to illuminat-
“lying” cop. particularly In one chambers, coun- Gibson’s ing discussion Ronald ROMPILLA impres- that: “there is a false sel stated police I that this sion think for police HORN, Commissioner, officer.” The officer was bad Martin “No, Pennsylvania Department I think that is the replied: Court I don’t think theory you have advanced. of Corrections impression a false created there has been Horn, Appellant/Cross-Appellee. Martin my evidence in within the context added). The fur- (emphasis view.” 00-9005, No. 00-9006.
ther stated: Appeals, United States Court of is considerable evidence on the [TJhere Third Circuit. documentary record from sources both testimony Christopher Gib- live Argued May very police effective officer in
son was 13, 2004. Filed Jan. officer, community police role as a officer, drug elimination when he was working for the WHA and when he was I think
in the weed-and-seeder. there
ample plenty of evidence the rec- conclusion, contrary support
ord to you advancing, Haverly. Mr.
to what are that the exchange
It is obvious from this
District Court did not believe Gibson’s issue, being put into a con-
character was agree. Wilmington we
clusion with which allegedly un-
advanced evidence
truthful statements that Gibson made on 16, 1999,
July day he called in sick. overarching allegations were no
There lying cop. a dishonest or
he was otherwise did not abuse discre-
The District Court its *2 PA,
al, Harrisburg, Appellant/Cross- Appellee.
Billy (Argued), Wy- H. Ñolas David W. *3 Wiseman, coff, Michael Defender Associa- Divi- Philadelphia, tion Federal Court sion, PA, Philadelphia, Appellee/Cross- for Appellant. SLOVITER, ALITO,
Before STAPLETON, Judges. Circuit OF THE OPINION COURT ALITO, Judge. Circuit Pennsylvania The Commissioner of the (hereinafter of Corrections Department Commonwealth”) from a Dis- appeals “the petition for granting trict Court order corpus a writ of habeas was filed Rompilla, prisoner Ronald to death. The District who was sentenced released Rompilla Court ordered im- he either to life unless is resentenced trial penalty phase or a new prisonment cross-appeals from the de- held. challenged insofar as it petition nial of his his conviction. We conclude Pennsylvania Supreme Court’s decision re- garding Rompilla’s sentencing proceeding contrary was not to and did involve application clearly estab- unreasonable precedent, lished reverse the decision therefore we Rompilla’s respect District Court with affirm the decision of the sentence. We respect to his convic- District Court with however, order, By we separate tion. to file Rompilla’s application granted petition for a writ of habeas a successive to assert his corpus so that he will be able Virginia, under Atkins v. that, claim L.Ed.2d 335 (2002), may he not be executed because At- Amy Zapp (Argued), Deputy Senior General, Attorney mental retardation. torney Office of Gener- Appellant also used a false name when
I. he checked in. mur- was tried for the In police secured a search warrant body Scanlon’s Scanlon. der James n Appellant’s motel room and seized bar, of blood in his lying pool found items, including Appellant’s several Allentown, Cozy Penn- Corner Café sneakers. These sneakers matched sylvania. had been stabbed re- Scanlon that was discovered footprint blood There no and set on fire. were peatedly addition, body. In near the victim’s eyewitnesses killing, Com- on the sneakers the blood found circum- monwealth introduced substantial type. matched the victim’s blood guilt. stantial evidence *4 presented also The Commonwealth appeal, the state su- opinion its on direct other circumstantial evidence prosecution’s court summarized the preme robbery the Appellant linked and as follows: evidence First, murder of James Scanlon. Mr. Cozy in the Cor- Appellant was seen by wallet was found Scanlon’s 14, 1988, from January ner Café bushes, groundskeeper six a.m. 1:00 a.m. to 2:00 approximately eight Ap- feet the room that outside time, he was observed During that George had pellant rented approximately going to the bathroom Second, Lodge. Washington Motor subsequent police A inves- ten times. Appellant’s fingerprint was found on the window tigation determined one of the two knives used to commit was used as in the men’s bathroom Finally, the murder. there were nu- entry into the bar after it point of merous inconsistencies between what had closed. Appellant police had told the concern- ing January his activities on and questioned investigat- When 15, 1988, testimony and the of other ing detective from Allentown Po- Appellant stated that witnesses. Department, lice Cozy in the had been Corner Café he Rompilla, Commonwealth v. 539 Pa. night of murder and left on the (1995). 653 A.2d The found a.m. 2:00 a.m. and 2:30 be- between Rompilla guilty degree of first murder and money. he had no He stated cause other related offenses. buy that he had break- $2:00 trial, At penalty phase of the at a local diner. A cab driver fast prosecution attempted to establish three picked up Appellant testified that he (1) aggravating factors: and drove him to two the diner committed the murder perpetrating while different Appellant hotels where 9711(d)(6), felony, namely, § 42 Pa.C.S. to rent a room. The driver unable (2) bar; burglary robbery Appellant George then took that he committed the murder means Lodge
Washington Motor
where he
(3)
torture,
9711(d)(8);
§
42 Pa.C.S.
a room. Appellant
was able to rent
history
that he
a significant
felony
had
paid the cab fare of $9.10.
involving
convictions
the use or threat of
Appellant
person,
rented
room for two violence to the
Pa.C.S.
9711(d)(9).
torture,
§
nights
George Washington
at the
Mo-
To establish
so,
Dr.
Lodge.
doing
paid
tor
he
Commonwealth called
Isidore Mihalak-
is,
large
pathologist,
in cash and flashed a
a forensic
who testified to
$121.00
inflicted on
multiple
to the desk clerks.
wounds
Scanlon
amount of cash
frequently
spoke
-wrote to her and
conscious and
that Scanlon was
opined
son,
wife,
“[fjamily, his
his brothers
wounds were
many of those
alive when
and sisters.” Id. She stated that the de-
Based on the
App. 698-707.
inflicted.
relationship
fendant’s
with his son was
wounds, Dr. Mihalakis also
nature of the
husband,
Id. at 736. Like her
Dar-
good.
killer had deliberate-
that Scanlon’s
opined
Scanlon,
lene testified that she had known
pain
inflict
before Scanlon
ly attempted to
did not
that the defendant
she
believe
To show the defen-
died.
Id. at 707-08.
him,
had killed
and that she felt for the
felonies, the
history of violent
prior
dant’s
family “[v]ery, very
Scanlon
much.” Id.
that he had been
proved
Commonwealth
Weeping,
testimony by
she concluded her
burglary, and
rape,
in 1976 of
convicted
telling
jury:
go
crying,
to bed
we
‘We
Commonwealth
App.
theft.
651-52.
very
my
up crying,
wake
it’s been
hard on
Pa.Super.
mind the defendant’s old who (hereinafter “Rompilla-2”). had come to court to ask the “not to *6 Third, pled kill Id. she for his father.” Rompilla petition then filed for writ mercy jury: you “I tell warned and corpus pursuant of habeas to 28 U.S.C. heart, my you this from the bottom of § in the 2254 United States District Court death, your a part order it will take of life Pennsylvania. for the Eastern District away. your your Don’t stain hands and Rompilla’s petition raised 11 claims. blood, do it souls with this man’s don’t Horn, Civ.A.99-737, v. No. please.” at 772. Id. (E.D.Pa. 2000).2 July WL deliberating, jury unanimously guilt After District Court denied relief as to'the aggravating phase granted found all of the circum- penalty three relief as to the (2) pending ap- on direct 1. While the case was Petitioner is entitled to relief from his peal, Rompilla petition filed a for a writ of conviction and death because of sentence corpus the United States habeas District improper the trial court’s instruction on Pennsylva- Court for the Eastern District of liability; accomplice petition nia. The District Court dismissed the (3) The trial court’s failure instruct the prejudice without for lack exhaustion. jury imprisonment” that "life means life Love, (E.D.Pa.). Rompilla v. No. 94-cv-4196 possibility parole, without after the even jury repeatedly parole eligibili- asked by 2. The District claims identified instead, ty; provision, and the trial court's Court were as follows: information, misleading of inaccurate and (1)Trial counsel were at the ineffective Sixth, petitioner’s Eighth violated and sentencing phase failing capital for in- rights; Fourteenth Amendment vestigate, develop present significant and (4) Petitioner is entitled to relief from his mitigating petitioner's evidence related to (d)(8) childhood, aggrava- alcoholism, death sentence because the traumatic tardation, mental re- ting unconstitutionally cognitive circumstance was impairment organ- and obtained; damage; ic brain phase plenary. based on its conclusion counsel Court’s decision is Duncan failing had been ineffective investi- Morton, (3d 189, 196 Cir.), v. 256 F.3d cert. Id. gate present mitigating evidence. denied, ordered at *14. The District Court thus (2001). However, L.Ed.2d 197 our review corpus habeas that a writ of would be of the of the decision Su con- granted unless Commonwealth preme Court is circumscribed the Anti- sentencing hearing ducted a new or resen- terrorism and Penalty Effective Death Act imprisonment. tenced to life (“AEDPA”). of 1996 Hartey See appealed, at *21. The Commonwealth (3d Cir.1999). Vaughn, 186 F.3d Rompilla cross-appealed. questions Three AEDPA, may Under a federal court (1) presented are on appeal: whether grant adjudicat habeas relief on claim Rompilla’s trial counsel was constitutional- ed on the merits in state court unless the (2) ly during penalty phase; ineffective adjudication trial whether the court committed constitu- giving accomplice tional error in an liabili- (1) resulted in a decision that was (3) instruction; ty whether the trial to, contrary or involved an unreason- failing jury court erred in to instruct of, application clearly able established imprisonment” Pennsylva- that “life under law, Federal as determined possibility nia law meant life without the States; United parole.3 or
II.
(2) resulted in a decision that was
based on an unreasonable
District
determina-
Because the
Court did not con-
evidentiary
hearing,
duct
our review of
tion of
in light
the facts
of the evi-
(5)
challenge
Petitioner is entitled to relief from his
and trial counsel's failure to
this
(d)(9) “signifi-
cause,
death sentence because the
sixth,
juror
petitioner’s
violated
history”
felony
aggrava-
cant
convictions
eighth
rights;
and fourteenth amendment
ting
unconstitutionally
circumstance
(9) Petitioner's death sentence should be
vague;
jury
did
instructions
not cure
arbitrary
vacated
"proportion-
because the
instructions,
vagueness;
this
ality
performed by
Pennsylva-
review”
all,
they provided guidance
the extent
*7
Eighth
nia
Court violated his
finding
aggravating
directed a
of this
cir-
Amendment and Fourteenth Amendment
cumstance;
rights;
(6)
Petitioner
entitled to relief from his
(10)
evidentiary
Petitioner is entitled to an
improper prose-
death sentence because of
hearing
prosecution
on his claim that the
argument
penalty phase;
cutorial
at the
process by introducing
violated his due
(7) Petitioner is entitled to relief from his
evidence;
misleading
false and
and
death sentence because the
court
trial
im-
(11) Petitioner is entitled to relief because
properly
prosecutor
allowed the
to read to
prejudicial
of cumulative
effects
errors in
inflammatory
prejudicial
and
this case.
testimony
prior rape
of the victim of a
Rompilla,
dence
proceeding.
attorneys
Rompilla claims that his trial
2254(d).
“contrary
§
Under the
28 U.S.C.
penalty phase.
ineffective at
were
2254(d)(1),
may
§
relief
be
to” clause
First,
alleges
attorneys
his
court arrived at “a
if the state
ordered
school,
failing
were
to obtain
derelict
to that reached
opposite
[the
conclusion
court,
prison
hospital,
records
if
question
on a
of law” or
Supreme] Court
IQ
reveal a number of
test results
differently
“a
court decided
case
state
mentally
range,
retarded
low achievement
on a set of
Supreme] Court has
than [the
scores,
special
education
placement
facts.”
materially
indistinguishable
classes,
neglect, problems
childhood
362, 412-13,
Taylor, 529 U.S.
Williams v.
alcohol,
Second,
and an alcoholic mother.
(2000).
1495,
Williams, 529 U.S. S.Ct. A. Cone, 685, 122 See also Bell v. represented by public Rompilla was two (2002) 1843, 1850, 152 L.Ed.2d defenders, Charles, Frederick- who was (“The is on whether the state focus Lehigh then the Public Defender for Chief clearly established application court’s *8 Dantos, a County, and Maria full-time as- unreasonable, objectively federal law is 1055-56, public App. sistant defender. un and we stressed Williams that an length 1059. Both testified at application reasonable is different from an hearing. For present purposes, PCRA one.”). Furthermore, incorrect a federal attorneys’ aspects preparation two of these court that presume “must the factual find penalty phase pertinent: for the are most ings of both state trial and courts appellate first, their efforts to obtain information Beard, are correct.” Everett v. 290 F.3d Rompilla’s schooling about childhood and (3d Cir.2002) (citing 28 U.S.C. and, second, 2254(e)(1)). § their communications with the may presumption This be professionals three mental health whom only by convincing rebutted clear and evi 2254(e)(1). § they dence. 28 consulted. U.S.C. I specifical- that ... remember explained [Dantos] Dantos
Both Charles ly talking one one and Rompilla going questioned had the defense anything you him. ‘Is there can tell family his about his numerous members of childhood, yourself. me schooling, background and me? Tell about Tell was, might your background.’ information that about She any had asked for know, sentencing. According you points. to cover helpful at meticulous however, Rompilla neither testimony, their Both App. 1303. Dantos and Charles said family even hint- any nor member himself nothing that in their discussions with Rom- Rompilla’s which problems at the ed suggested mentally ever that he was pilla Dan- assistance claim is based. ineffective retarded, id. at and Charles good developed that she had tos testified Rompilla elaborated that did not have diffi- that Rompilla, of trust with relationship culty understanding what was said him, to know gotten she felt that she had expressing feelings. him or in Id. at with that had a lot of discussions she 1393. who he was and his life.” Rompilla “about that Dantos and Charles also testified Rompil- asked App. 1163. When she school, recounted, Rompilla’s family provided members of no he told la about Dantos Rompilla problems, hint that had mental nothing there was unusual “[t]hat her abuse, had suffered child or was an alco- it.” Id. at 1197. Dantos also said about spoke holic. Dantos stated that she with specifically Rompilla that asked about she Rompilla’s siblings, his sister-in- that he three drinking responded and that he Rompilla, law Darlene and his ex-wife and it” and drank but “could handle sometimes “very that she had formed a close” rela- not an alcoholic. Id. at 100-01. On was her, family. App. with the 1065. tionship night killing, Rompilla told they had the im- She said that discussed three or four beers over he had consumed that no portance mitigation evidence but Id. at evening. course of the entire any useful information provided one had background. testi- about She had re- Charles added “spent fied that she had hours these background sponded questions about his members,” they had “discussed family nothing wrong: by saying that was dynamics [Rompilla’s] and what family anything happened? “Is there parents,” family relationship was with his growing up? Is like What no indication “that and that there was anything you there can tell us within the there was sort of abuse said, “No, help us?” And he could Likewise, family.” at 1097 she stated He was nothing wrong.” there was nothing exceptional pre- that “there it. It wasn’t very, very, smooth about drinking within the [her] sented that he was reluctant to talk about although family.” Id. Charles added said, He “Your conversa- anything. did not family members said of the death possibility tions about the spent he had know well because penalty bore me.” bars, family was many years behind so any- There was no indicator from information.” Id. at a “constant source of *9 thing he told us that would send us 1303,1384. searching any kind of records. and questioned repeatedly fine. He had Charles was everything He said was attorneys extensively by Rompilla’s There was noth- a normal childhood. look for of the defense to the failure
ing there.... records, battery to administer “a Reitan test to school, gist and medical and prison, strategy any as follows: if explained determine there was brain dam- Charles 4 a such as “the my age,” personality test investigate by asking- I would Personality Inven- client, your Multiphasic childhood? Minnesota “how you (“MMPI”)”,5 test,6 any problems tory and there Rorschach Were Any kind of abuse? IQ suffered? an test. Id. at 1323. He stated that he out? anything there sticks expected [I]s also that the results of this test- important or think whether it’s Don’t ing psychiatrists. would be available to us, and then just You tell we’ll not. professionals If the mental health whether or not we can use determine information, any needed records or other I way. it that Would Investigate it.” said, them, expected he he them to ask for somebody person’s ele- send provide to whatev- and he would have tried mentary to the teacher school to talk they sought. er Id. He said he also him they if remember from 25 to see thought profession- that the health mental years before. No. I didn’t years or 40 Rompilla they would and that als interview office.... have those resources would detect whether denial of 2,000 investigators two I had anything background unusual in his client, I will talk to the cases.... suspicious. seemed Id. at 1308-09. family, anything talk to the and see if All profes- three of the mental health developed from there. whom had Rompilla sionals to been sent inquiries provided Id. at 1293-94. If these hearing the defense testified at the PCRA any helpful, hint that records would be he in person by deposition. either or All added, go anywhere get he would they three stated that had examined Rom- records. Id. at 1307. nothing and had pilla found useful to the development of miti- respect With defense, stresses, Rompilla but as now all gation regarding Rompilla’s evidence men- that, three also testified had been condition, tal said that he had Charles sent provided with Rompilla’s school and other psychiatrist to “the best forensic records, they have done additional here, psy- tremendous [another] around testing. psycholo- chiatrist and fabulous forensic Cooke, experienced Dr. Gerald clini- gist” and that he relied on them to detect psychologist, longer cal and forensic no any problems might mental be useful possessed regarding records his examina- request to the defense and to of Rompilla tion other than the letter that provide defense them with records he sent to public had defender’s office they might App. need. 1307-08. He examination, completing after he elaborated that when he sent psychologist, expected psyeholo- percent” he “99 certain- able state with Sloane, Battery organic 4. “The Reitan measures im tests.” Richard The Sloane-Dorland Dictionary variety pairment means of a of exercises Medical-Legal —1992 Annotated concentration, coordination, testing memory, (1992). Supplement control, motor abstract abilities and other cognitive physical functions.” Barker projective psycho- 6.The "a Rorschach test Services, Secy. Health and Human 882 F.2d logical subject in which the reveals his [test] (9th Cir.1989). attitudes, emotions, personality by or her reporting what is 10 inkblot seen each of Multiphasic Personality 5. The Minnesota In- pictures.” Stedman's Medical Dictionary ventory or "MMPI” is the best "one of known (27th ed.2000). widely personality used assessment *10 said, it fair that done in a case of to infer he had found ty he would have what In a pen- at 1797. death Id. at type. App. mitigating that no evidence. 1859. case, ques- that one of the alty he testified Gross, psychiatrist, A Paul K. second in his mind would have been whether
tions that also testified he had examined Rom- illness, any “showed mental the defendant trial at pilla prior request to his disturbance, or other sorts of emotional Public Defender’s office to determine his psychological problems might that mental status at the time but was not mitigating App. circumstance.” 1808. mitigating App. asked to look for factors. MMPI, have administered an He would 1504, 1506, 1549. Dr. that Gross stated Blank,7 the Ror- Incomplete “an Sentence child, Rompilla by “denied abuse as technique, and two or three schach inkblot parent.” According either Id. at 1517. of the Wex- subtests of the verbal subscale Gross, Rompilla Dr. said that he had “a Intelligence Adult WAIS Revised.”8 ler good relationship his father” with Dr. testified that he Id. at 1797. Cooke “fairly except normal childhood for the fact IQ have knew that the test that he would school, that he didn’t like which he left in Rompilla pro- had not administered grade.” the ninth Id. at 1517. Dr. Gross’s mentally retarded duced a score that, time although conclusion because, event, range in that he would there was some evidence of antisocial be- Id. at 1810. He given have further tests. havior, no other evidence for “[t]here was a re- explained prepared that he had not underlying psychiatric or mental disorder.” regarding his examination because it port at 1540. that Id. He added he did not see of an practice was his to discuss the results him anything the materials shown to at- orally referring with the examination Rompilla’s attorneys hearing at the PCRA torney attorney to leave it to the opinion. that would have Id. changed prepare he a re- decide whether should reported at 1539-40. Dr. Gross also that port. interpreted Id. at 1816. He it, although Rompilla denied there was a letter that he wrote this case to mean possibility that he could violent become that anything that he “didn’t have felt [he] while under the influence of alcohol. helpful.” could be proceedings, Rompilla pre- In the PCRA Sadoff, experienced Dr. Robert family testimony sented of three members: psychiatrist, also board-certified forensic sisters, and Randi two Barbara Harris had no records about but testi- Rompilla, who testified were type in a he fied that case of would sentencing, and Nich- interviewed before compe- have examined the defendant for had testified at the Rompilla, olas who trial, tency criminal responsibility, to stand family mem- sentencing hearing. These App. mitigating circumstances. stated, among things, other their bers questioned He ob- 1859. alcoholics; that their mother parents were served the defendant and would have re- Rompilla; pregnant drank while quested psychological testing thought he physically their father was abusive necessary. it was Id. From the letter mother; Office, to the Public Defender’s he children and their he sent Intelligence Incomplete WAIS Re- Blank 8. Wechsler Adult 7. The Rotter Sentences maladjustment providing the be- general Test tests vised is a test that measures intelli- ginning (e.g., “My of sentences 'T feel gence in adults. Medical Dictio- Stedman's ...") completed by nerves that are the sub- nary, supra, ject. www.cps.nova.edu/cpphelp/ROT- See TER.hrml. *11 (1984), dog pen; requires proof perform- of deficient in an outdoor and was locked court stupid prejudice. App. told he was and ance and 2027. The Rompilla that that cases em- anything and was then observed would not amount kept everything ploy three-pronged child who test: very nervous that during testified inside. Nicholas First, a defendant must demonstrate he was asked interview pre-sentencing arguable that his claim is of merit. In prior months to the only about the three requirement the event this threshold Rompil- not asked about and was offense satisfied, a defendant must show 1467-71, 1462-63, App. la’s childhood. that counsel had no reasonable basis 1477-78. question. for the act or omission presented evidence from Rompilla also Finally a must establish defendant L. Armstrong and psychologists, two Carol omission, for counsel’s act or but Crown, had evaluated Barry both of whom proceedings the outcome of the he was Rompilla and tested after convicted have been different. psychologists’ These eval- and sentenced. App. (quoting v. Commonwealth neuropsychological test- uations included (1995)). Buehl, 540 Pa. A.2d 771 school, medical, Rompilla’s ing, review of standard, Applying this the PCRA court records, post- and review of prison and concluded that satisfied the first by declarations Barbara Har- sentencing prong because he was “entitled to have
ris, Rompilla, and Nicholas Rom- Darlene infirmity” information of relevant mental pilla. psychologists stated presented jury, the court held IQ achievement test results docu- low and prong that the second was not met because records, Rompilla’s school mented pro- “counsel had a reasonable basis history, and his abusive medical back- ceeding they during penalty did flags” indicating all “red ground were phase.” App. 2028. The court made the necessary. objective evaluation was further following findings: 1692,1739,1743. App. at Sadoff, “recognized Drs. Cooke and are Armstrong opined and Crown Drs. experts psychiatry the field of organic brain dam- Rompilla suffers psychology.” signif- mental disturbance age, an extreme cognitive of his icantly impairing several tests, experts “These administered They expressed the view that functions. Rompilla, reported evaluated Mr. problems relate back to his Rompilla’s back to defense counsel.” likely caused and were fetal childhood They organic damage” found “no brain they concluded syndrome, alcohol “nothing that could be used capacity appreciate the crim- Rompilla’s mitigation.” inality of his conduct or to conform his They diagnosed Rompilla as a “socio- substantially im- conduct to the law was path,” and this evidence “would not the time of the offense. paired at See Rompilla’s have been of benefit to Mr. Br. at 58-61. case.” B. attorneys provided The defense Drs. evaluating ineffective as- Cooke and Sadoff “with whatever for,” claim, the PCRA court asked and Drs. Cooke and Sadoff sistance of counsel un- Washington, request did not the records later noted Strickland L.Ed.2d 674 earthed PCRA counsel. *12 appeal, Trial counsel “also obtained an evalua- On the Gross, respect- Dr. Paul tion well Court also held that Rompilla’s ineffective Valley psychiatrist,” and Dr. Lehigh ed assistance claim lacked merit. The Court nothing “found Gross agreed with the PCRA court “that trial penalty phase.” in the been beneficial respect counsel was effective with to their provide not trial counsel Rompilla did investigation presentation and of mitigat- “any prob- indication of mental ing Rompillar-2,- evidence.” 721 A.2d at any- lems or alcoholic blackouts” or Noting that “trial employed counsel thing “particularly else was use- experts three Appellant” to evaluate ful.” experts that “the nothing helpful found to “spoke Trial counsel with members of case,” Appellant’s the Court added: “[W]e manner,” family in a detailed agree with PCRA court that under the family family did not -reveal the case, facts of this reasonably counsel relied background information adduced in the upon Appellant their discussion with proceeding. PCRA upon experts their to determine the rec- family testimony The members’ at the ords needed to evaluate his mental health hearing PCRA was not credible insofar and other potential mitigating circum- “attempted as it to contradict what de- stances.” Id. fense counsel indicated was asked of proceeding, the habeas the District during them numerous communications only Court not disagreed with the deci- prior to trial.” sions of the PCRA court and the state
App. 2028-2029. supreme court on the ineffective assistance on findings, Based these the PCRA con- issue, but the District Court found that cluded: those decisions were unreasonable. Rom- “Given the fact that [the] three health However, pilla, 2000 at *14. WL professionals care trial [retained the Court stated that its decision “a was counsel], experienced all of whom were very close call ... trial because counsel experts, provided forensic had opinions performed admirably so according my to ..., and none of them asked for more review record” and further com- information, hardly it was unreasonable mented its review the record re- or ineffective for defense to counsel intelligent, vealed that “trial counsel were upon opinions.” have relied their diligent and repre- devoted their task of Trial counsel was not ineffective *8, senting [Rompilla].” Id. at *12. questioning family members because
family questioned “in District members were Court found two omissions manner,” contrary detailed opinions testi- of the PCRA court and the mony reject- First, at the hearing supreme PCRA state court. the District stated, ed. prior opinions Court lacked “an (cid:127) in depth analysis duty to inves- what “Defense counsel was reasonable be- tigate consists of a case of this nature.” lieving only avenue available particular, Id. at *8. In the District Court them was to ask the to show mer- “in- cy failing faulted the state courts for upon Rompilla.” Mr. “Under the case, clude a reference to the ABA strategy circumstances of Standards this this Second, one, only not for Criminal Justice.” Id. the Dis- appropriate reasonably opinions trict found the state court one available to Court failing counsel.” for alcoholism. deficient discuss test is Observing appeared that it “The ineffectiveness not at *8. more; counsel could have done rely whether they could “thought trial counsel required. Nor is test perfection gen- [Rompilla’s] to determine experts the best defense attor- whether criminal ability capacity,” or eral mental neys might have Instead done more. me on balance that seems to opined: “[I]t test is whether what did was [counsel] obliged go bit counsel] were [trial *13 range pro- the ‘wide of reasonable within duty investigate.” to fulfill their farther ” Thomas, fessional assistance.’ Waters v. *9, Concluding *12. that trial coun- at (11th Cir.1995) (en 1506, 46 F.3d 1518 penalty phase performance at the had sel’s banc) Strickland, 689, (quoting 466 U.S. inadequate and that been had 2052). Ultimately, the issue 104 S.Ct. is held that Rom- prejudiced, been the Court appropri- conduct “prudent not what is or entitled relief with pilla was to habeas ate, constitutionally what com- but is *14. to his sentence. Id. at respect 776, 794, pelled,” Burger Kemp, v. 3114, (1987)
107 638 S.Ct. 97 L.Ed.2d IV. Cronic, v. 466 (quoting United States U.S. 38, 648, 2039, 665 n. 104 80 S.Ct. L.Ed.2d prec- Supreme is the Court Strickland (1984)), and 657 the Sixth Amendment governing edent ineffective assistance ... “simply that criminal defen- ensure[s] Williams, claims, 529 U.S. at counsel Strickland, trial,” a fair dants receive 466 391, 1495, and in order to show 689, 104 2052. See S.Ct. also Strickland, ineffective assistance under a Gilmore, F.3d Kokoraleis 131 696 (1) defendant must demonstrate Cir.1997) (“The (7th amendment sixth does “representation fell below an counsel’s guarantee not success or entitle defen- reasonableness,” objective standard to the best or dants available counsel Strickland, U.S. at S.Ct. prudent strategies.... most Con- [T]he (2) 2052; a “there is reasonable lawyer is stitution satisfied when that, probability unpro- but for counsel’s a professionally competent chooses strate- errors, pro- fessional the result of the that secures for gy the accused benefit ceeding would different.” Id. have been trial.”) of an adversarial scrutiny S.Ct. 2052. “Judicial performance high- of a must be counsel’s V. deferential,”
ly
“every
effort [must]
appeal,
In this
con-
the Commonwealth
distorting
be made to
ef-
eliminate
reasonably
tends that the
ap-
state courts
cir-
hindsight,
fects of
to reconstruct
plied the Strickland ineffective assistance
challenged
cumstances of
con-
counsel’s
to the
standard
facts of this case. Accord-
duct, and to
conduct from
evaluate the
Commonwealth,
ing to the
the District
perspective
counsel’s
at the time.” Id. at
by essentially considering
Court erred
a ‘strong
second, supreme petitioner the state court’s satisfaction of the habeas because or the court) “contrary to” federal decision is Strickland. We irrelevant. arguments
discuss each of these
below.
statute,
Under the
previ
habeas
noted,
ously
if a claim
“adjudicated
A.
merits”
a state court proceeding,
Rompilla argues
that the
may
granted
relief
adjur
“unless the
did not
render
“decision” dication of
the claim
resulted
on his Sixth Amendment claim because
to,
contrary
decision that was
or involved
*14
opinion
Court’s
lacks
“[t]he
of,
application
an unreasonable
clearly es
any
analysis.”
real Sixth Amendment
Rom-
tablished
Federal
law.”
28 U.S.C.
pilla
Br. at
criticizes the
added).
§ 2254(d)(l)(emphasis
“adju
An
supreme
applying
state
court
dication on the merits” “has a well settled
three-pronged test set out in its
eases
own
meaning:
finally
a decision
resolving the
two-pronged
than
rather
Strickland
claims,
parties’
judicata effect,
with res
relationship
test.
Id. He contends that the
that is based on the
claim
substance
three-part Pennsylvania
between the
for-
advanced,
procedural,
rather than on a
or
mulation and the Strickland test
is “not other,
Kuhlman,
ground.” Sellan v.
261
clear,”
supreme
and he faults that state
(2d Cir.2001).
303,
F.3d
311
See also Neal
supposedly failing
court for
to address ei-
Puckett,
Cir.2002)
230,
(5th
v.
286 F.3d
235
prong
ther
of the Strickland
Id. at
test.
(“adjudication ‘on the merits’ is a term of
supreme
98-99. He asserts that the state
art that
disposi
refers to whether a court’s
mistakenly thought
court
that his federal
tion of
opposed
the case was substantive as
claim was that trial counsel did not con-
denied,
to procedural”), cert.
537 U.S.
all,
any investigation
duct
whereas his 1104,
963,
123 S.Ct.
tion.
Id. at 100.
he criticizes the
—
(3d Cir.2002),
denied,
605-07
cert.
U.S.
supreme
failing
state
court for
“to render
1914,
—,
248 Chadwick, “any greater protection” F.3d at ex vide or lesser
er. 606. We than if an examination of a state the Sixth Amendment. plained that Common Pierce, wealth v. Pa. court reveals the state court A.2d opinion (1987). put a federal claim the mer it in did not 976-77 As we Werts v. decide (3d its, Cir.2000) Vaughn, standards of review set the deferential 228 F.3d 2254(d)(1) apply. denied, § do not Id. at out in cert. (2001), But if the state court
605-07.
decided
the Pennsylvania
L.Ed.2d 483
2254(d)(1)
claim,
govern—
§
standards
Supreme
“opined that
Court has
the Penn
regardless
length, comprehensive
of the
sylvania
judging
standard
ineffectiveness
ness,
of the state court’s discus
quality
or
claims
identical to the
[is]
ineffectiveness
Sellan,
also
Dep’t
278 F.3d
1255
of
had no reasonable basis for
act
the
or
(11th Cir.2002) (section 2254(d)(1) “focuses
Rompilla-2,
omission in question,”
721
result,
on
on the reasoning
the
not
that led A.2d at
not been
789—had
met because
result”)
denied,
to the
cert.
Rompilla’s
reasonably”
trial “counsel acted
(2003).
1511, 155 L.Ed.2d
225
S.Ct.
respect
investigation
“with
to their
Here,
abundantly
presentation
it is
mitigation
clear
of
evidence.” Id.
adjudicated
the
court
Rom
at 790.
supreme
prong
state
of
second
the state
pilla’s
Amendment claim
substantively
on the mer
formulation is
indistinguish-
Sixth
supreme
its.
the state
Although
prong
court re
able from
first
of
the
Strickland—
three-pronged
ferred
own
requires
showing
to its
ineffective which
that counsel’s
“representation
test
rather
than
two-
an objective
assistance
fell below
test,
Strickland,
pronged
Pennsylvania
standard
Strickland
of reasonableness”.
explicitly
has
Rompilla
held that the
What we have said about the relation-
important.
most
Because the state su-
ship
Pennsylvania
between the
formulation
in
preme court
this case rendered an “ad-
of the test for ineffective assistance and
judication
on the merits” of
formulation
the Strickland
is sufficient to
claim, Rompilla’s criti-
Sixth Amendment
dispose Rompilla’s
criticism of the state
supreme
failing
opinion
court for
to discuss
cisms of the state court’s
cannot
Strick-
outcome,
whether,
Strickland,
per-
determinative factor in the "deficient
not
as stated in
prong
analysis
formance”
of the Strickland
in
probability
there is a reasonable
of a different
v. Ful-
Strickland,
least some contexts. See Parrish
records] B. regard expert evaluations.” Rom- original). pilla (emphasis Br. at similarly no merit in Rom There is essentially challenging the Rompilla is the decision of the pilla’s contention applied state court manner which the “contrary to” court supreme state facts, argu- and thus this the law to the “identify not because did Strickland under the “unrea- analyzed ment must be Amendment standards.” apply actual Sixth 2254(d)(1). § application” clause of sonable is “con at 101. A decision Rompilla Br. Williams, See 529 U.S. if holding trary to” a (a state court deci- “run-of-the-mill governing law state court “contradicts “in accord with Strickland sion” cases” Supreme Court’s] forth in [the set prerequisites for establish- legal as to the if it “confronts a set of facts are or may claim ... ing an ineffective-assistance from a deci materially indistinguishable contrary concep- court’s to the federal Supreme] Court and neverthe sion of th[e ought applied to be tion how Strickland at a result.” [different] less arrives contrary particular in that case” but is not 405-06, Williams, itself). reasons, For these to Strickland reject Rompilla’s arguments under the we case, applied the critical standard this 2254(d)(1). § “contrary to” clause of trial supreme court —whether the state basis for the counsel had a “reasonable question” not VI. or act[s] omission[s] —did rather, as we contradict Strickland appli- turn to the ‘unreasonable We now explained, entirely consistent 2254(d)(1). § cation’ clause of To obtain Vaughn, In Werts v.
with Strickland. clause, Rompilla relief under this 202-04, noted, compared F.3d at we must do more than show that he Pennsylvania’s test ineffective-assistance would have satisfied Strickland’s test Strickland, with the test enunciated analyzed being his claim were we found that a state court decision that instance, because under first apply applied the test did *17 2254(d)(1), § enough it is not to con- a rule of law that contradicted Strickland that, habeas court vince a federal “contrary to” and was thus not established judgment, the state- independent its Id. at 204. In Supreme precedent. Court in- applied court decision Strickland case, applied court the instant the state Rather, correctly. he must show that here, Accordingly, the same state test. applied Strickland [state court] Werts, application the state court’s objectively in an the facts of his case that test does not mean its decision is manner. unreasonable “contrary to” established precedent. (citation omitted). Bell, 122 at 1852 words, Rompilla must demon-
Rompilla
argues that the state court
other
also
decision,
court
evalu-
contrary to
because
strate that “the state
decision is
Strickland
merits,
records,
objectively and on the
result-
counsel’s failure to obtain
without
ated
records,
reasonably
in an outcome that cannot
knowing the contents of the
“can-
ed
” Werts,
justified
strategy/tac-
under Strickland.
not be deemed
reasonable
”
law,
tic,
F.3d at 204.
as a matter
Amendment
Sixth
ground
We hold
Su
mental condition did not fall
trial
preme
conclusion that
counsel below the Sixth Amendment floor.
Court’s
reasonably
acted
and rendered effective
Rompilla
many aspécts
criticizes
of trial
appli
was not an unreasonable
assistance
performance
counsel’s
the penalty
findings
cation
Strickland.
phase,
ground
but we see no
for relief
testimony
PCRA court and uncontradicted
under the
Rompilla
habeas statute.
faults
hearing
at the PCRA
establish that trial
trial attorneys
failing
for
to interview
investiga
counsel conducted an extensive
two sisters who
testified
the PCRA
mitigating
According
tion
for
evidence.
Harris,
hearing
the oldest of
—Barbara
testimony,
got
their
trial counsel
to know Rompilla’s siblings, and Randi Rompilla,
Rompilla
during the course of their
well
youngest.
the second
But trial counsel did
good
and established a
rela
representation
interview three
siblings, including
other
ques
him.
tionship
Rompilla
years
two who were a few
older than Rom-
background
provided
tioned about his
but
(Nicholas
pilla
Rompilla and Sandra Whit-
Trial coun
no useful information or leads.
by) and one
Rompilla,
Robert
who was
spoke
sel also
to three of
sib younger. At
siblings
least some of the
lings, as well as a sister-in-law and Rom who were interviewed must have been
pilla’s
Family
ex-wife.
members were
family
aware of the lurid conditions in the
manner,”
questioned “in a detailed
but
portrayed
home that were
at the PCRA
they
any
of the new
did
allude to
hearing,
any-
never mentioned
proceed
evidence adduced
the PCRA
thing about
these matters
trial counsel
ing.
“in
despite being interviewed
a detailed
constitutionally
manner.” It was thus not
well-quali-
Trial counsel retained three
ineffective for trial counsel to fail to antici-
experts
fied mental health
to examine
pate that interviewing Barbara Harris or
Cooke,
Rompilla. Dr.
a psychologist, testi-
Rompilla
yielded impor-
Randi
would have
that in a
type
fied
case of
he would
this
tant new
family
information about
mitigating
have looked for
evidence and
home.
tests,
performed
battery
would have
including
IQ
test. Based on his letter
also criticizes his trial attor-
office,
to the Public
neys
allegedly failing
sufficiently
Defender’s
he conclud-
to ask
Rompilla’s IQ
ed that
specific questions
interviewing family
test must not have
when
allegedly failing
shown mental
and that his members and for
to ask
retardation
any
evaluation must not
revealed
Nicholas Rompilla
period
ab-
time
normalities that would
useful in
have been
other than the three and one-half months
Sadoff,
showing mitigation.
a.psychia-
just
argument
Dr.
This
before
murder.
trist,
by findings
interviewed
and evaluated
defeated
of fact made
factors,
presence mitigating
him for the
state courts. The PCRA found that trial
*18
Dr.
“spoke
family
but
Sadoff inferred that he also found
counsel
with members of the
A
nothing
psychiatrist,
App.
useful.
second
Dr.
in a detailed manner.”
2028. The
Gross,
similarly
rejected
retained
court
Nicholas Rom-
also
but
PCRA
also
nothing
testimony
found
useful.
of this
pilla’s
view
rec-
insofar as
contradicted
ord,
say
we
cannot
“what defense counsel indicated was asked
unreasonably
...
applied
during
prior
numerous conversations
concluding
Testimony
Strickland in
trial coun-
trial.”
at the
to
investigation regarding mitigating
hearing supports
findings.
sel’s
ev-
these
PCRA
(“I
See,
relating
Rompilla’s family
e.g.,
idence
to
back-
id. at 1303
remember [Dantos]
allocation of his office’s resources.
by
talking
and
to
sound
one
one
going
specifically
Id. at 1293-94.
anything you can tell me?
there
him.
‘Is
by about
yourself. Tell
Tell me
provides a reasonable
explanation
This
was,
know,
you
She
background.’
your
to
basis for counsel’s decision not
seek
The state
points.”).
cover
meticulous
permitted
counsel was
records. Defense
presumed
must be
findings
by
courts’
their client
rely
on statements made
not rebutted
correct,
Rompilla
investiga-
has
deciding
and
on the extent of
“by
convincing
particular
tion that should be conducted
clear
presumption
Strickland,
2254(e)(1).
areas.
§
See
We
28 U.S.C.
evidence.”
(“The
reasonableness
re-
reject Rompilla’s argument
accordingly
or
may
counsel’s actions
be determined
interviewing
family
mem-
garding the
substantially
by
influenced
the defendant’s
bers.
actions.”);
or
id.
own
statements
trial counsel
contends that
(“[W]hen
given
has
counsel
defendant
school, medical,
sought out
should have
in-
pursuing
certain
reason to believe
records,
argu-
prison
but this
police, and
vestigations would be fruitless or even
meeting the AED-
falls short of
ment also
harmful,
pursue those
counsel’s failure to
benefit of hind-
PA
With the
standard’.
investigations may
challenged
not later be
these records contain
sight, we know that
unreasonable.”).
in-
As noted counsel’s
Rompilla’s child-
useful information about
with
terviews with
himself and
environment,
prob-
mental
his
hood home
family
provided
members
no indication of
alcohol,
lems,
problems
and his
childhood or mental
Rompilla’s abusive
grounds
believing
had
Thomas,
trial counsel
problems. See
253
conduct.”)
denied,
1123,
problems
525
119 other
and failed to inform or
cert.
(1999).
907, 142
provide
experts
905
with the information.
L.Ed.2d
S.Ct.
Calderon,
1223,
Caro v.
165 F.3d
1228
See
unreasonable for tri-
It was likewise not
(9th Cir.1999) (“A lawyer who knows of
health
rely
on its mental
al counsel
expert
does not inform his
witnesses
but
any
there was
to detect whether
experts
pieces
of information
essential
mitigating
evi-
pursuit
for further
basis
going
mitiga
heart of the case for
con-
to their client’s mental
relating
dence
tion
function as ‘counsel’
does not
under
no fewer
Trial counsel retained
dition.
Amendment.”)
denied,
the Sixth
cert.
sub
experts. Dr.
highly qualified
than three
nom,
Caro,
1049,
v.
527 U.S.
119
Woodford
any
looked for
evi-
Cooke and Dr. Sadoff
(1999).
2414,
within the wide of reasonable he felt was called for. Id. at 1808-09. He fessional assistance. stated that the results of some of those Furthermore, permissible it was for provided tests had a reason to do a “neu- test,” ropsyche Charles to consider his office’s limited in- he would have done so. Id. Thus, vestigative determining resources at 1809. inis effect fault- investigation ing attorneys extent of the that should failing his trial to instruct respect expert conducted with child- to do a expert test hood, family, apparently and mental condition. See did not think was warranted (4th Weldon, McWee v. 283 F.3d under argument the circumstances. This Cir.2002) (“the reasonableness of an much inves- demands more than the Sixth tigation ... in light requires. must be considered of Amendment
255 attorneys impacted for have on state of [the defendant’s] criticizes his trial Rompilla Thus, Dr. failing to educate Sadoff allegedly mind at the time.” Id. Dr. Sadoff meaning mitigating of evidence. about the say thought not that mitigating did he Dr. snippet a of Sadoffs testimo- on Based evidence had to be evidence “about the suggests Dr. Sadoff ny, Rompilla Rompilla (emphasis offense.” Br. at 87 “mitigating evidence was lim- thought removed). Rather, original he said that itself,” ited to evidence about offense mitigating evidence that he had used in 1874), (citing App. Br. at 87 Rompilla past something evidence law, any- “mitigation under the whereas impact had an mind at the defendant’s serve as a basis for thing ‘might App. apparent the time. It is not 1874. than and need ‘not sentence less death’ likely that mental health evidence is to be cul- specifically defendant’s] to [the relate purposes if it persuasive mitigation ” committed.’ for the crime he pability any had on a murder- impact cannot have (quoting Skipper Br. at v. Rompilla 88 er’s mind at the time of offense. Carolina, 1, 4-5, 106 S.Ct. South important, and most even assum- Third L.Ed.2d, (1986)) 1669, 1 and (emphasis 90 ing argument for the sake that Dr. original). There are at least brackets range of the understanding Sadoffs argument. weaknesses this three mental health evidence that can be miti- First, Dr. back- light of Sadoffs narrow, gating unduly we see abso- experi- included extensive ground —which lutely no reason to believe that Dr. Sa- relating justice system ence criminal understanding contributed in doffs 1876-1892) (see is far from clear App. —it way conditions to his failure detect the obli- that trial counsel had constitutional ar- now claims. meaning him on the gation to brief gues organic that he “suffers from brain Second, it also is exculpatory evidence.12 damage, including damage to the frontal accu- Rompilla’s argument clear that parietal lobes and area” and that these rately represents what Dr. Sadoff said. impairments, among things, prevent other attorney by Rompilla’s PCRA Asked “adequately controlling] him from and was mit- thought he that evidence whether behavior,” “emotions,” and guid[ing] his only “if it relates to the defendant’s igating He ar- “impulses.” Rompilla Br. at 58. time of the commis- state of mind at the “substantially gues that these conditions offense,” Dr. answered: sion Sadoff crimi- impair[] capacity appreciate “It to that and the kind person relates ” nality conduct to the of conduct or conform added). App. (emphasis .... he is Id. at 96. Accord- requirements of law.” past continued that he had not He impairments surely would ingly, these nothing material that had “used irrelevant time of “impacted” his mind mitigating to do with the crime itself as fall squarely murder and thus something It had to be that would the Scanlon factor. Pitts, See, e.g., Jersey previous- capital New v. had cases. 12. Both Drs. Sadoff and Cooke 580, 1320, (N.J. See, proceedings. e.g., 116 N.J. 562 A.2d 1325-27 ly testified in criminal Cooke); Green, 138, (3d 1989) (Sadoff v. Commonwealth v. 544 144 United States F.2d 1075, Aulisio, 84, 1976) (Sadoff Cooke); A.2d 1087 Jersey 514 Pa. 522 Cir. New v. 384, 1022, (1987) (Cooke); Zola, Terry, v. 513 Commonwealth 112 N.J. 548 A.2d 1030 381, 398, 405, (1987) (Sadoff Cooke); (1988) 409 v. Pa. 521 A.2d Commonwealth Comitz, 473, (Cooke); Whitney, v. 511 Pa. Pa.Super. Commonwealth 365 530 A.2d (1986) (Cooke); (1987) (Sadoff); v. 512 A.2d 474—75 Commonwealth Stark, (1987) Terry, 501 Pa. Pa.Super. Commonwealth A.2d Cooke). (1983) (Sadoff (Sadoff). They previously testified in A.2d 676 had also scope mitigating mitigation argu- of the sort of alcohol-related within the ment that trial counsel could have Dr. Sadoff referred. made *22 evidence to which obtaining previously without discussed attorneys that his trial Rompilla argues namely, that in- Rompilla was so records — they did not ask were ineffective because toxicated at the time of the mur- Scanlon mitigating Dr. for evidence. Gross to look judgment impaired— der that his was 1535-36, (citing App. Br. at 65 particularly would not have been compel- 1545). However, Drs. and Sadoff Cooke Moreover, ling. support while evidence to specifically mitigating for evi- did look available,13 argument argu- this was dence, scope and the of Dr. evalua- Gross’s ment would have to been with- have made encompassed mitigating tion at least some support testimony out the from Rompil- “I looking evidence. He stated: was to la, who did not take the stand at either doing, see if he what he was whether knew phase of the trial and denied intoxication suffering psychi- he was kind of problems. say or alcohol cannot We disorder, may atric whether he have been objectively it was for unreasonable trial intoxicated, exactly what his emotions and put counsel not to on such a defense. processes In cognitive App. were.” 1506. Finally, Rompilla argues that the Su what Drs. light of Cooke Sadoff were preme in Wiggins Court’s recent decision did, asked to do and fact trial counsel’s — Smith, —, to Dr. Gross do not instructions show (2003), L.Ed.2d shows that his trial counsel were ineffective. attorneys trial unreasonably conducted an investigation potential abbreviated miti Finally, Rompilla argues that trial coun- factors, gating sharp but there is a con in failing sel were ineffective to do further attorneys trast between the conduct of the investigation relating Rompilla’s alcohol in Wiggins and those in this case. explains exactly use. never what Wiggins, attorneys the trial claimed that mitigation argument alcohol-related he be- they made a tactical pres decision not to made, attorneys lieves his trial should have ent mitigating evidence but to pur instead but he refers to information suggesting strategy sue the alternative attempting history there of alcohol-abuse in prove than someone other the de alcoholic, Rompilla family, that he is an actually fendant killed the victim. that his alcoholism was caused trau- Accordingly, 2533. they made little effort childhood, matic that he suffers from alco- investigate the defendant’s background blackouts, hol-induced and that in- he was although they had reason to believe that night toxicated on the of the murder. investigation such an would have been While these can elements be woven into an fruitful. mitigation argument, attractive most of the
elements are based on information Supreme found defense not, records that trial counsel was for the investigation counsel’s of their client’s explained, constitutionally reasons we have background entirely was based on pre- obligated to (PSI) obtain. This includes evi- investigation report sentence drinking dence of Rompilla family, City documents from the Baltimore De- Rompilla’s home, (DSS). abusive childhood black- partment of Social Services Id. at outs, Although alcoholism. funds were available for out, Rompilla points police reports 13. As incoherent around the time of the offense.” "Rompilla the Scanlon case indicated that Rompilla Br. at 92. drinking heavily was and was intoxicated and facts, Faced with these history social preparation objectively that it unrea- Court held was defendant, not commission counsel did conduct a fur- sonable for counsel not to But even the Id. at 2536. report. such a investigation mitigating ther evidence that counsel reviewed limited documents background. Id. at regarding Wiggins’s that should contained information that “any 2541. The Court reason- stated expanded that an investi- alerted counsel ably competent attorney” would have real- background client’s into their gation necessary ized follow evidence. The likely yield mitigation *23 leads in the and documents be- PSI DSS spent had reported that the defendant PSI among potential a choice de- making fore and childhood foster care most of his fenses. Id. at 2537. The Court stressed describing as his quoted the defendant that uncovered no evidence in “counsel Id. at 2536. “disgusting.” background ... investigation suggest their to that fur- disclosed that the defen- The DSS records investigation ther would have been fruit- alcoholic; was a chronic dant’s “mother also.emphasized that less.” Id. The Court from foster home Wiggins was shuttled require Strickland does not counsel in- displayed some emotional foster home and vestigate every mitigat- conceivable line of there; frequent, he had difficulties while ing unlikely evidence no matter how and, school; on lengthy absences would to assist the defendant at effort occasion, him his mother left and least one Instead, the reiter- sentencing. Id. days without food.” siblings his alone investigate not to ated that decision “[a] Id. at 2537. ... for reason- directly ‘must be assessed ” nevertheless Wiggins’s trial counsel ableness in all the circumstances.’ Id. moved Strickland, to follow these leads. Counsel failed 466 U.S. at (quoting 2052). trial penalty phase so for bifurcation S.Ct. attempt to show that they
that
could first
There are critical differences between
kill
victim
client did not
them
Rompilla’s
and
Wiggins’s
the conduct of
then, if that defense was
own hand and
attorneys were
attorneys. Wiggins’s
trial
rejected,
mitigation.
evidence in
Id.
offer
“any reasonably
presented with leads
denied,
at 2532. When bifurcation
attorney” would have realized
competent
reference in
counsel made a brief
defense
attorneys had
promising. Rompilla’s
were
opening to the defen-
penalty phase
her
Wiggins
leads.
described
comparable
no
life” but “introduced no
dant’s “difficult
“disgusting”; Rompilla
his childhood as
history.”
life
Id. And
[his]
evidence of
Wig-
“normal.” In
insisted that his was
evidence
although
proffered
counsel
some
Wig-
postconviction interviews with
gins,
if the
have been introduced
that would
of his fami-
gins himself and with members
allowed, no evidence
had been
bifurcation
ly produced evidence of severe abuse.
family
history
life
or
case,
of the defendant’s
Rom-
present
at 2542. In the
was included.
Id. After
background
client
attorneys interviewed their
pilla’s
death,
new
family
defendant was sentenced
members in detail
and numerous
of a
preparation
counsel commissioned the
but discov-
penalty proceeding
before the
history.
Wiggins’s
at 2532. A social work-
mitigating
social
ered no
evidence.
family
mem-
no evidence in their
Wiggins
attorneys
interviewed
“uncovered
er
documents,
further
bers,
investigation
suggest
additional
obtained
have been fruitless.”
physical
investigation
would
compiled evidence
severe
attorneys
trial
had
mother.
Id. at
Id. at 2537.
by Wiggins’s
abuse
sexual
suggested
body
of evidence
investigation
Rompilla’s family
further
into
recommend further evaluation
promis-
as a
ing
Instead,
strategy
for the
background
produc-
have been
defense.
he
merely said that “no definitive conclusions”
Rompilla’s attorneys
tive. Not
did
should be drawn
possibility
about this
un-
evidence,
probe
mitigating
their client for
less there
awas
further evaluation. And
interviewed numerous members
finally, it should be
noted
he referred
family, including siblings
of his
who brack-
(a
to a further “evaluation”
term that sug-
him in
At
age.
eted
least one of these
gests
psychiatric examination),
not an
siblings,
Rompilla,
Nicholas
later revealed
“investigation.” Rompilla’s brief repeated-
that he knew about the conditions in the
ly uses the
“investigate”
appar-
term
in an
relies,
home which
now
but he
attempt
suggest
ent
that Dr. Gross
provided
never
information to trial
recommended that trial counsel search for
counsel,
although
he now claims that
evidence such as the records discussed
trial
never
him
counsel
asked
above. The use of this term obscures the
period of time other than the
im-
months
fact that trial
precisely
counsel did
what
*24
murder,
mediately preceding the
the Dr.
Gross recommended:
had Rom-
testimony
PCRA court found that this
was
further, i.e.,
pilla “evaluated”
examined
not believable.
psychiatrist,
another
Dr. Sadoff.
short,
In
attorneys Wiggins
did
conclusion,
In
appears
to us that Rom-
investigate
little to
their client’s back- pilla is
arguing
now
that his trial counsel
ground although they possessed informa- were constitutionally
in failing
derelict
tion that
prompted
should have
them to do take all
steps
might
have been
Rompilla’s attorneys
so.
conducted a pursued by the most resourceful defense
greater investigation,
much
but their inter-
attorneys with
investigative
bountiful
sup-
family pro-
views with their client and his
port. But
may hope
while we
day
every
vided a reasonable basis for
when
concluding
criminal defendant
receives
representation,
level of
investigation
additional
would not
that is more
than the Sixth Amendment
demands. See
represented wise allocation of limit-
Strickland,
689,
Three
Rompilla’s
sections of
brief on brief to the state supreme court is read as
appeal
direct
supreme
the state
court
having raised the federal claim that
the
raised claims concerning
accomplice
the
trial judge erred in refusing
give
the
liability
First,
instruction.
Rompilla
requested
ar
instruction on
requirement
the
gued that
judge
in giving
proof beyond
erred
doubt,
a reasonable
it
instruction because the defense had no seems clear that
remaining
federal
prior notice that
theory
liability
this
was
constitutional
by Rompilla
claims advanced
in the case and
judge
because the
refused
appeal
this
presented
were not
to the
request
defense
that
jury
specifi
“the
be
supreme
Rompilla’s
state
court.
argument
cally instructed that
accomplice
under an
in the
supreme
state
court concerning the
theory every
proven
element must be
be
lack of prior
solely
notice was based
yond a
authorities,
reasonable doubt.” Appellant’s Br.
state
argument
and the
that
Commomvealth v. Rompilla,
Rompilla
Su-
has made to us that
trial
Bonomo,
15. See
by being
Commonwealth v.
396 Pa.
accomplice
instructed on an
theo-
(1959).
151 A.2d
it,
ry
being
disregard
and then
told to
jury might have been confused and convict-
16.'
appeal,
supreme
[Rompilla]
On
accomplice.
direct
the state
ed
court
as an
Rompilla’s argument
described
Rompilla-1,
as follows:
not
on the
Court,
recall,
Charge,
Assuming
you
[its]
deciding
appeal.
this
fault in
theory
consid-
at no time
argument
that our
for the sake
referred
case. It is not the
accomplice
is not
in this
those claims on the merits
eration of
theory in this case
barred,
the claims do
Commonwealth’s
we find
an accom-
relief.
for habeas
provide basis
Defendant
quite sure what
I’m not
plice.
If it arose
question.
prompted
B.
something
argued
that was
because
*27
closing speeches,
in the
by
is
Counsel
language
jury
in
instructions
When
recall,
you
that
are to
you
I indicated
question
in
“must
language
the
challenged,
by
guided
give
you should
in
of the instruc-
the context
be considered
—and
to the ex-
Lawyer’s arguments
trial record.”
each
a whole and the
tions as
McGuire,
62, 72,
they’re supported by the evidence
112
tent
Estelle v.
(1991).
in
they
you
apply-
aid
and in so far as
We
without not, judge did as judge’s words. The fail. liability, arguments plice these contends, was no say that there was involved. person that another court the trial evidence Rompilla contends Rather, was judge “[t]here stated that not consider jury that should told the to the regard case with evidence this no evidence no liability because accomplice as “question posed.” support question during the trial to presented “If was an accom- was: Defendant posed” 16. Rom- Rompilla Br. at finding. such a Homicide, plice Charge Criminal judge trial maintains that pilla then in the Murder that, charged with can he be contradictory instructions gave Thus, judge essential- Degree?” hand, jury not to First told the one he sup- evidence that there was no ly there said liability because accomplice consider lia- accomplice under an finding port a conviction such a support no evidence to say did not theory; judge hand, bility and, told the other he on the *29 justify might that no evidence there-was and its recol- it was the sole factfinder that 264 doubt, Id. at ger 157, or residual doubt for elderly
reasonable
women.
sentencing
purposes
mitigation,
During
penalty phase,
as to S.Ct. 2187.
argued
state
that
killing
question
jury
committed the
for the
Rompilla
whether
“what
was
to do with [the defendant]
intent.
now
requisite
Accordingly,
with the
that
Id.
he is
our midst.”
The
state also
nothing
judge
that
said
foreclosed con-
urged that a death sentence would be “a
exculpatory mitigating
sideration of
or
evi-
response
society
to someone who is a
dence.
threat. Your verdict will
an act of
self-
sum,
In
considering
Rompil-
after
all of
Id. The defendant
sought
defense.”
arguments regarding accomplice
la’s
liabil-
argument by
rebut the state’s
presenting
ity, we see no ground for habeas relief.
dangerousness
evidence that his
limit-
was
elderly
ed to
women
that
there was no
VIII.
expect
reason to
acts
violence once he
contends,
finally, that his fu-
Id. prison
setting.
court
trial
dangerousness
put
ture
at issue dur-
request
denied defense counsel’s
for a pa-
ing
sentencing phase
of his trial and
Id.
ineligibility
158-60,
role
instruction.
therefore,
under Simmons v. South During deliberations,
S.Ct. 2187.
Carolina,
U.S.
S.Ct.
129 jury
if
asked
a life sentence included the
(1994),
L.Ed.2d 133
the trial court was
Id. possibility
parole.
required
jury
to inform the
im-
“life”
2187. -The trial
jury
court instructed the
prisonment
under
law means
not to
parole
parole
consider
or
eligibility
parole.”
“life without
agree
We
with the
jury
and told the
imprisonment
life
Court, however,
District
Pennsyl-
that the
and death were to be understood in their
Supreme
rejection
vania
Court’s
of this
plain
Id.
ordinary meaning.
Shortly
claim cannot be disturbed under the nar-
thereafter,
returned with a sen-
row
prescribed by
standard of review
tence of death. AEDPA.
The United
States
Court held
that,
circumstances,
under these
pro-
due
A.
required
cess
judge
trial
to inform the
Rompilla maintains that
the state
jury that
the defendant would not have
supreme court’s
“contrary
decision was
to”
eligible
been
for parole if sentenced to
represented
applica
“an unreasonable
imprisonment for.
plurality opin-
life. The
tion” of Simmons.18' The
holding
actual
ion endorsed
four Justices reasoned
Simmons, however, as set
out
Justice
controlling opinion,
O’Connor’s
is narrower
jury reasonably
may have believed
than
acknowledges.
petitioner
could be released on
Simmons,
the defendant was convict-
parole
he were not executed. To
capital
ed of
killing
murder for the
anof
the extent
misunderstanding
this
per-
Simmons,
elderly
deliberations,
woman.
jury’s
vaded the
it had
156,
265
specifically
prediction
relies on a
by the
encouraged
misperception
offuture
jury
asking
pen-
in
for the death
provide
dangerousness
refusal to
trial court’s
”
175,
regarding
alty,’
(emphasis
information
at
ture
a defen-
applies
rule
whenever
Simmons
release
the defendant’s
prohibits
law
is “at issue”
dangerousness
dant’s future
that the sen
requires
parole,
process
due
(whether
makes
prosecution
or not
the defen
informed that
tencing jury be
con-
argument),
Justice O’Connor’s
512 U.S. at
ineligible.”
parole
dant is
read more narrow-
trolling opinion may be
added).
(plurality)(emphasis
S.Ct.
only
governs
that the rule
where
ly to hold
161-62, 114
S.Ct. 2187.19
actually “argue[s]” that a
prosecution
in Simmons—
controlling opinion
The
a future threat. Neither
poses
defendant
in the
concurrence
Justice O’Connor’s
course,
perfectly clear
has
position,
in
the Chief Justice
judgment,
which
in
There is a sense
which
boundaries.
phrase
Kennedy joined
Justice
—seemed
“at issue” at the
dangerousness is
future
narrowly.
Justice
holding more
virtually
capital
all
cases.
penalty phase of
should
that a “defendant
stated
O’Connor
first-degree murder-
that a
possibility
ineligibility
bring
parole
be allowed to
in
likely
present
again
kill
er will
in cases
attention
jury’s
except
all
those
jurors’ mind in
cases
sen-
only available alternative
which the
mur-
committed the
where the defendant
imprisonment without
to death is life
tence
he or she was convicted
der for which
prosecution
and the
parole
possibility
that are
circumstances
of unusual
because
pose
will
the defendant
argues
even
unlikely
again
to occur
very
Id. at
society in the future.”
threat to
As the
prison.
is released
defendant
(O’Connor, J.,
concurring
On the other the fine line that Court that Kelly’s held opinion Justice O’Connor’s seemed to future dangerousness sufficiently put was draw—between cases which prose- at issue that he parole was entitled to a “argue[s]” cution dangerousness future ineligibility instruction. Id. at 733-34. and cases in which dangerousness future In the body opinion, of its the Court stated jury inferred from the evidence that dangerousness “[e]vidence future is brought to its attention' —is difficult to under Simmons is evidence with a tenden- police arguably and superficial. A prose- cy prove dangerousness future; in the may encourage cutor a to think about its relevance to that point not disap- does dangerousness future without expressly pear merely might because it support oth- referring concept. to that er inferences or be described in other terms.” Id. at 732. The recognized Court year, Last in Kelly Carolina, v. South may that “it well be that the evidence 151 L.Ed.2d all, substantial proportion, capital (2002),20 arguably the Court broadened cases will show a likely defendant to be holding in Simmons. Kelly, dangerous future,” in the but the Court jurors state told the in its opening at the declined to address the issue of whether a penalty phase: “I hope you in your never defendant is parole entitled to a ineligibili- again lives have to experience you what ty instruction when the state’s evidence are experiencing right now. Being some shows dangerousness future prose- thirty away feet from such person. Mur cutor argue does not it. Id. at 732 n. 4. derer.” Kelly, 729. The state The Court prosecu- concluded that “[t]he then presented evidence that in pris while tor accentuated the clear inference of fu- on, Kelly knife, had made a had attempted dangerousness ture raised the evidence escape prison, planned had placed the case within the four corners hold a guard female a hostage. Id. The ” of Simmons. Id. state brought also out evidence “Kelly’s early sadism at an age, and his inclination dissenters, The Kelly including two of to kill anyone who rubbed him the wrong joined Justices who had Justice O’Con- (citation way.” omitted). During opinion Simmons, clos nor’s argued that the ing arguments, the state Kelly referred to Court improperly had extended Simmons’ as “the butcher of Batesburg,” “Bloody s reach. See id. at C.J., 735 (Rehnquist, Billy,” “Billy the Kid.” Id. The joined J., (“the state by Kennedy, dissenting) also jurors told the that “Kelly doesn’t test is longer no whether the argues State 20. Kelly was briefing decided after argument com- After oral parties both submitted pleted argument and before oral supplemental in this case. addressing memoranda the is- Rompilla submitted a Supplemental tJotice of Kelly sue applicable of whether Authority, pursuant R.App. 28(j). to Fed. P. instant matter. read into the record the Commonwealth society[,] [as dangerousness future J.M., ]; testimony of a female bar owner test is now the found Simmons robbed, previously at trial had was introduced whom evidence whether knife, raped. During future dan- ‘implication’ of slashed with that raises an *32 at 737 society”) closing arguments, and id. the Commonwealth ar- gerousness Sealia, J., (Thomas, J., joined by dissent- gued: test, (“the dilutes Simmons
ing) Court raped, that was was woman [T]he parole ineligibility that a requiring now pretty brutally. raped raped She prosecution where the given be instruction [Ijsn’t point.... frighten- at knife it ‘tendency that have a arguments makes similarity that case ing, the between ”). in future.’ dangerousness prove mean, absolutely case. I it is and this Simmons, how- Kelly Even if broadened place around astounding. Both take ever, Rompilla here. Un- Kelly cannot aid in gets The Defendant after the bar. 2254(d)(1), § our review is der 28 U.S.C. closing right closing.... or before court deciding whether a state limited to occasions, a knife was used. On both “contrary to” or an “unreason- decision is it money both times. Isn’t Steals prece- application” of able in those frightening the similarities the relevant state- “as the time dent away from crimes. Takes a taxi Williams, 529 U.S. at decision.” court Bar, night a taxi the takes [J.M.’s] added). (emphasis in the this crime. He slashes [J.M.] preceded in this case state court decisions knife with a knife. He uses a breast of whether Accordingly, regardless Kelly. absolutely Jimmy It’s Scanlon. when fu- the circumstances Kelly expands think of the similarities frightening to pur- for dangerousness is at issue ture in But there is one those two crimes. ineligibility in- requiring parole poses of difference, difference, major one struction, to the applicable case is not through experience. her lived [J.M.] deciding are limited to instant matter. We keep didn’t.... I Jimmy Scanlon in this court decisions whether the state why did the Defendant wondering, contrary to or an unreasonable case were Jimmy left the Bar? wait till Scanlon it- holding Simmons application Why closing up. knew he was He say Justice O’Connor’s self—which is had left to just wait until he didn’t he thus We must controlling concurrence. money, no break and steal Su- determine whether gets hurt? You have problem, nobody concluding was reasonable preme Court why didn’t he wait yourselves, to ask case did present prosecutor that the it Jimmy to leave? Was Scanlon present would “argue[ ]” start? right to kill from the his intent to death. danger not sentenced a future bodily intent to do serious Was events turn to the relevant We therefore Because from the start? injury right trial. phase penalty at the hour, an maybe a half if he had waited later, Jimmy hour Scanlon
B. a homi- wouldn’t be gone. This been would still Jimmy Scanlon cide case. phase, During penalty Common- I the Defendant living. think aggrava- to establish the attempted wealth in that [J.M.] a lesson from learned “significant had a ting factor that case, That lesson Rape case. felony specified convictions” as history of Don’t 9711(d)(9). this, was, any witnesses. don’t leave doing § in 428 Pa.C.S. anybody testify you’re behind that can going your leave to have to make you. against upon decision based evidence presented accordance with App. at 779-80. respect the Law with to Sentencing During deliberations asked: all, Hearing. First I couldn’t even imposed, If a life sentence is is there could, answer it if I to or if I I wanted any possibility of the Defendant ever don’t know. being paroled? change Foreman: I question Could judge Id. at 802. The trial answered: point that is—isn’t rehabilita- sorry say, I’m I can’t answer *33 tion in prison? available question. you That’s not before as only you such. The matter that can Well, Court: I again, would like to even Sentencing consider in the Hearing is that, answer and I can’t. go- You’re brought the evidence out ing rely upon your have to own Hearing the course of the and the if, indeed, knowledge aspect of that respect Law with to the Court’s part that is a that troubles the area only Charge. That’s the consideration you’re interested in. penolo- The have, you sorry say. I’m I—if gy system, I’ll quite frank with there were you other alternatives that you, is not issue before—before consider, should we would have out- you respect to the Law that it’s a Charge, right. lined them all you decision that must make. I can at Id. 802-03. interest, your however, understand later, jury Several hours to, asked to I say, know, we’re you constrained see the Rompilla’s prior docket entries for comply with whatever evidence that purpose ascertaining convictions put on in the hearing and then Rompilla’s prior judge sentence. The de- your decision upon must be based nied request, following and the ex- says whatever the Law and whatever change took place: you may right. find. All
Juror No. 3: want to know if we Id. at 842-43. Three hours jury later the got was—the sentence was—if he re- returned a sentence of death. leased on behavioral— The PCRA court found that Simmons Foreman: It any way, was commuted in did not apply prosecutor because the did original sentence. argue dangerousness. future App. at Well, give Court: can’t you. we 2025. The similarly District Court found Prosecutor: You can’t tell them. that a “fair reading of prosecutor’s [the Id. at 823-24. summation] leads to the conclusion that day, The next after two more hours of the state’s reasoning for the death penalty deliberation, asked: was not upon dangerous- based future Was the Defendant offered type ness,” upon but rather Rompilla’s “despi- of rehabilitation prison either while in cable, savage cowardly beating” or after his release prison? victim. Rompilla, 2000 WL at 842. following colloquy Id. then *15. The District Court concluded that occurred: issue,” although a “close supreme state Well,
Court: sorry say, I’m court’s I can’t decision was not an unreasonable you answer that. I can application tell of federal law. Id.
c.
meaning
imprison-
of life
had as to the
Simmons,
169-70,
ment.
U.S.
noted,
on both the
Rompilla relies
As
California, (citing Boyde v.
S.Ct. 2187
applica-
“contrary
and “unreasonable
to”
370, 380, 110 S.Ct.
108 L.Ed.2d
2254(d)(1).
§
of 28 U.S.C.
prongs
tion”
(1990)).
separately.
prong
each
will discuss
We
prosecution
contends that the
1.
necessarily
dangerousness
his future
put
“contrary
to” a
A
result
of his
by presenting
prior
evidence
at issue
“contra-
if the state court
holding
Court
aggrava-
criminal conduct
establish
in [the
law set forth
governing
dicts
history
significant
that he had a
ting factor
or if it “confronts
cases”
Supreme Court’s]
felony
According
convictions.
to Rom-
materially indistin-
facts that are
a set of
supreme
state
court rendered a
pilla, the
Supreme]
from a decision of
guishable
[the
v.
Skipper
“contrary
that was
to”
decision
a [differ-
arrives at
and nevertheless
Carolina,
South
476 U.S.
106 S.Ct.
405-06,
result.”
ent]
(1986)
Ange-
v.
and Ramdass
90 L.Ed.2d
362, 412, 120
Taylor,
Williams
*34
lone,
156, 120 S.Ct.
147
530 U.S.
(2000).
This
jury’s verdict.
Skipper,
In
the Court
mons
purposes.
concept
to the
rality opinion referred
right to
capital defendant’s
held that the
considering
likelihood”
“reasonable
at
mitigating evidence
present all relevant
once future
question whether,
different
—
the trial was violat-
sentencing stage of
issue,
put at
there was
dangerousness was
to admit
court’s refusal
ed
the state
in-
that a
likelihood”
a “reasonable
had made
that the defendant
evidence
impris-
“directing juries that life
struction
jail during the time
adjustment
good
‘plain
in its
onment should be understood
Thus,
trial.
and the
between his arrest
any
ordinary’ meaning” dispelled
mis-
instruc-
nothing to do with an
Skipper
had
jurors might
understanding that the
of Simmons ineligibility.21
application
parole
tion on
present
case would be “close” we were
Ramdass is also
reliance
review,
exercising plenary
we are con-
does Ramdass
post-
misplaced. Not
supreme
vinced that the state
court’s deci-
date the decision
Su-
sion was reasonable.
Ramdass does not ad-
Court,
preme
question
of when future dan-
dress the
maintains
the state su
gerousness
sufficiently put
is
in issue to preme court’s decision was unreasonable
require
parole ineligibil-
opinion
an instruction on
because its
did not discuss all of
Ramdass,
In
ity.
prosecution
arguing
ex-
evidence on
he relies in
which
pressly argued
dangerousness
dangerousness
future
as his future
sufficiently
circumstance,
aggravating
put
during
penalty phase
and thus
at issue
Ramdass,
point
disputed.
his trial.
Br. at 45. As we have
Instead,
however,
530 U.S.
whether the similarities
rape
between the
his
2.
murder of Scanlon were not
Rompilla next contends that
the state
“frightening.” Rompilla contends
supreme
represents
court’s decision
painted
picture
these comments
himof
Simmons,
application”
“hardened,
“unreasonable
as a
frightening, violent recidi-
agree
who,
released,
but while we
with the District Court
if
vist
ever
would commit
Rompilla
Skipper
drawing
refers to the
suggested
Court’s
the line
in Justice O'Con-
"[cjonsideration
statement
of a defen-
nor’s Simmons concurrence between cases in
past
proba-
dant's
conduct as indicative
prosecution argues
of his
which the
that a defen-
ble future
presents
danger
behavior is an inevitable and not
dant
future
in
cases
sentencing.”
give
element of criminal
which the facts
rise to an
undesirable
inference of
dangerousness.
U.S. at
We you You’ve rendered what felt was a consideration, end it does not but I just quarrel verdict. have no with standard of us that the difficult persuade job, you, your you that was came back 2254(d)(1) Reading the Com- § is met. you a verdict but none of can tell with context of the monwealth’s remarks you you have no doubts and if me that appears sentencing proceedings, entire doubt, you think have a then better not ar- did to us that the Commonwealth very, carefully you’re what very, emo- dangerousness. her gue future going to do here.... penalty closing argument tional you may take a chance that argued over and Don’t defense counsel phase, wrong you decision that that, jury making had found the although the over Please, life, spare had some can’t live with. his guilty, they must have defendant thanks. guilt in view of the evi- doubts about they should therefore not dence and that App. 767-774. stated:
impose a sentence of death. She prosecutor’s upon remarks which You, Jury, him of First as a convicted response now relies came him, Degree Murder. You convicted suggesting comments these defense minds, your beyond a reasonable jury still have doubts about the should doubt, you must have some doubt. guilt. Seeking dispel defendant’s to be some doubt there got There has doubts, prosecutor’s point obvious such witness, circumstan- eye with no similarities between the stressing the tial evidence.... rape for which Rom- circumstances of you to have some I know that So been convicted and the pilla previously had actually happened what doubt as to murder was to convince Scanlon what may never know night. We man had committed both the same actually happened night.... *36 prosecutor at times Although crimes. you before you Don’t want to be sure the two the similarities between termed condemn that man to die because that it seems clear “frightening,” crimes A yourselves. death sen- don’t fool that suggest this term to he did not use ques- No more tence is death.... “frightening” in the sense Rompilla was threat, tions after that.... simply posed a future that he were, aptly as he more I that the similarities struggling with this. you I saw all “astounding.” point, it at another Monday night put at 10:00 o’clock saw it go did not to future argument That his you go evening. for the when we let by fact nervous, illustrated tired, dangerousness is you looked You looked the two many of the features of strug- that you you’ve like been and looked highlighted occurred that he you’re struggling with crimes gling. [I]f —both bar, closing at around place both took it, doubt at a you fact that had some mind, time, perpetrator and in both instances stay your now. should also natural- doubt, not features that I used a taxi —are any submit If there was dangerousness. The future ly suggest some you that there has to be Rompil- comment that further prosecutor’s You don’t There has to be. doubt. i.e., rape, from the had learned a lesson You’ll never la happened. know what witnesses, any requirements capital Amendment that sen not leave that he should immediately litany tencing consistently after this of simi- an applied came and with Oklahoma, (citing Eddings v. larities, to have and the comment seems even hand explain why 104, 126, likely purposes: had two 455 U.S. 102 S.Ct. Florida, eyewitness (1982), to the most re-
there was no Gardner L.Ed.2d why the two explain 349, 361, cent crime and to important respect (1977)). differed in the crimes Br. at 44. Rompilla L.Ed.2d 393 killing a and the other that one involved making argument, Rompilla points In this did not. passage supreme in the court state opinion addressing argument his that his event, any interpretation if this even dangerousness put future at issue for prosecutor’s comments is incorrect Simmons purposes prosecution’s imply they if meant to even were prove aggravating effort to circum Rompilla present danger a future significant history stance that he had a prison, he was ever released from the fact Romplla-2, felony violent convictions. prosecutor actually remains that the never Rejecting A.2d at 795. this conten argued Rompilla presented a future tion, supreme the state court stated that Concluding that facts did threat. these aggravating “this circumstance ad bring holding not within the case past conduct, Appellant’s dresses Simmons, controlling as set out in the dangerousness.” Rompilla at future concurrence, no means “unreason reasoning ground tacks this on the Particularly able.” of the fact that view underlying aggrava rationale for this controlling Justices who endorsed the ting history circumstance is that a of vio Simmons apparently concurrence felt felony lent convictions is “barometer of important to draw the line danger.” future Br. Rompilla He did, approving where rather than therefore supreme contends the state arguably plurality, broader reach of the holding present court’s in the case violates the state court’s failure to extend Sim principle state must administer mons to situations in which the prosecu penalty evenhandedly. its death statute tion argue dangerousness does not future argument. There is no merit this was not an application” “unreasonable Simmons.22 principle The constitutional on which argues also that the su- consistency state relies demands preme cases, court’s decision is an unreasonable state’s capital treatment its application of Supreme presented Court law because we have not been evi- it “flies in the face of’ apply the state court’s dence that does not *37 the Simmons standard prior decisions regarding danger- evenhandedly. future On prior history ousness and criminal contrary, appears Pennsyl- and the to us that thus violates a Simmons Eighth uniformly required and Fourteenth vania has Rompilla points testimony regarding Although questions may to the demonstrate that parole juiy meaning his status and the lack of rehabilitative did not know the of ''life'' Simmons, indicating danger- imprisonment, services as that his future see 170 10, 2187; 178, jury. ousness was an evi- issue for This n. id. at 114 S.Ct. (O'Connor, J., brought concurring); dence Rompilla-2, out defense counsel on 2187 C.J., Rompilla's (Flaherty, direct dissenting), examination of 721 A.2d at a witnesses 795 argued by jury's uncertainty parole ineligibility was not the Commonwealth. as to is points jury's questions require also insufficient to an instruction under regarding parole dangerousness. and future Simmons.
273 aggravating this circumstance was intend- specifical- prosecutor when the instruction dangerous- solely a fu- of future ed to serve as “barometer of ly raised the issue ness, see, Trivigno, v. e.g., danger,” nothing illogical Commonwealth ture there is (2000) 243, 232, 252-54 that, Pa. 750 A.2d taking position proof 561 while convic- jury prior to use (prosecutor asked history past defendant’s of violence looking into the as a “weather vane tions may suggest tend to the defendant [the and a “determinant of where future” released, may pose danger a future if just not where he’s going, is defendant] jury only parole should be instructed about Chandler, been”); v. Commonwealth in a particu- those cases which there is (1998) 401, 721 A.2d 1046-47 Pa. larly strong reason to think that concern “stop asked defen- (prosecutor [the danger decisively about future will influ- killing another woman from ever dant] jury’s Informing jury ence the sentence. the instruc- required and has not again”), consequences about the correctional of a prosecutor only presented tion when the from exception practice, verdict is usual E.g., Com- prior evidence of convictions. illogical excep- and it is not to confine this Robinson, Pa. v. monwealth Third, tion to narrow circumstances. (1999) (prosecutor only made A.2d logical inconsistency, there is a it flows past dangerous- references to defendant’s controlling from the line drawn fine ness); King, 554 Pa. Commomvealth Simmons, Pennsyl- opinion not (1998) (prosecutor 721 A.2d vania Court. For all these rea- past only reference to defendant’s made sons, argument rejected. is acts); May, (prose- A.2d at 47 violent dangerousness). argue cutor did not future IX. Robinson, (recog- at 355 also 721 A.2d See requires a Simmons nizing that the court above, out the deci- For the reasons set dangerous- instruction when future is reversed with sion of the District Court “expressly implicated”). ness is respect to the ineffective assistance of dispute not the fact that Rompilla does claim and affirmed as to the ac- counsel rule Pennsylvania applies Simmons in- liability parole instruction and complice Instead, evenhandedly. complaint eligibility claims. view, is, logical in his inconsis-
that there aggra- tency between the rationale for SLOVITER, Judge, dissenting. Circuit question and the vated I from the well- respectfully dissent interpretation of Sim- Supreme Court’s flawed) (albeit, view, my decision crafted however, is invalid argument, mons. This that, effect, Majority reinstates First, the constitu- for numerous reasons. Ronald penalty appellant the death relies principle tional which I claims that Rompilla. There are two consistency in the treatment of concerns grant of a writ of believe warrant cases, consistency aspects in all logical One, corpus. which was the basis habeas penalty jurisprudence. aof state’s death grant of the writ for the District Court’s Second, logi- Rompilla has not identified a hearing, is the requiring sentencing a new may inconsistency. Legislature cal *38 of counsel shocking ineffective assistance circum- adopted aggravating the Rompilla’s trial sentencing phase. at the for question wholly partially in or stance school, Rompilla’s to retribution, counsel failed obtain protect purpose the of not medical, prison part records as court and defendants who are public from those and, result, Moreover, investigation as a even if of their likely pose a threat. 274 jury any mitigating ground The second on which I present
failed
“childhood,
grant
corpus
a writ
habeas
is the refusal
regarding
of
evidence
retardation,
alcoholism,
possible
judge
jury
or
trial
to advise
as to
mental
damage.” Rompilla
Pennsyl
v.
a life
in
meaning
sentence
organic brain
Horn,
964750,
vania, notwithstanding
jury’s questions
at *9. Counsel also
2000 WL
Rompil-
to communicate with two of
on that issue on three different occasions
failed
nearby
siblings
during
sentencing
who lived
and would
its
deliberations. As a
la’s
result,
sentence,
imposed
have advised counsel of evidence
a death
sentence,
by
in
parents
was raised
alcoholic
rather than a life
without ever
cold, violent,
in
frightening
being
response
and abusive
told
the trial court
jury’s question
home.
that a life sentence in
Pennsylvania
parole.
means life without
establishing
The standard for
ineffective
Pennsylvania
in
The
courts’ rule
this re
in
assistance of counsel was set forth
is,
spect
my judgment,
in
an unreasonable
Supreme Court’s
seminal decision
application
Supreme
of the
Court’s deci
668,
Washington,
Strickland v.
,
sions in
v.
512
Simmons
South Carolina
(1984).
2052,
104
to discover or failed to
certain miti
offer”
evidence,
gating
id. at
120 S.Ct.
Ineffective Assistance of Counsel
Virginia Supreme
the Court held that the
There is no need to restate the facts of
denying
requested
Court decision
writ
history,
this case and its
both
procedural
contrary
of habeas corpus was both
to and
fully
accurately
of which are
set forth
application
involved an unreasonable
majority opinion.
The ineffective
Strickland.
Id. at
275
addressing
Wiggins
decided the ineffectiveness of
supplies the standard
land
using
counsel claim before it
standards
of counsel:
of ineffective assistance
a claim
Strickland,
noting
articulated in
claim that
A
defendant’s
convicted
law,
Williams did not create new
but illus-
was so defective
counsel’s assistance
proper application”
trated “the
of these
of a conviction
require
reversal
as
standards.
at
Because
S.Ct.
2535.
compo-
has two
death sentence
or
Strickland,
squarely
Williams fell
within
First,
must
the defendant
nents.
Williams,
390,
1495,
emotional integrating citing infor for inef- flexibility, recalling three-prong the state’s test behavior, mation, claims, control controlling agreed fective assistance counsel (hands). App. at movements ling motor court’s conclusion that with the PCRA 1577-79, 1581-84, 1572-74, 1617-18, effective, without concluding counsel was 1721-22, 1726, 1728-33. 1717-18, The doc reasonably. that counsel acted discussion problems relate Rompilla’s tors believe Court, A.2d at Rompilla, 721 789-90. childhood, likely and were back to relying on the conclusions of the PCRA syndrome. App. at by fetal alcohol caused court, investigated noted that counsel had 1601-02, 1606, They concluded that Rompilla’s retaining mental health crim capacity appreciate reasonably three on the experts and relied to conform his inality of his conduct or experts own with and on their discussions substantially im conduct to the law was Rompilla to determine the records needed App. at the time of the offense. paired Rompilla, effectively evaluate 1616, 1687-88, 1735-36. credibility adopted the PCRA court’s de- n court, applying Pennsylva- The PCRA of trial conversations termination counsel’s three-prong nia’s standard ineffective members, it to con- family leading claims, of counsel assistance stated clude had to investi- that counsel not failed *44 although Rompilla’s arguably claim had rejected argu- gate. Rompilla’s The Court merit because he was “entitled to have ment inadequate that the received experts infirmity” relevant information mental information because of counsel’s failure to jury, App. “[g]iv- at presented investigate background. his care profes- en the fact that three health An of the that examination record shows sionals, experienced all of whom were fo- Rompilla’s lawyers investigation did less experts, provided opinions had to rensic mitigating into evidence than counsel did counsel, none of them defense asked for Wiggins. Pennsylvania Supreme information, hardly for more it was unrea- Court, affirming the the decision of for defense sonable or ineffective counsel relief, denying post-conviction PCRA court upon opinions.” App. have relied their to “arguable stated that there was no merit” at 2030. claim that failed Rompilla’s trial counsel accepted Rompilla’s The PCRA court investigate Rompilla’s family back- testimony they trial that spo- counsel’s had ground, Rompilla, 721 at 790. The A.2d family ken to in detail and that members referred to failure to never counsel’s family had the not revealed the informa- speak Rompilla’s siblings, to two of Randi tion that was claimed in the PCRA hear- Harris, Rompilla and Barbara who lived at ing. App. 2029-30. The court also nearby and who attended the trial. Dan- contradictory “made noted that tos, at questioned post-conviction when the during their repre- statements” counsel hearing, that she said didn’t remember sentation, and that he had not he indicated not, spoke whether or she those sisters any problems had mental or alcoholic 1099-1100, App. at testi- those sisters App. at 2029. The blackouts. PCRA hearing they fied at the PCRA that court concluded that counsel was reason- at the if penalty phase, testified believing seeking mercy able in was asked, and would have told counsel about strategy, the available and found that Rompilla’s dysfunctional if background, there was reasonable basis for counsel’s App. they actions. at 2029-30. had been asked. inquire there “to certainly any possibly had reason issue
Counsel use availability mitigation any infirmity,” as to the of other fami- mental at further id. report says aware that the Dr. ly members. Counsel was Gross’ counsel’s whom interviewed did instruction family members she as to evaluation was “to Rompilla’s great Rompilla. not know deal determine Mr. mental state family “they during alleged testified that the said charges.” Charles time of said, Id. at hardly supported know him.” One “He was 1069. That is by Dantos’ reformatory. away testimony He’s the whole own pro- been mental health didn’t him well.” employed by time. We know Even fessionals were defense asked overwhelming Rompilla’s Dantos testified to look into “[T]he “mental state family response they the time of commission of- of the really though didn’t feel as knew him fense.” at 1071. App. Counsel not did spent majori- all that well since he investigate Rompilla’s had themselves medical ty years history, use, his some of drug develop- trauma or adult birth ...,” years custody mental App. delays; request childhood not or did instruct family and that experts they had “limited medical retained to inves- issues, knowledge App. tigate of their brother.” those ex- medical “it pret- perts any Dantos stated that seemed did not such investigation. make ty family members she in- Counsel did provide [the clear Drs. Sadoff and Cooke, though they Rompilla, didn’t feel who terviewed] as knew saw well,” very App. at 1166. It is records Ron thus that would have shown long history that trial had apparent counsel sufficient of alcoholism and never them- leads, in Wiggins, investigate selves investigated further records that would family history. to find who members did know have shown that *45 youth. Rompilla’s about more Counsel Rompilla’s did not seek counsel or obtain explained why never did not she interview any Rompilla’s school and records the sisters. other therefore did not learn that was education, Court, Pennsylvania Supreme special in re- left school in 9th The the Rompilla’s grade, claim that jecting PCRA coun- and that his abilities had not ad- beyond not that grade, suggesting sel did obtain records vanced the third have experts the possible aided mental health who evalu- mental retardation because of a him, agreed organic Rompilla, the PCRA brain ated with court disorder. on reasonably they that counsel relied their ex- WL at *4-*7. Because did records, they pro- not perts determine the record needed to obtain these did not vide health re- Rompilla, experts they evaluate his mental health. them to the easily cannot so tained. A.2d at Counsel obligations. shed their constitutional court, Pennsyl- The PCRA on which the Moreover, it appears that counsel directed relied, Supreme vania did ex- not guilt giving
the
no or
experts
phase,
plain
finding
its
that
the school records
penalty phase.
little attention to the
noting
entirely helpful” beyond
were “not
Rompilla’s
can
lawyers sought opinions
Rompilla’s IQ
“simply
from'
that
part
disability
they
learning
mental health
the Bell
is
experts
pri-
hired
Curve and
by
“mental
not
an
de-
marily
Rompilla’s
infirmity
necessarily
organic
caused
fect,”
Cooke,
insanity
guilt
by
Dr.
one
phase.”
or mental
for the
statement made
by
1069-71.
trial
App.
Although
experts
Rompilla’s
at
Dantos stated
retained
2029. Trial
experts
App.
that she also instructed the
to see
counsel.
counsel-
above,
by
investiga-
Rompilla’s
further into
As shown
investigate
failed to
Indeed,
by Rompilla’s
Dr.
no more
IQ scores.
tions
counsel were
retarded level
less,
thorough,
hear-
than those found
perhaps
the PCRA
testified
Cooke further
by
Wig-
Rom-
Court in
provided
inadequate
with
that
he been
ing
had
Majority’s attempt
trial
have
The
to reconcile
IQ
gins.
he would
scores at
pilla’s
pro-
for
damage,
Rompilla’s
looked
its conclusion that
counsel
testing for brain
done
damage Rompilla’s
with
vided effective assistance
counsel
prenatal
evidence
situation,
that
family
Wiggins
defendant’s
brain,
the conclusion
and looked
situation,
nothing
or
were
short of
an abusive
counsel
ineffective
whether
astonishing.
Majority
App. at 1800-01.
The
states
dysfunctional situation.
“[tjhere are critical differences between
investigate records from
did not
Counsel
Wiggins’s
Rompilla’s
and
the conduct
Pennsylvania Department of Correc-
attorneys.” Maj. Op. at
It
trial
257-258.
for
was incarcerated
tions where
continues,
attorneys
“Wiggins’s
pre-
were
did
years
therefore
not learn
‘any reasonably
sented
leads
were
adult
on achievement tests
his
scores
competent attorney’ would
realized
low,
arithmetic
very
spelling
attorneys had
promising. Rompilla’s
were
were below 96% of
achievement scores
comparable leads.” Id.
no
psycho-
App. at
population,
tests
showed serious ab-
logical
performed
respect
my colleagues
due
With
schizophrenia, paranoia,
normalities on the
Majority,
entirely
the distinction
miss-
scales.
obsessive/compulsive
neurosis and
point.
es the
If it was ineffective for
records,
App. at
court
See
1595-99.
Wiggins’
up
to fail to
counsel
follow
investigate,
were
which counsel did
had,
they
it not even
inef-
leads
more
aggrava-
used
Commonwealth as
fective,
inexcusable,
Rompilla’s
indeed
for
ting
and were in the same
circumstance
attorneys
investigate
to fail to
to find the
Rompilla’s case was
courthouse where
leads
could have been used
investi-
tried. Because counsel failed to
experts
experts
retained or to retain
prior
ex-
gate
into
coi'rectional
testify at
penalty phase
present
infor-
perience, they
provide
did not
mitigation?
case
At
viable
the brief
experts they
retained.
mation
the health
sentencing hearing,
trial counsel called
*46
witnesses,
Supreme
quoted
Dar-
Wiggins,
Rompilla’s
In
the
Court
five
sister
lene,
Nicholas, Jr.,
the
Bar
younger
American
Association’s
older brother
Robert,
Appointment
Sandy
Per-
Whitby
Guidelines for the
brother
sister
Aaron,
Penalty
Rompilla’s fourteen-year
in
formance of Counsel
Death
old son.
(1989),
11.4.1(C),
p.
provide
Cases
which
The total examination covered about
investigations
testimony.
into mitigating
pages
that
evidence
of notes of
The wit-
“
all
in
comprise
general
‘should
efforts to discover
nesses testified
reasonably
a
mitigating
good family
available
evidence was
member and never had
by
evi-
aggravating
problem.
and evidence to rebut
As described
the District
Court,
by
pros-
“testimony
apparently pre-
the
the
was
may
dence
be introduced
”
in
(emphasis
engender sympathy
[Rompil-
ecutor.’
at 2537
to
for
sented
*4.
original).
Wiggins’ counsel aban-
2000 WL
“It seemed
la].”
Because
designed
of
investigation
background
primarily
doned the
his
to be
as an emotional
evidentiary
pro-
by failing
pursue
appeal
mercy
leads
to show
to [Rom-
records, they
of
wasn’t
as he
pilla]
vided in
fell short
as bad
seemed
DSS
—he
family
In
these
norms.” Id.
loved him.” Id.
lieu of the
“well-defined
mitigation,
in
presented
ing
Wiggins, Majority,
counsel
the decision
case trial
2254(d)(1),
§
applying
the District
a case that
Court described
holds that “the state
“unreasonably
lacking in real
brief and
court’s determination that counsel acted
substance,”
*4, had
was
reasonably
‘contrary
2000 WL
to’ or an
investigated they
present-
application’
could have
‘unreasonable
they
Strickland.”
presented
Maj. Op.
such as that
at 259.
ed a case
counsel shifted
Rompilla’s
PCRA counsel.
above,
Majority
As noted
I believe the
for
responsibility
finding
leads
It
seriously
clearly
errs.
is
established
experts,
told their
medical
and never even
both
and Wiggins
Williams
that counsel
they
for
experts
responsibility
had the
experts
or counsel’s
cannot
a reason-
make
uncovering that information.
penalty phase-if they
able decision at.the
trial
the tacti-
Wiggins,
investigate
In
counsel made
do not
relevant facts
forego mitigating
mitigation.
cal
evidence
could be
holding
decision
used
dysfunctional
Maryland
and that
Wiggins’
background
Appeals’ appli-
Court of
problems
health
be-
cation
legal
mental
because
of Strickland’s
governing
escaping
unreasonable,
Wiggins’
hope
principles
objectively
lieved that
“best
O’Connor,
or more
penalty
Wiggins,
the death
was for one
Justice
stated
jurors
entertain a
doubt as
to thoroughly investigate
reasonable
counsel’s failure
State,
agency.”
fully
made
Wiggins
to his criminal
“a
informed decision
re-
(1999),
spect
sentencing strategy
352 Md.
A.2d
impossible.”
the Maryland Supreme
Wiggins,
decision
Court
based this
choice on what
presented
inadequate
which counsel
investiga-
made clear was an unreasonable
mitigation
for
penalty phase
case
tion,
objectively
was also
unreasonable.”
sentencing
a capital
hearing,
prejudice
123 S.Ct. at
Wiggins,
prong
constitutionally
assis-
ineffective
clearly
PCRA court
tance of
Penn-
found that
counsel
met. The
pro-
sylvania
“had a
this
counsel
reasonable basis
Court did not reach
*47
did,”
may
as
because
it de
ceeding
App. at
issue and therefore we
consider
.
they employed
experts
attorney,
two
obtained
A
if
novo.
reasonable
aware
psychiatrist,
presented
an evaluation
another
who the
at the
hear-
evidence
PCRA
nothing
ing following
thorough investigation,
also
counsel that he
advised
found
penalty
sentencing
at
than
that would be beneficial in the
would have done more
Pennsylvania
mercy.
The
As
phase.
Supreme
plead
Court
the Court stated
agreed
Wiggins,
jury
that “trial
effective
“had the
been confronted
counsel was
respect
mitigating
with
to their
considerable
evi-
investigation
with [the]
dence,
is a
presentation
mitigation
probability
evidence.”
there
reasonable
differ-
721 A.2d at
that it
have returned with a
Rompilla,
790. Notwithstand-
II.
Quoting
at 2543.
123 S.Ct.
ent sentence.”
Williams,
stated, “we must
the Court
Failure to
a Simmons Instruction
Give
evidence,
the
totality of
both
the
evaluate
Rompilla
cross-appealed from
has
the
trial, and the evidence
that adduced at
of a
District Court’s denial
writ of habeas
proceeding.” Wig-
in the
adduced
habeas
claim
corpus Rompilla’s
right
on
that his
to
Williams,
2543, citing
gins,
at
process
due
violated
the state trial
was
397-98,
In
285
law, however, Appellant's
current state of the
rehabilitation ei-
any type
offered
dant
argument
that he
entitled to the instruc-
in
after his release
prison
while
or
ther
argued
tion because the Commonwealth
the
prison?” App.
again
at 842. Once
above,
aggravating circumstance identified
is
answer,
court declined to
even
the trial
May,
without
merit. See
Under current law asked, penalty phase, jury “If Pennsylvania, must be told a imposed, life sentence is is there parole only that life means life without possibility of the Defendant ever be- danger- future when defendant’s I ing paroled?” question view this is at v. ousness issue. Commonwealth expression jury’s a clear con- Clark, 551 Pa. 710 A.2d 35-36 cern about defendant’s dan- future (Pa.1998). argues that Appellant gerousness. I would hold therefore dangerousness future issue be- that the trial refusal to explain court’s argued cause the Commonwealth life without con- meaning parole aggravating circumstance that he has stituted error under Commonwealth significant history felony convic- Clark, I supra. would therefore use or involving tions threat of reverse of the court of com- the order rejected violence. The Court this ar- pleas proceed- mon and remand for' gument May, Commonwealth v. with ings opinion. consistent this (Pa.1998). Pa. A.2d case, aggrava- As stated this I go require would further and ting Ap- circumstance addresses explanation meaning of a life conduct, pellant’s past not his future capital sentence in all cases. There Thus, id. dangerousness. See no re- in instructing juries can be no harm lief due.10 Pennsylvania appellant that in statutorily ineligible parole be Nigro] agrees This author [Justice prison, that a sentenced to life position the dissent’s that Simmons instruc- be might life sentence nonetheless given all tion should be cases and has Clark, previously so stated. See 710 A.2d at governor. commuted On J., (Nigro, concurring, joined by 43-44 Flah- instruct, hand, other if we do not so joined part by erty, Zappa- J. and in relevant erroneously jury, believing pris- that a la, J.); J., May, (Nigro, 710 A.2d at con- may paroled J.). oner to life sentenced curring, joined by Zappala, Under *49 286 possibility pa- years, may impose imprisonment life without period a
within
role,
process
which
due
entitles the defendant ‘to
penalty
reasons
the death
parole
jury
ineligibility,
inform the
of [his]
in law.
are not based
by
argu-
a
jury
either
instruction or
C.J., dissenting).1
(Flaherty,
Id. at
795-96
”
Id.
39,
121
by
ments
counsel.’
at
S.Ct.
Pennsylvania Supreme
that the
I believe
v.
Angelone,
Ramdass
(quoting
1263
530
Rompilla’s Simmons
analysis
Court’s
156,
2113,
165, 120 S.Ct.
147 L.Ed.2d
U.S.
application”
an “unreasonable
claim was
(2000) (plurality opinion)).
125
precedent,
specifically
Court
Supreme
The Simmons
plurality
and Justice
Carolina,
154,
Simmons v. South
U.S.
512
O’Connor, concurring,
there
believed
was
2187, 129
(1994),
L.Ed.2d
133
114 S.Ct.
prosecutor
had
question
no
made
Carolina,
246, 122
Kelly v.
534
South
U.S.
dangerous-
an issue
Simmons’s future
(2002),
726,
670
151 L.Ed.2d
S.Ct.
result,
As a
the Court had no occa-
ness.
under
that it must
reversed
therefore
making
to define what
an
sion
constitutes
of AEDPA.
the standards
dangerousness.
issue of future
That issue
Simmons,
Supreme
held
In
Court
directly
eight years later in
addressed
process right
due
that the defendant’s
Kelly,
opinion
an
of the Court authored
allegation against
requires
him
answer
Souter.
Justice
jury
that the
the trial court to instruct
Kelly,
prosecutor
In
stated
he
life
penalty
to the death
is
alternative
argue
dangerousness
would not
future
(in
where that is the
parole
without
states
“that takes it out of Simmons
anyhow.”
alternative)
argues
prosecutor
249, 122
Kelly,
287 253-54, 122 pose legal the issue Id. at 726 (emphasis state court failed S.Ct. added). applica- accurately, considering for in the Kelly’s
bility it asked whether of Simmons In language particularly relevant to this ‘a infer- dangerousness logical future was case, stated, Kelly the Court “The fallacy evidence,’ ‘injected ence from or the of attempt the State Court’s closing through into the State’s the case portray the of thrust the evidence as so argument.’” Id. S.Ct. unrealistically limited back to a harks com- (internal omitted). of support citations parable judge, mistake the trial who of of appropriateness the this statement the spoke going, of evidence as not to issue, the legal the Justice Souter included dangerousness, future ‘to [Kelly’s] ” paren- following explanatory citations character and characteristics.’ Id. at “Shafer, [532 [121 theses: at 54-55 U.S.] continued, 122-S.Ct. 726. The Court (whether prosecutor’s 1263] S.Ct. evidence distinguish The error in trying or argument placed dangerousness future in way Simmons this failing lies issue) Simmons, in U.S. [and] recognize that dangerous evidence of 2187], opinion) (plurality S.Ct. [114 may “character” show “characteristic” (future in dangerousness issue because dangerousness, future as it did here. specter ‘State raised of ... future This, indeed, is the fault of the State’s dangerousness generally’ and ‘advanced] general us, argument more before ' generalized regarding arguments dangerousness that evidence of future [same]’).” Kelly, counts under Simmons when the State for which “introduces] evidence is no possible there other inference In addressing interpre- the trial court’s dangerousness but future to society.” evidence, Kelly tation of the ... dangerousness Evidence of future explained why trial court erred: under Simmons is evidence with a To it thought the extent tendency prove dangerousness Kelly took part “[e]vidence future; point to that its relevance attempts escape and carried a shank disappear merely does because it type danger- is not the of future support inferences or might other contemplated ousness evidence in other described terms. Simmons, ”... overlooked that evi- original). (emphasis prison dence of behavior in can violent Kelly explicit Court thus made what strong implication “general- raise a of prosecutor implicit Simmons: dangerousness.” ized ... future Sim- separately expressly argue need not mons, at 171 U.S.] [512 [114 rather, dangerousness; future future dan- 2187], (And, course, state through can issue gerousness be made an reasoning says court’s nothing implication by argu- or inference crime, Kelly’s the evidence or of addressing independent such mat- ments generally, sadism and his mercurial character. ters as defendant’s vengeance.) hearing thirst for A Rompilla’s sentencing hearing, At evidence demonstrat- defendant’s seeking propensity reasonably prosecutor, ed violence who was death “significant presents penalty, will that he a risk focused on conclude behavior, convictions,” up felony as that history violent whether locked free, fugitive statutory that can serve or and whether free as a one of the factors balancing parolee. “aggravators” or as a between *51 Rompilla prose- that the aggravating argues and factors because factors mitigating placed Rompilla’s dangerous- Pennsylvania’s pen- death cutor future under required issue, required trial court Ann. ness the was Pa. alty law. Cons.Stat. 9711(d)(9). jury to inform the that argument his under Simmons During closing § parole ineligible. Rompilla is The PCRA Rompilla’s prior prosecutor the referred disagreed, reasoning that offense, robbery, rape the court Simmons which involved the apply prosecutor does not because did slashing a knife of a female bar and argue dangerousness. The owner, terms: not future following in the stated, ar- prosecution merely court “The Macrenna, the woman that was Joe significant that Mr. a gued had pretty brutally. raped, raped was of was history felony convictions which raped point.... knife She argument proper aggravating as an factor similarity it be- frightening, [I]sn’t App. under law.” at 2025. I case and this case. tween that jury’s question court not find the The did mean, absolutely astounding. it is concerning he had reha- whether received take around the The place Both bar. argu- supportive Rompilla’s bilitation closing or gets in after Defendant “This question ment: relates more closing.... oc- right before On both by the the issues raised defense witnesses casions, knife was used. Steals a during penalty phase complained who money frighten- both times. Isn’t Mr. not reha- that had received ing the in those crimes. similarities prison pa- while in and while on bilitation Bar, away from Takes a taxi Joe’s after his rape burglary role and con- night takes a of this crime. taxi the fact, mitigating that a victions. He in the breast with slashes Joe jury found than factor rather Jimmy knife. a knife on He uses App. The aggravating factor.” at 2026. absolutely frightening Scanlon. It’s address, did perhaps court did not to think the similarities in those recognize, jury’s ques- the relevance two But there is one differ- crimes. concerning tion whether rehabilitation is ence, difference, major one Joe Ma- request available prison Rompilla’s through her experience. crenna lived for a Simmons instruction. Jimmy didn’t.... I think Scanlon learned a lesson from Defendant appeal, Pennsylvania Supreme On case, Rape in that Joe Macrenna issue, the facts and Court summarized and ivas, leave case. That lesson don’t analyzed Rompilla’s Simmons claim in one anybody Don’t leave witnesses. I paragraph quoted which in full near the testify you. against behind that can beginning Pennsylva- of this dissent. The added). App. (emphasis at 779-80 Supreme interpreted Pennsylva- nia Court requiring At also learned via nia law as instruc- sentencing Simmons parties “only testimony by both that the tion future elicited when defendant’s issue,” shortly dangerousness expressly instant crime after Rom- occurred pilla prison, rejected argument pre- had been from that in Rompilla’s released senting there is a lack rehabilitation services for criminal his- Rompilla’s extensive tory prosecutor ipso were future prisoners, children made facto initially frightened Pennsylva- him dangerousness when he was an issue. The parole, had been thus appears released he nia Court to have paroled dangerousness from sentence determined that future previous argued expressly separately three weeks the instant crime. must be before providing separate, express or inferred may implied argument not be consequently, arguments; Majority other effect. appears past agree, recitation of defendant’s prosecutor’s opinion its states: “even if [the cannot, more, prosecutor’s conduct without criminal were comments] meant to im- ply amount to an issue of future making present also Rompilla would a future unclear whether danger It is if he dangerousness. was ever released from pris- on, Pennsylvania Supreme believes this fact remains that the prosecutor *52 required to be with or never principle expressly argued Rompilla pre- consistent Simmons. Maj. sented a Op. future threat.” at 271- 272. the Simmons was before the When issue I do not Simmons an requiring read Rompilla’s peti- Court on habeas
District
express argument of
dangerous-
future
tion,
gave
that court also
the issue
Simmons,
ness.
In
prosecutor put
the
analysis and concluded:
brief
dangerousness
future
“at issue” in a few
prosecutor’s
The
in this
summation
brief
closing argument.
comments in his
case
of the
pages
covers 16
notes of
Simmons
As the
plurality opinion
de-
testimony2
reading
fair
of it
and a
it:
scribes
that the
leads to the conclusion
state’s
In
closing argument
its
prosecu-
the
penalty
reasoning for the death
argued
petitioner’s
tion
future
dangerousness
upon
not based
future
dangerousness was a factor for the
despicable, savage
but on the
jury
ap-
to
when fixing
consider
the
cowardly beating
Petitioner inflict-
the
propriate punishment.
question
The
upon
ed
his victim. This is a close
for
the
jury,
prosecution,
said
issue, however,
Supreme
“what
[petitioner]
to do with
now that
Pennsylvania’s
Court of
decision in
he
...
prosecu-
is
our midst.”
The
the PCRA
not an unreason-
case was
tion
urged
further
that a verdict for
application
able
law.
of federal
response
society
death would
“a
be
Horn,
Rompilla v.
at
2000 WL
*15
someone who
threat. Your
.is
2000).
(E.D.Pa.
July
The District
verdict
act
will be an
of self-defense.”
appears
agreed
with the
Court
157,114
512 U.S. at
S.Ct. 2187.
Court that
if the
dissent,
argument on”
prosecutor “based his
Justice Scalia takes issue
ac with the
of those
despicable
the defendant’s
conclusion
Justices who
nature
tions, he could
same
formed
majority
time have
the above state-
argument
an issue of
future
ments
danger
made
constituted an
for future
Simmons
dangerousness.3
language
without
in the
purposes
ousness
used
eight pages.
dangerousness,
response
is not
covers
future
but was a
That
accurate:
App. at
See
774-782.
mitigating
petitioner’s
evidence.
Read
context, the statement is not even relevant
3. The dissent states:
to the issue in this case:
Both Justice
Justice O'Con-
Blackmun
“The defense
this case as to sentence
prosecu-
portions
focus
two
of the
nor
putting
It's
[is]
diversion.
argument
tor’s final
in the sen-
father,
society,
blame on
on his
on his
First,
tencing
they
phase.
stress that the
can,
grandmother, on whoever else he
prosecutor
jury to
asked the
answer the
spreading
personal
to avoid
it out
[petitioner]
question
to do
"what
responsibility.
he came from a de-
That
that he
state-
now
ment, however,
is in our midst.” That
(as
prived background. That he didn't have
made
was not
im-
argument
certainly
in life and
ply) in the course of
all of the breaks
concurring opinion,
In his
Souter
who
Justice
opinions
Justices
various
writes,
dangerousness
future
is an
“when
does not
majority
formed
Simmons
sentencing
in a
determina-
capital
issue
express-
must
prosecutor
that the
suggest
(em-
...”
Id. at
Rompilla’s Pennsylvania the stating, Kelly “Even if Su- preme applied Court an unjustifiedly broadened nar- Kelly Simmons cannot aid row test for Rompilla determining here” whether the Kelly pros- because was decided ecutor made an issue of after the Supreme Rompilla’s future Court’s dangerousness. That represented decision in test Maj. case. an Op. at Simmons, application 267. The unreasonable Majority notes that es- under pecially as 362, 120 applied Simmons was in Taylor, Kelly. Williams 529 U.S. S.Ct. (2000), 146 L.Ed.2d 389 federal re event, any In I believe that the record 2254(d)(1) pursuant view to section is limit shows that prosecutor the did make an ed to the state application court’s of feder issue of Rompilla’s dangerousness. future al law “as of the time of the relevant state- It is noteworthy prosecutor that the re- court decision.” Id. at 1495. ferred to the similarities between this Supreme
The interpret Court does not Rompilla’s previous crime and crime as application the unreasonable “frightening” no less than three times. 2254(d)(1) precedent prong § as The similarities can be “frightening” only narrowly Majority. as does the Wig- prosecutor the was sending message the gins, the Court viewed opinion its in that possibility there is a Rompilla that Williams as proper “illustrative of the ap- repeat will the Similarly, pros- crime. plication” standard, of the Strickland emphasis not- major ecutor’s on the one differ- withstanding that yet ‘Williams had not ence previous between this crime and his been decided at the Maryland time the crime—the murder of the victim—and his Appeals Court of rendered the decision at statement jury Rompilla that had any were did want to leave witnesses. pilla to leave witnesses not learned not at This App. suggests dangerous- 780. warning about what would tantamount to ness, not rebuttal. Rompilla were allowed to commit happen if i.e., crime, another Kelly from Simmons plain It Moreover, the Supreme as dangerous. the prosecutor’s the reasons for state- recognized, past evidence of Court has dispositive ments are not of whether of fu- may criminal conduct be indicative dangerousness future put issue for Skipper v. See South jury. They could have done so even if dangerousness. ture Carolina, principal dispel their thrust were doubt (1986). L.Ed.2d 1 all, Sim- After raised the defense. mons the prosecutor’s remarks were made urges Majority The us to consider response mitigating to defense counsel’s context, claiming prosecutor’s comments (see dissenting evidence Justice Scalia’s responding to ar- merely he was counsel’s above). Thus, opinion, quoted if the even must have some gument prosecutor Rompilla’s case did not make guilt and that concerning Rompilla’s doubt Simmons is still express argument, ap- argu- were a rebuttal comments because, Sim- above, plicable explained as ment, argument danger- for future not an mons require “express argu- does states, Majority “Seeking ousness. The ments.” doubts, dispel prosecutor’s any such Majority also pros- asserts stressing obvious the similarities point merely “frightening” ecutor used word for rape between the circumstances synonym “astounding,” as a a word which had con- previously been (“more prosecutor apt- also used murder to con- victed and the Scanlon it). ly,” Majority puts Maj. Op. jury that the same man had vince the arguendo Majority’s 271. Accepting Maj. Op. both crimes.” committed *55 hypothesis, negate it does not the implica- to the Majority’s attempt explain The dangerousness. of tion future The mean- conjecture. remark prosecu- is sheer The ing of a phrase depends part word or in tor remarks in the of made his course understanding the reasonable of the listen- why factors outlining aggravating three er, not merely speaker. the intent of the apply Rompilla. addressing After against Majority attempts The also to discount the while first two—torture murder any dangerousness implications in future committing prosecutor other crimes—the prosecutor’s by the that statement the said: of time this crime had learned Commonwealth has more. Common- any eyewitnesses by kill explaining that you that Defen- wealth submits to the had “the comment seems to have two like- significant felony history dant has a of ly purposes: explain why no there was involving to the convictions violence eyewitness to the most recent crime and to or the threat violence to person explain why the two crimes differed the person. important respect that one kill- involved a The App. prosecutor ing Maj. 779. then de- and the other atOp. did not.” previous rape Again, scribed with his above- 271. if prose- even those were the quoted “frightening” cutor’s gave purposes, use does not follow that he thereby inject State’s did not explanation danger- did also future up proceedings. wait the bar until Scanlon closed ousness more into The breaking message jury before to steal because Rom- immediate learned
293 (1980); put Rompilla in surely they Maryland, Mills v. 486 U.S. 367, 1860, could commit an- from which he 383-384 S.Ct. position [108 100 crime, (1988). jurors Thus, had better not L.Ed.2d it requires 384] other among repeated provision the witnesses. Their of “accurate sentencing in- judge concerning parole to the questions indispensable formation an pre- [as] had suggests and rehabilitation requisite to a reasoned determination learned lesson.4 of whether a defendant shall live or die,” Georgia, 153, Gregg v. 428 U.S. Souter, concurring opinion Justice in his 2909, 190 49 [96 S.Ct. L.Ed.2d 859] Simmons, Stevens, joined Justice (1976) (joint Stewart, opinion of Pow- wrote: ell, Stevens, JJ.), and invalidates Eighth The Amendment entitles a “procedural rules to dimin- ten[d] jury capable defendant of a rea ish reliability of the sentencing judgment soned moral whether determination,” Alabama, Beck v. death, some rather than lesser sen U.S. S.Ct. [100 tence, ought imposed. to be (1980). L.Ed.2d 392] Court has explained Amend That for heightened same need reli- heightened ment imposes a standard ability recognition also “for mandates of a reliability in determination capital right require defendant’s in- appropriate punish that death is the case,” meaning structions on specific legal ment in a Woodson v. Carolina, North terms used to describe the [96 sentences (or (1976) recommendations) sentencing L.Ed.2d 944] Stewart, Powell, consider, (plurality opinion jury required in making Stevens, JJ.); also, see e.g., God reasoned moral choice between frey Thus, Georgia, sentencing 427-428 alternatives. when- 1759, 64 [100 S.Ct. L.Ed.2d ever there is a reasonable 398] likelihood Court, reviewing preme addressing This court is limited to the Penn- the effect of Sim- sylvania Supreme opinion Mills, for its Court's con- mons on the rule announced in stated law, sistency with federal and has no role in per that "the se rule announced in [that Mills interest, application its however, of state law. It is of possibility parole reference disagreement among that there is improper consideration for the *56 Pennsylvania Supreme justices the Court guilt] their defendant's deliberation of the has jury themselves as to the need whether Clark, superseded [by Simmons].” been Pennsylvania jury may instructed that in the Pennsylvania A.2d at 36. The Court then imprisonment be informed that not life means process requires stated "that due the court to parole. Pennsylvania life without is one of jury instruct the law as it relates to the only two states out the 50 United States possibility parole that issue de- [the where imprisonment where life means without life clearly dangerousness] fendant's future arises parole jury may that hold that the not be so arguments from the of either counsel in the Carolina, informed. South the state that was concurred, penalty phase." Nigro Id. Justice subject of the decisions in suggesting practice policy "that the better and Simmons, Kelly, Skipper, is the other such require give is to trial courts a Simmons state. penalty proceedings, instruction in all death Pennsylvania was enunciated rule regardless counsel of whether raises the issue Mills, Commonwealth v. 350 Pa. 39 A.2d dangerous- potential of a future defendant's (1944), Pennsylvania Supreme where the phase.” during penalty ness Id. at 43. capital jury's Court stated that in a case the separately, agree- Zappala Justice concurred pen- function was to decide whether the ing alty Nigro charge that a with Justice Simmons imprisonment should be life or the death penalty. recently, Pennsylvania More Su- should be mandated. a sen- will misunderstand juror MICKENS-THOMAS, Appellant Louis term, may de- a defendant tencing meaning, and on its mand instruction following the refusal a death sentence Pennsylvania VAUGHN; Donald Board vacated as request of such a should be Parole, Pennsyl- of Probation “arbitrarily having or discrimina- been Pardons; Attorney vania Board of “wantonly freak- torily” Pennsylvania. General of the State Georgia, ishly Furman v. imposed.” No. 03-3714. 238, 249 [92 S.Ct. (1972) J., con- (Douglas, L.Ed.2d 346] United Court of Appeals, States (internal quotation marks curring) Third Circuit. id., omitted); 2726] at 310 [92 Argued: Dec. 2003. (Stewart, J., concurring). Filed: Jan. 2004. Simmons, 172-73, (Souter, J., As concurring). Corrected Jan. case, repeated questions In this jury the effect of a as to sentence un- imprisonment demonstrate
them life jury not under-
equivocally that did a life that under law
stand parole. life I
prison term means without for requiring the rationale that the
believe parole
jury ineligibility be instructed puts danger- future prosecutor
when i.e., that the
ousness ensure issue —
jurors accurate information as have similarly appli- sentence —is
effect of their case, one, in a where the
cable such this informa-
jurors requested accurate understand to be
tion. I do not the State requested
arguing that the instruction Majority has legally accurate. The why rationale should
provided no applicable Pennsyl- of the informed
not be in advertising Truth is now the
vania law. in- generation. Truth in
byword this
structing jury as the effect *57 capital at least as in a case is
sentence
important. grant corpus
I writ habeas as on ineffective
this issue as well issue.
assistance of counsel