West v. VaughnWest v. Vaughn
MARILYN F. MURRAY, ESQUIRE (ARGUED), Assistant District Attorney; DONNA G. ZUCKER, ESQUIRE, Chief, Federal Litigation; RONALD EISENBERG, ESQUIRE, Deputy District Attorney; Law Division; ARNOLD H. GORDON, First Assistant District Attorney; LYNNE ABRAHAM, ESQUIRE, District Attorney, 1421 Arch Street, Philadelphia, PA 19102-1582, Counsel for Appellees
BECKER, Chief Judge.
In Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the Supreme Court taught that criminal convictions based on jury instructions that equate reasonable doubt with substantial doubt and grave uncertainty may suggest a lower standard of proof than that required by the Due Process Clause of the Fourteenth Amendment. In this state habeas corpus case arising under
West‘s appeal requires that we cоnsider the meaning of AEDPA‘s retroactivity requirement. The District Attorney urges a restrictive reading, limiting the “made retroactive” exception to situations in which the Supreme Court has explicitly stated that a new rule of law is to be applied retroactively or has actually applied the rule in a retroactive manner. We conclude, however, that the statutory language is not so narrow. AEDPA‘s text does not restrict retroactive rules to those “held retroactive” or “applied retroactively” by the Supreme Court, but rather employs the more general term “made retroactive.” At the time Congress enacted AEDPA, prevailing Supreme Court precedent “made retroactive” on habeas review new rules that implicated the fundamental fairness of a criminal proceeding and related to the accuracy of the underlying conviction, see, e.g., Teague v. Lane, 489 U.S. 288 (1989), and we assume Congress to have been aware of this practice. The Supreme Court‘s declaration in Sullivan v. Louisiana, 508 U.S. 275 (1993), that a Cage error represents a “structural defect” that effectively nullifies the prior proceeding indicates that the Cage rule satisfies these fundamental fairness and accuracy requirements.
In our view, even though Sullivan did not arise in the habeas context, it left no doubt as to how the Cage rule fits within retroactivity analysis. Indeed, prior to AEDPA‘s passage, several Courts of Appeals had found Cage available for retroactive application in habeas proceedings in light of Sullivan, largely obviating the Supreme Court‘s need to make a more explicit announcement (and rendering it less likely that there will ever be one). We believe that, in this setting, Teague retroactivity survives AEDPA‘s enactment, and we hold that the constitutional rule announced by Cage v. Louisiana has indeed been “made retroactive to cases on collateral review” within the meaning of
Even though we rule that West‘s petition survives the gatekeeping hurdle that the new rule must have been “made retroactive,” we conclude that West cannot obtain the relief he seeks, for he clearly cannot prevail on the merits of his claim. The jury instruction in his case did not differ significantly from language that has been previously approved of by this Court and the Supreme Court. We will therefore affirm the District Court‘s dismissal of West‘s habeas petition.1
I.
On July 15, 1983, a jury of the Philadelphia County Court of Common Pleas convicted petitioner West of first degree murder, criminal conspiracy, and possession of an instrument of crime. Prior to its deliberations, the jury received the following instruction on reasonable doubt from the trial judge, the Honorable Lisa Aversa Richette:
Now, I just want to say that we have heard these words a great deal, the reasonable doubt phrase, and I think that all three lawyers did talk about reasonable doubt in a very intelligent and correct way. I think one of them, Mr. Voluck, even gave an example that I usually give, that one about going to look at a house and as you have seen all the specs on the house, it sounds magnificent, new copper tubing and all the rest. And as you are coming out of the house, you notice a very large stain on one wall which indicates some major kind of internal leak. You don‘t go racing back to the real estate office with a hefty down
payment. You pause and you hesitate because this is a matter of high importance to yourself. You know, buying a house is probably the largеst single expenditure most of us make in our lifetime short of, God forbid, if we ever have incapacitating medical bills without medical insurance. But that‘s what you would do, you would pause and you would hesitate. And there are matters of high importance to all of us in our lives in which in evaluating the evidence that we are using to make that decision, we come up with the kind of and quality of evidence that makes us pause and hesitate before we make a decision. Now, it is this kind of doubt that we are talking about in this case, in all criminal cases, the kind of substantial doubt that makes people pause before they plunge into action that is going to involve some important interests on their part. So think about the evidence completely. Do you have that kind of doubt about the defendants’ guilt?
. . . .
What I was saying was that if you don‘t have this kind of doubt, then it is your duty to convict. Now, this doesn‘t mean to say that you should have no doubt, that you should be persuaded beyond all doubt because that is not Mr. McGill‘s burden. We said that earlier that there is -- there are almost no areas of human affairs in which there are no doubts. There is always a little edge of doubt somewhere. So we are not asking Mr. McGill to prove this case to you beyond a mathematical certainty, like an algebra or a calculus problem. What we are asking is that it be proved to you by the District Attorney beyond a reasonable doubt so that you don‘t have the kind of doubt that comes up in human affairs which makes a person pause and hesitate.
Now, this doubt, of course, has to arise from the evidence, not from your own suspicions or your own speculations or your own predispositions, but after considering the evidence if you have this doubt, then I say you have a duty to acquit.
West received a life sentence. After exhausting his direct appeals in the Pennsylvania state courts, which resulted in the vacatur of his judgment of sentence as to his conviction for possessing an instrument of crime but left his other sentences undisturbed, he filed a federal habeas corpus petition that was denied on the merits on July 12, 1990, four months before the Supreme Court decided Cage v. Louisiana, 498 U.S. 39 (1990).
Cage held that jury instructions that equated reasonable doubt with “actual substantial doubt” and “grave uncertainty” in conjunction with language calling for “moral certainty” suggested a higher degree of doubt than allowed by the reasonable doubt standard.2 As a result, such instructions have the potential of allowing a conviction based on proof below the minimum required by the Due Process Clause. See id. at 41. Thereafter, in Sullivan v. Louisiana, 508 U.S. 275 (1993), the Court declared that harmless error analysis does not apply to an instruction that does not meet the rule articulated in Cage.3
On May 10, 1991, West filed a petition under Pennsylvania‘s Post Conviction Relief Act (“PCRA“),
West filed his second petition for federal habeas relief on April 1, 1997, raising the same issues as his PCRA petition, and arguing that the jury instructions he received violated Cage. Pursuant to
In their argument before the magistrate judge to whom the case was assigned, the state appellees maintained that, notwithstanding our finding that West met the prima facie showing required to file a successive petition under
II.
AEDPA amended
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a priоr application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offеnse.
West does not offer any newly discovered or innocence-establishing facts, so our decision depends on
A.
Were the Supreme Court to state explicitly that Cage is retroactive on collateral review or retroactively apply Cage, the issue would be resolved. West contends that the Court has already retroactively applied Cage in Adams v. Evatt, 511 U.S. 1001 (1994), a pre-AEDPA case. There, in considering a habeas petition, the Court of Appeals for the
West сlaims that the Supreme Court‘s granting of certiorari, vacatur of the appellate court‘s judgment, and remand to the Court of Appeals (a “GVR” order), effectively made Cage retroactive on collateral review, a conclusion buttressed by the Court of Appeals‘s changed decision after the GVR order. We need not tarry long over this argument. The Supreme Court has made clear that, though remand may indicate that intervening precedent is sufficiently analogous or decisive to compel re-examination, it is not a “final determination on the merits.” Henry v. City of Rock Hill, 376 U.S. 776, 777 (1964). More recently, the Court has stated that, although GVR orders may be issued in situations where redetermination in light of intervening developments may decide the merits of a case, they require only “consideration” by the lower court and are not summary reversals. See Lawrence v. Chater, 516 U.S. 163, 167-68 (1996); see also Fontroy v. Owens, 23 F.3d 63, 66 (3d Cir. 1994); Hughes Aircraft Co. v. United States, 140 F.3d 1470, 1473 (Fed. Cir. 1998) (“Vacatur and remand by the Supreme Court, however, does not create an implication that the lower court should change its prior determination.“).
In his reply brief, West concedes that “[i]n form, a GVR order may never be a final decision on the merits,” but contends that “in substance, it sometimes is.” Reply Br. at 2. We decline to engage in the parsing of Supreme Court intent necessary to breathe life into so abstract a contention. Whatever a GVR‘s order value as a predictor of the Court‘s position on a particular matter, we do not treat such an order as a dispositive ruling. See Rodriguez v. Superintendent, Bay State Correctional Ctr., 139 F.3d 270, 276 (1st Cir. 1998). Other than his attempt to rely on Adams, West offers no Supreme Court precedent that he claims explicitly states that the Cage rule is to be applied retroactively for purposes of
In determining which new rules of law are retroactive under AEDPA, we are, of course, bound by the statute‘s plain meaning. See Wilson v. United States Parole Comm‘n, 193 F.3d 195, 198 (3d Cir. 1999) (“We must give the natural and customary meaning to the words, and if that is plain, our sole function is to enforce it according to its terms.” (citing Caminetti v. United States, 242 U.S. 470, 485 (1917))). Unfortunately, as the Supreme Court itself has recognized, AEDPA is less than a masterpiece of clarity. See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (“All we can say is that in a world of silk рurses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting.“).
1.
The plain meaning argument against Cage retroactivity is simply stated: If the Supreme Court has never explicitly applied the rule retroactively or stated that the rule so applies, a successive habeas corpus petition based on Cage is unavailable because Cage has not been “made retroactive.” Several of our sister circuits have already employed this logic to exclude successive petitions based on Cage. See In re Smith, 142 F.3d 832, 835-36 (5th Cir. 1998); Rodriguez v. Superintendent, Bay State Correctional Ctr., 139 F.3d 270 (1st Cir. 1998); In re Hill, 113 F.3d 181 (11th Cir. 1997), or other “new” rules for which petitioners sought retroactive application, see Bennett v. United States, 119 F.3d 470 (7th Cir. 1997); In re Vial, 115 F.3d 1192 (4th Cir. 1997) (en banc).
We do not, however, share the view of these courts of appeals that Congress‘s directive is so clear. More spеcifically, we are not convinced that “made retroactive” deserves the restrictive gloss applied by these courts in construing the term. Although “made retroactive” obviously encompasses direct retroactive application of a rule by the Supreme Court or express statements to that effect, we doubt that those meanings exhaust the phrase. Had Congress intended to cabin AEDPA retroactivity in that manner, it could have employed more specific terminology. Terms such as “held retroactive” or “applied retroactively”
Such an alternative existed when Congress passed AEDPA, through the framework created by Teague v. Lane, 489 U.S. 288 (1989). Teague established that federal courts may retroactively apply new rules of law on habeas petitions if the rules are “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,” Graham v. Collins, 506 U.S. 461, 478 (1993) (internаl quotations omitted), that “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”5 Sawyer v. Smith, 497 U.S. 227, 242 (1990) (internal quotations omitted) (emphasis in the original); see also Bousley v. United States, 118 S. Ct. 1604, 1610 (1998) (“[U]nless a new rule of criminal procedure is of such a nature that `without [it] the likelihood of an accurate conviction is seriously diminished, there is no reason to apply the rule retroactively on habeas review.’ ” (quoting Teague, 489 U.S. at 313)).6
In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Supreme Court made clear that the Cage rule involves procedural elements essential to the fundamental fairness and accuracy of a criminal proceeding. Sullivan declared that harmless error analysis does not apply to an
Sullivan had a significant effect on the reception and interpretation of Cage for retroactivity purposes. Prior to Sullivan, several Courts of Appeals refused to apply Cage retroactively. See Adams I, supra; Skelton v. Whitley, 950 F.2d 1037, 1044-45 (5th Cir. 1992). Since then, however, the decisions have been monolithically in favor of retroactivity. See Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998) (en banc); Adams III, 41 F.3d at 179 (“[T]he rule that a constitutionally deficient reasonable doubt instruction violates the Due Process Clause satisfies Teague‘s second exception. It should be applied retroactively.“); Nutter v. White, 39 F.3d 1154, 1158 (11th Cir. 1994) (“[H]ere we confront one оf those rare instances where our interest in certainty is so clearly implicated that finality interests must be subordinated. In sum, together with Sullivan, Cage has reshaped our view of the importance of precise reasonable doubt instructions.“).
Though this Court has, until now, reserved the issue, see Flamer v. Delaware, 68 F.3d 736, 756 n.25 (3d Cir. 1995) (en banc), it seems clear that, were we operating in the pre-AEDPA context, we would recognize Sullivan as compelling retroactive application of Cage to habeas petitions. A “structural” error so severe that it resists harmless error analysis because it effectively nullifies the guilty verdict, as Sullivan described a Cage error to be, see 508 U.S. at 279-80, must necessarily implicate the fundamental fairness of the proceeding in a manner that calls the accuracy of its
2.
We must, however, decide if AEDPA eliminates traditional Teague retroactivity analysis for pre-AEDPA decisions by the Supreme Court. We conclude that precedent that makes clear that a new constitutional rule fits the Teague retroactivity exception suffices to make a rule retroactive for purposes of successive habeas petitions under AEDPA. This is so even if the pronouncements are not made in the context of an actual retroactive application of the new rule on habeas review.
In so doing, we assume that when Congress passed AEDPA, it was aware of then-current practices in the courts vis-a-vis retroactivity. See Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97 (1979) (“It is always appropriate to assume that our elected representatives, like other citizens, know the law.“); Sandoval v. Reno, 166 F.3d 225, 235 (3d Cir. 1999) (declaring Congress aware of relevant court precedents in enacting AEDPA). At the time of AEDPA‘s
Our reasoning is bolstered by the fact that Sullivan‘s clarity obviated the need for the Supreme Court to make a future, more explicit, pronouncement on whether Cage should be applied retroactively. In practical terms, Sullivan choked off the flow of cases in which an explicit pronouncement might be necessary. As federal courts follow the Supreme Court‘s lead, see, e.g., Adams III, 41 F.3d at 178-79; Nutter, 39 F.3d at 1158, there will be no reason to make matters explicit, as the issue will not reach the Supreme Court on appeal when retroactivity was obvious. Adams II appears the rare case in which the Court had a chance to address the issue, but it remanded in light of the relative freshness of Sullivan to give the court of appeals an opportunity to pass on the issue itself. Though the GVR order in Adams II is not a retroactive application of Cage, see supra Part II.A, it is quite persuasive on the question of Sullivan‘s applicability to the Cage retroactivity issue notwithstanding the fact that Sullivan arose on a direct appeal.
We acknowledge that other courts have taken a different view on retroactivity under AEDPA. See, e.g., In re Vial, 115 F.3d 1192 (4th Cir. 1997) (en banc). In Vial, the court ruled that for purposes of a
As discussed above, we differ on what a plain language approach compels in this case. We note also that the Fourth Circuit acknowledged that, prior to AEDPA, the Supreme Court had no reason to be more explicit in its pronouncements on retroactivity. “Of course, it seems unlikely that the Supreme Court would grant certiorari to declare the applicability of a rule announced on direct review to collаteral proceedings when . . . lower federal courts uniformly rule in favor of collateral availability.” Id. at 1196 n.8. A consequence of the Fourth Circuit approach, therefore, would be to preclude habeas review for claims most clearly deserving of retroactive application. In the absence of more specific language, we do not think this was Congress‘s intention in passing AEDPA.
For all of these reasons, we hold that Cage claims have been “made retroactive” for purposes of
III.
In holding that Cage claims are available for retroactive application under AEDPA, we do not rule that West is entitled to the relief he seeks. Several issues stand between West and a favorable judgment on the merits. First, though West‘s initial petition for habeas relief raised only issues of inеffective assistance of counsel, a panel of this Court construed West‘s request as including both ineffective assistance and due process claims. The question remains whether a due process claim has met exhaustion requirements and whether it has been procedurally defaulted. Another potential issue is whether the claim was “previously unavailable” for purposes of AEDPA, see
We might determine these issues in the first instance or remand them to the District Court. Alternatively, we may exercise our аbility to dispose of habeas cases adversely to a petitioner regardless of considerations of exhaustion if the merits are clearly against the petitioner. See
The portion of the jury instruction at issue in this case does not appear to differ significantly from an instruction that we approved in Flamer v. Delaware, 68 F.3d 736 (3d Cir. 1995). In Flamer, this Court, sitting en banc, held that refusing, on grounds of procedural default, to review a jury instruction that contained a sentence equating substantial doubt and reasonable doubt would not constitute a miscarriage of justice because the instruction was similar to one approved of by the Supreme Court. The challenged instruction stated:
Reasonable doubt does not mean a vague, speculative or whimsical doubt, nor a mere possible doubt, but a substantial doubt and such a doubt as intelligent, reasonable and impartial men and women may honestly entertain after a careful and conscientious cоnsideration of the evidence in the case.
Id. at 757 (emphasis in original). We stated that11 notwithstanding the equation of substantial doubt to a reasonable doubt, the instruction “contrasted a `substantial doubt’ with `a doubt arising from a mere possible doubt,’ `a vague, speculative’ doubt, and a `whimsical doubt.’ ” Id. at 757. Similar use of the term “substantial doubt” was approved by the Supreme Court in Victor v. Nebraska, 511 U.S. 1 (1994).
Addressing this issue at oral argument, West‘s counsel offered arguments seeking to distinguish the instructions at issue here from those in Flamer by noting that the instructions by the trial judge did not similarly contrast substantial doubt with a merely speculative or fanciful doubt, thereby leaving the implication that the term “substantial” was used in the sense of connoting a large amount, rather than the accеptable “not imaginary.” We are unpersuaded. We bear in mind that jury instructions are to be considered as a whole. “[T]he Constitution does not require that any particular form of words be used in
Now, it is this kind of doubt that we are talking about in this case, in all criminal cases, the kind of substantial doubt that makes people pause before they plunge into action thаt is going to involve some important interests on their part.
. . .
What we are asking is that it be proved to you by the District Attorney beyond a reasonable doubt so that you don‘t have the kind of doubt that comes up in human affairs which makes a person pause and hesitate.
App. 119-21 (emphasis added).
In Victor, the Supreme Court stated that even though the instruction at issue was not a constitutional violation12 because it contrasted substantial doubt with a fanciful conjecture, “[i]n any event, the instruction provided an alternative definition of reasonable doubt: a doubt that would cause a reasonable person to hesitate to act. This is a formulation we have repeatedly approvеd.” Victor, 511 U.S. at 20.12 The Court concluded that such an instruction is not likely to mislead a jury. “[T]o the extent the word `substantial’ denotes the quantum of doubt necessary for acquittal, the hesitate to act standard gives a common sense benchmark for just how substantial such a doubt must be.” Id. at 20-21. It is clear that that is precisely what the jury instruction in West‘s case did. Therefore, although a sentence that appears to equate reasonable doubt and substantial doubt is problematic, see id. at 19, such a statement used one time in an otherwise unobjectionable charge does not render the instruction constitutionally suspect as a whole.13
We therefore conclude that West is unable to prеvail on the merits. Accordingly, we decline to consider the other, unresolved, issues that could potentially preclude review of his Cage claim.
For the foregoing reasons, we will affirm the District Court‘s order dismissing West‘s habeas petition.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit
Notes
Id. at 40 (emphasis in the original).If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant‘s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual
substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.
Id. at 279-80 (citations omitted) (emphasis in the original).Harmless-error review looks, we have said, to the basis on which “the jury actually rested its verdict.” The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fаct rendered--no matter how inescapable the findings to support that verdict might be--would violate the jury-trial guarantee.
Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-
reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can oрerate. The most an appellate court can conclude is that a jury would surely have been found petitioner guilty beyond a reasonable doubt--not that the jury‘s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. The Sixth Amendment requires more than appellate speculation about a hypothetical jury‘s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.
The panel was unable to apply Cage retroactively because of prior precedent, but its discussion of the issue was the basis of the en banc court‘s decision to make Cage retroactive for Teague purposes. See Humphrey v. Cain, 138 F.3d 552, 553 (5th Cir. 1998) (en banc).In our view, the Supreme Court has made it plain that Cage-Victor errors fit with the second Teague exception. The Court in Sullivan v. Louisiana, 508 U.S. 275 (1993), explained that denying the right to a jury verdict beyond a reasonable doubt is a structural defect. Such an error takes away a “`basic protectio[n]’ whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function.” Id. at 281. In other words, a jury that purports to convict based on a constitutionally defective reasonable-doubt instruction has in fact not rendered any conviction at all.
Id. at 18 (emphasis in the original).“Reasonable doubt” is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the
represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt reasonably arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the State, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.