                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2001

Szuchon v. Lehman
Precedential or Non-Precedential:

Docket 00-9000




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Recommended Citation
"Szuchon v. Lehman" (2001). 2001 Decisions. Paper 271.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/271


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Filed November 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-9000 and 00-9001

JOSEPH SZUCHON,
       Appellee/Cross-Appellant

v.

JOSEPH LEHMAN, Commissioner; ANDREW DOMOVICH,
Warden, State Correction Institution at Pittsburgh;
PENNSYLVANIA DEPARTMENT OF CORRECTIONS,
       Appellants/Cross-Appellees

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 94-cv-00195E)
District Judge: Honorable William L. Standish

Argued May 24, 2001

Before: RENDELL, GREENBERG and COWEN,
Circuit Judges.

(Filed: November 20, 2001)

       Amy Zapp, Esq. [ARGUED]
       Office of Attorney General of
        Pennsylvania
       Department of Justice
       Strawberry Square, 15th Floor
       Harrisburg, PA 17120

        Counsel for Appellants/Cross
       Appellees
       Caroline M. Roberto, Esq. [ARGUED]
       1600 Law & Finance Building,
        5th Floor
       Pittsburgh, PA 15219

          -and-

       Lynn A. Ellenberger, Esq.
       1330 West Huron Street, Suite 2
       Chicago, IL 60622

        Counsel for Appellee/Cross-
       Appellant

OPINION OF THE COURT

RENDELL, Circuit Judge.

We are asked to review the District Court's order granting
in part and denying in part Joseph Szuchon's petition for a
writ of habeas corpus pursuant to 28 U.S.C. S 2254. A
Pennsylvania jury convicted Szuchon of first-degree murder
of his former girlfriend, Judy Snyder, during a nighttime
rampage which we describe in detail below. The jury then
sentenced him to death. Szuchon asserted numerous
claims of error in his habeas petition in connection with
both the trial and sentencing.

The District Court denied relief on all trial phase claims,
and Szuchon cross-appeals from that judgment. For the
reasons set forth below, we will grant Szuchon a certificate
of appealability for his claims regarding the admission of
certain psychiatric evidence in violation of Estelle v. Smith,
451 U.S. 454 (1981), but we will affirm the District Court's
denial of relief. A certificate of appealability will be denied
on the remaining trial phase claims.

As to the sentencing phase, the District Court held that
the jury instructions regarding the mitigating
circumstances violated the holding of Mills v. Maryland,
486 U.S. 367 (1988), and it granted the writ on the
condition that the state court conduct a new sentencing
proceeding or impose a term of life imprisonment. The
Commonwealth appeals, arguing, inter alia, that the Mills

                               2
claim is procedurally defaulted because Szuchon failed to
exhaust his Mills claim in state court, and state remedies
are now foreclosed. Although we conclude that the
Commonwealth may have waived this defense by failing to
raise it in its answer to the habeas petition, we will address
the question of whether the claim is procedurally defaulted.
We conclude that the Mills claim is defaulted and barred
from review on the merits given Szuchon's inability to show
cause or a fundamental miscarriage of justice.
Consequently, Szuchon cannot pursue habeas relief based
on Mills. Szuchon, however, also cross-appeals from the
denial of his remaining sentencing claims, one of which was
that the state court improperly permitted the exclusion at
voir dire of six prospective jurors who merely voiced
opposition to the death penalty. We hold that the exclusion
of the prospective jurors violated Szuchon's Sixth and
Fourteenth Amendments rights under Witherspoon v.
Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469
U.S. 412 (1985), and thus a new sentencing is required.
Accordingly, we will affirm, on other grounds, the District
Court's decision to grant the writ in connection with
Szuchon's sentencing.

I. BACKGROUND

We borrow the factual recitation from one of the
Pennsylvania Supreme Court's opinions in this matter:

       The events culminating in an evening of terror on
       April 14, 1981 for three young people in Erie County
       began with the breakdown of [Szuchon]'s relationship
       with Judy Lynn Snyder and his inability to deal with
       that breakdown. [Szuchon] and Ms. Snyder had been
       involved in a stormy relationship over a period of
       several years, including periods of time in which they
       lived together in California and in Philadelphia. Toward
       the end of 1980, Ms. Snyder left [Szuchon] in
       Philadelphia and returned to her parents' home in Erie.

       Refusing to accept that the relationship was over,
       [Szuchon] began to harass Ms. Snyder with telephone
       calls at her parents' home. [Szuchon]'s love for Judy
       Snyder progressively transformed to hatred and he

                               3
began to tell various people how he was going to kill
her with a Winchester rifle or cut her from ear to ear
-- if he could not have her, no one would. Eventually,
[Szuchon] returned to Erie to pursue Ms. Snyder.

In Erie, [Szuchon] continued to harass Judy Snyder at
her parents' home, with Erie police being dispatched to
the home on two occasions to remove [Szuchon] from
the premises. [Szuchon] also continued to tell others
that he intended to kill Ms. Snyder as well as her
"boyfriend." Finally, on April 14, 1981, [Szuchon]
purchased a Winchester rifle from Gorenflo's Gunsmith
in Erie, purchased bullets from the Erie Sport Store,
loaded the rifle and drove to the Bottom Line, a
restaurant/tavern where Judy Snyder was working.

[Szuchon] parked in the lot of the Bottom Line and
read a newspaper while he waited for Ms. Snyder to get
off work. When her shift was finished, she and two
friends, Aldo DeSanto and Mary Sadowski, left the
Bottom Line to go to Judy's car, whereupon the three
were confronted by [Szuchon], holding the Winchester
and stating "If you all don't get into the car, I'll blow
your fucking heads off.". . . All four then got in Ms.
Snyder's car with Judy driving, Mary in the front
passenger seat, and Aldo in the back seat with
[Szuchon].

[Szuchon] then directed Ms. Snyder to drive to an
isolated area, the state game lands. As they drove,
[Szuchon] kept the gun pointed at them and, at one
point, told the three to "make your act of contrition or
say your confessions if you want to go to heaven
because at the end of this night I'm surely going to
hell." . . . Mary Sadowski, certain she was going to die
at [Szuchon]'s hands, jumped from the moving car (at
50 m.p.h.) and escaped. . . . Somehow she avoided
serious injury, ran to a house and called the police.

[Szuchon] ordered Ms. Snyder to continue to drive to
the game lands. Upon arrival there (the drive took
approximately 15-20 minutes), he ordered her and Mr.
DeSanto to walk into a corn field. The latter took
several steps into the field, but Ms. Snyder refused.

                        4
When she persisted in refusing to go on, [Szuchon]
aimed the gun at Ms. Snyder, she turned, and
[Szuchon] shot her in the back. Mr. DeSanto jumped to
the ground, rolled, then got up and ran. While running,
he heard two more shots. He finally reached a
farmhouse and the owners called the police.

Shortly thereafter, Pennsylvania State Troopers arrived
at the scene and discovered Ms. Snyder's abandoned
car, and then located her body. She had been killed by
two bullets that had pierced her back from different
angles. [Szuchon] was nowhere to be found, and a
police manhunt was initiated.

Later that evening, Frederick Pusch was driving his
vehicle on an isolated road south of Erie when he
encountered [Szuchon] who informed Mr. Pusch that
his car had broken down and that he needed to use a
phone. Mr. Pusch drove [Szuchon] to Pusch's cottage at
Canadohta Lake. While at the cottage, [Szuchon]
informed Mr. Pusch that he had just killed his
girlfriend and that another girl and a guy had gotten
away. The next morning (April 15th), [Szuchon] placed
a message with the Erie Police Department requesting
that an officer with whom he was acquainted, Detective
Richard Runstedler, come to Canadohta Lake so that
he could turn himself in. Detective Runstedler and
another officer drove to Canadohta Lake and took
[Szuchon] into their custody at approximately 12:15
p.m. on April 15, 1981.

. . . [Szuchon] was taken to the state police barracks
where he was given his Miranda warnings, which he
waived. [Szuchon] then confessed to kidnaping the
three victims at gunpoint, intending to take them to
the country to kill them. [Szuchon] stated that he
intended to kill them because Judy would not return to
him as his girlfriend, and because he perceived Aldo as
"cutting in on him" and felt that Mary was meddling
and interfering with his relationship with Judy.
[Szuchon]'s version of the events was essentially
consistent with the testimony of the two kidnap
victims. [Szuchon] told Trooper Povlick that he told Ms.
Snyder "how much he loved her, and at this point she

                        5
       laughed and turned her back and he shot her." . ..
       [Szuchon] also informed Trooper Povlick that he had,
       the day of the homicide/kidnaping, ingested a "couple
       lines" of cocaine and "five to six quaalude tablets."
       . . . No evidence of drugs or paraphernalia were found
       on [Szuchon].

Commonwealth v. Szuchon, 484 A.2d 1365, 1368-69 (Pa.
1984).

In October 1981, a jury in the Court of Common Pleas for
Erie County convicted Szuchon of first-degree murder,
three counts of kidnaping, two counts of terroristic threats,
and two counts of reckless endangerment. The jury
acquitted Szuchon on a charge of attempted murder of Aldo
DeSanto. A sentencing proceeding was conducted before
the same jury shortly after the verdict. Neither the
Commonwealth nor Szuchon introduced new evidence at
sentencing. The Commonwealth argued the existence of two
statutory aggravating circumstances: Szuchon committed
the killing while in perpetration of a felony (kidnaping), and
he knowingly created a grave risk of death to individuals
(DeSanto and Sadowski) other than the murder victim. See
42 Pa. Cons. Stat. SS 9711(d)(6) and (7). Szuchon argued
four mitigating circumstances: although he pled guilty to a
robbery charge in 1974, he had no "significant history" of
prior convictions; he was under the influence of extreme
mental or emotional disturbance; his capacity to appreciate
the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired; and
"other evidence of mitigation"-- namely, that he "was
substantially involved in the usage and abuse of drugs and
alcohol for a long period of time." Appendix ("App.") 3156;
see SS 9711(e)(1), (2), (3), and (8). The jury found both of the
aggravating circumstances and certain of the mitigating
circumstances to exist, and it concluded that the mitigating
circumstances were outweighed. Consequently, it imposed
a sentence of death on the first-degree murder conviction.1
See S 9711(c)(iv). The trial court denied Szuchon's motion
for a new trial, and the Pennsylvania Supreme Court
_________________________________________________________________

1. Szuchon received consecutive terms of incarceration on the other
convictions.

                               6
affirmed the convictions and sentences on direct appeal.
Commonwealth v. Szuchon, 484 A.2d 1365 (Pa. 1984).

At trial, Szuchon had not denied that he committed the
murder but presented a diminished-capacity defense,
"which entails the assertion that the defendant's mental
condition at the time of the offense was such that he was
incapable of forming the specific intent to kill."
Commonwealth v. Williams, 732 A.2d 1167, 1190 (Pa. 1999)
(citing Commonwealth v. Zettlemoyer, 454 A.2d 937, 943
(Pa. 1982)).2 Szuchon tried to show, through testimony from
the prosecution's witnesses, that he had ingested cocaine
and sedatives on the date of the murder, resulting in a
diminished capacity. The Pennsylvania Supreme Court
aptly rendered the following assessment of Szuchon's
defense:

       The only evidence as to [Szuchon]'s diminished
       capacity and his drugged or intoxicated condition came
       from [Szuchon] himself, through statements he had
       made to various people subsequent to the
       murder/kidnaping. This evidence was vague and
       equivocal and was overwhelmingly countered by the
       testimony of Aldo DeSanto, Mary Sadowski, Frederick
       Pusch (who was a teacher of the emotionally
       disturbed), the salesmen who sold [Szuchon] the rifle
       and bullets, the arresting officers and others, that on
       April 14 and 15, 1981, [Szuchon] was calm, deliberate
       and coherent and exhibited no signs of intoxication or
       drugged condition. Moreover, the Commonwealth
       introduced Dr. Walter Finken, a psychiatrist at Warren
       State Hospital who had examined [Szuchon], discussed
       his participation in the crimes with him and testified
       that in his opinion, at the time of the incident
       [Szuchon] was able to comprehend the nature and the
       quality of his acts, knew right from wrong, and was
       capable of forming the specific intent to commit
       murder.
_________________________________________________________________

2. By negating the element of specific intent, a successful diminished-
capacity defense reduces the charge from first to third-degree murder.
Commonwealth v. Travaglia, 661 A.2d 352, 359 (Pa. 1995).

                               7
Szuchon, 484 A.2d at 1369.

In 1986, Szuchon filed a pro se petition for state
collateral review under the Post-Conviction Hearing Act
("PCHA"). The trial court appointed counsel, who filed an
amended petition raising claims of trial court error and of
ineffective assistance of trial and appellate counsel. The
trial court denied the petition without an evidentiary
hearing, ruling that the claims were either meritless or
procedurally barred because they had been litigated on
direct appeal. The Superior Court affirmed, and the
Pennsylvania Supreme Court denied allowance to appeal.

In 1992, Szuchon filed a second counseled collateral-
review petition, this time under the amended and renamed
Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat.
S 9541 et seq. Szuchon again raised claims of ineffective
assistance of trial and appellate counsel. The trial court
ruled that the claims were waived either because they were
previously litigated or because Szuchon failed to raise them
in a prior proceeding. The Pennsylvania Supreme Court
affirmed. Commonwealth v. Szuchon, 633 A.2d 1098 (Pa.
1993).

In April 1994, the Governor of Pennsylvania signed a
warrant for Szuchon's execution. On July 1, 1994, Szuchon
moved for a stay and filed a counseled habeas petition
pursuant to 28 U.S.C. S 2254 in the District Court for the
Western District of Pennsylvania.3 After the District Court
granted the stay, but before the Commonwealth filed an
answer to the habeas petition, Szuchon moved to hold the
proceeding in abeyance and to continue the stay while he
exhausted state remedies on three claims that he had yet
to present to the state courts.4 The District Court granted
_________________________________________________________________

3. Szuchon had filed two previous habeas petitions, in 1985 and 1990,
both of which were dismissed without prejudice.
4. The three claims were (1) failure to instruct the jury that a life
sentence means no parole, Simmons v. South Carolina, 512 U.S. 154
(1994); (2) a Fifth Amendment violation in the admission of Dr. Walter
Finken's testimony and his report, Estelle v. Smith, 451 U.S. 454 (1981);
and (3) a double jeopardy violation in permitting the jury to consider the
aggravating circumstance of creating a grave risk of death to Aldo
DeSanto after it had acquitted Szuchon of the attempted murder of
DeSanto. Szuchon conceded that the Simmons claim had not been
presented to the state courts, and he noted that the Estelle and double-
jeopardy claims "appear not to have been exhausted." App. 184-85.

                               8
Szuchon's motion, held the proceeding in abeyance, and
ordered the stay continued.

In January 1996, Szuchon returned to state court and
filed a third post-conviction petition (his second petition
under the PCRA). The trial court ruled that the claims were
either previously litigated or waived for failure to raise them
in a prior proceeding. The Pennsylvania Supreme Court
affirmed. Commonwealth v. Szuchon, 693 A.2d 959 (Pa.),
cert. denied, 522 U.S. 889 (1997).

In March 1998, Szuchon filed in the District Court an
amended habeas petition in which he raised a total of 16
claims of error at trial and sentencing. The Commonwealth
filed an answer in which it expressly waived nonexhaustion
as to all claims. App. 284-85 ("To the extent that Petitioner
may have failed to exhaust available state remedies as to
any claim presented in the instant Petition, the
Commonwealth formally waives any non-exhaustion
defense it may have available."). As to the numerous claims
that Szuchon had presented to the state courts in his
second and third post-conviction petitions, the
Commonwealth argued that those claims were procedurally
defaulted, and it argued that the claim under Mills was
either barred by Teague v. Lane, 489 U.S. 288 (1989), or
without substantive merit. The Commonwealth did not
assert a procedural-default defense in its answer to the
Mills claim.

The matter was referred to a Magistrate Judge, who
concluded that all claims were exhausted and not
defaulted. Applying pre-AEDPA law because Szuchon's
initial habeas petition was filed prior to AEDPA's
enactment, the Magistrate Judge recommended that all
claims but one be denied, agreeing with Szuchon that the
jury instructions at sentencing violated the Eighth
Amendment under Mills. The Magistrate Judge
recommended that the writ be granted on the condition
that the Commonwealth either conduct a new sentencing
hearing within 120 days or impose life imprisonment.

The Commonwealth objected to the recommendation by
arguing for the first time that the Mills claim should be
denied as procedurally defaulted given Szuchon's failure to

                               9
exhaust the claim and the present unavailability of state
remedies. The District Court summarily overruled the
objections, adopted the Report and Recommendation,
granted the writ in accordance with the Magistrate Judge's
recommendation, and denied Szuchon's remaining claims.
The District Court also issued a certificate of appealability
but failed to specify the issues on which Szuchon had made
a substantial showing of the denial of a constitutional right.
See 28 U.S.C. S 2253(c)(3) ("The certificate of appealability
. . . shall indicate which specific issue or issues satisfy the
showing required . . . ."). The Commonwealth timely
appealed (C.A. No. 00-9000), and Szuchon timely cross-
appealed (C.A. No. 00-9001).

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.
S 2254(a). We have jurisdiction over the Commonwealth's
appeal pursuant to 28 U.S.C. S 1291. As to Szuchon's
cross-appeal, we have jurisdiction pursuant to 28 U.S.C.
SS 2253 and 1291 over the issues that satisfy the certificate
of appealability standard. See United States v. Cepero, 224
F.3d 256, 261-62 (3d Cir. 2000) (en banc) (holding that
issuance of a certificate of appealability is a jurisdictional
requirement). Because the District Court failed to specify
the issues for appeal, we will undertake that analysis here.5
_________________________________________________________________

5. Ordinarily, when a District Court grants a certificate of appealability
but fails to specify the issues for appeal, we would remand the matter for
a clarification of the order granting the certificate. See, e.g., United
States
v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999). We have elected not to
follow that course here, as the parties had fully briefed this matter by
the time it was brought to our attention that the certificate of
appealability was inadequate. See Williams v. United States, 150 F.3d
639, 641 (7th Cir. 1998) (holding that remand for specification of the
issues was unnecessary where appeal was fully briefed); Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997) (same). Moreover, given that
20 years have now passed since Szuchon's trial, we are reluctant to
delay the resolution of this matter with a remand. We, therefore, will
view the District Court's certificate as a nullity given its nonconformity
to S 2253(c)(3), and we construe Szuchon's timely filed notice of appeal
as a request for this Court to issue a certificate of appealability. See
Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001) ("Because Coady
filed a timely notice of appeal, we construe this notice as a request for
a certificate of appealability pursuant to Section 2253(c)(1) and Fed. R.
App. Proc. 22(b).").

                               10
A certificate of appealability may issue only upon"a
substantial showing of the denial of a constitutional right."
28 U.S.C. S 2253(c)(2). If "a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy S 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Our
review is plenary on the merits of the claims over which we
have jurisdiction, as the District Court relied exclusively on
the state court record in deciding the petition and did not
hold an evidentiary hearing. Hartey v. Vaughn , 186 F.3d
367, 371 (3d Cir. 1999). In addition, Szuchon filed his
initial petition prior to AEDPA's enactment, and the parties
do not dispute that pre-AEDPA law governs Szuchon's
claims. See Lindh v. Murphy, 521 U.S. 320, 326 (1997).6
Before AEDPA, state court factual findings were presumed
correct unless, inter alia, they were not" `fairly supported
by the record.' " Pemberthy v. Beyer, 19 F.3d 857, 864 (3d
Cir. 1994) (quoting the former 28 U.S.C. S 2254(d)(8)). State
court legal conclusions were reviewed de novo, as were
mixed questions of law and fact. McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999).

III. TRIAL CLAIMS

We first address Szuchon's cross-appeal from the denial
of his claims of error in connection with the trial. His
claims involve his right to due process, and his contention
that psychiatric evidence was not properly obtained and
was improperly used at trial. The District Court properly
reached the merits of these claims.

A. Due Process Claims

Szuchon contends that he was denied a fair trial because
the jury was prejudiced by comments it overheard; the jury
engaged in premature deliberations; the court ordered him
_________________________________________________________________

6. Although this action was commenced in the District Court pre-AEDPA,
this appeal was filed post-AEDPA, and thus we must apply the AEDPA
certificate of appealability requirement. Slack , 529 U.S. at 482.

                               11
shackled during the proceedings; and he was provided
insufficient notice that he faced the death penalty. We will
deny a certificate of appealability on each claim.

1. Prejudicial Comments

Szuchon's jury was sequestered throughout the trial, and
while out for dinner one weekend, a patron at a local
restaurant commented "hang the bastard" as three jurors
were entering the establishment. On a separate occasion
during that weekend, a patron at a different restaurant
remarked "he is guilty" within earshot of three different
jurors. The court's tipstaff promptly reported these
incidents the following Monday. Before resuming trial that
morning, the court conducted an individual voir dire with
each of the six jurors who were exposed to the remarks.
Each juror stated that the remarks would have no adverse
affect on their ability to remain impartial and to decide the
case solely on the evidence.

It is settled that "due process does not require a new trial
every time a juror has been placed in a potentially
compromising situation." Smith v. Phillips , 455 U.S. 209,
217 (1982). Instead, "[d]ue process means a jury capable
and willing to decide the case solely on the evidence before
it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such
occurrences when they happen." Id. Here, after learning of
the restaurant incidents, the judge promptly questioned the
jurors, each of whom separately and unequivocally stated
that the remarks would not affect their ability to decide the
case based on the evidence. After assessing the jurors'
credibility and observing their demeanor, the court found
that they would remain impartial and could continue to
serve. The record amply supports this finding, and we defer
to its correctness on federal habeas review. Patton v. Yount,
467 U.S. 1025, 1038 (1984). In addition, we reject
Szuchon's suggestion that the court was required to
question the jury as a whole; the judge was plainly within
his discretion in choosing to limit the questioning to the six
jurors who were exposed to the remarks. The record before
us provides no basis for second-guessing the trial judge's
handling of the situation.

                               12
Szuchon also contends that he was denied due process
by another alleged instance of improper jury contact. He
claims that, after he physically assaulted a state trooper
who was leaving the witness stand (an incident that
resulted in his shackling, which will be discussed below),
the jury was escorted from the courtroom, at which time
the court's tipstaff allegedly remarked that Szuchon's
behavior was the "worst . . . he had seen in his many years
of service at the courthouse." This incident was not brought
to the trial judge's attention. We are satisfied, nevertheless,
that the tipstaff's remark was not of the sort that could
have posed a threat to the jury's impartiality in its
consideration of the rather overwhelming evidence of
Szuchon's guilt of first-degree murder. The remark, while
inappropriate, did not deprive Szuchon of a fair trial.

2. Premature Deliberations

Szuchon alleges that the jury voted to convict him of
first-degree murder by the third day of the prosecution's
case, and that it decided to impose a death sentence by the
fourth or fifth day. He has submitted a declaration to this
effect from one member of the jury. These alleged
premature deliberations were not brought to the trial
court's attention. Although these allegations are certainly
troubling in the abstract, we discern no due process
violation on the record before us. "[W]hen there are
premature deliberations among jurors with no allegations of
external influence on the jury, the proper process for jury
decisionmaking has been violated, but there is no reason to
doubt that the jury based its ultimate decision only on
evidence formally presented at trial." United States v.
Resko, 3 F.3d 684, 690 (3d Cir. 1993) (emphasis in
original). Given the extensive evidence of Szuchon's guilt of
first-degree murder and the relative weakness of the
evidence regarding his diminished-capacity, we have no
reason to doubt that the jury's decision was based on the
evidence. Szuchon has made no showing that he was
prejudiced by the alleged premature deliberations. Cf.
Anderson v. Calderon, 232 F.3d 1053, 1098-99 (9th Cir.
2000) ("Anderson's claim [of premature deliberations] must
fail because there is absolutely no evidence that the alleged

                               13
misconduct has prejudiced Anderson in any way, much
less `to the extent that he has not received a fair trial.' ")
(citation omitted). Furthermore, the jury acquitted Szuchon
on the charge of attempted murder of Aldo DeSanto, which
suggests that it in fact gave due regard to the court's
instructions and deliberated the evidence at the close of the
trial. "When the jury is instructed to base its verdict solely
on the evidence and it acquits the defendant of certain
counts, such factors indicate that the jury was not biased."
United States v. DiSalvo, 34 F.3d 1204, 1226 (3d Cir. 1994)
(citing United States v. Thornton, 1 F.3d 149, 156 (3d Cir.
1993)). In short, the record indicates that the alleged
premature deliberations did not deprive Szuchon of his
right to a fair trial before an impartial jury.

3. Shackling

Szuchon contends that his trial was unfair because the
court ordered his legs and right hand shackled after he
assaulted a Commonwealth witness. Szuchon leapt from
his chair during the course of the trial and grabbed and
kicked a state trooper who was leaving the witnesses stand.
The assault occurred in full view of the jury, and court
security subdued Szuchon on the floor in front of the jury
box. As a result of the incident, and after hearing from
counsel, the trial court ordered Szuchon shackled to his
chair and counsel table for the remainder of the trial and
sentencing. Szuchon's left hand remained unshackled so
that he could take notes and assist counsel, and Szuchon
was not gagged.

In Illinois v. Allen, 397 U.S. 337 (1970), the Court
recognized that a defendant is prejudiced when he appears
before a jury in shackles: "Not only is it possible that the
sight of shackles and gags might have a significant effect on
the jury's feelings about the defendant, but the use of this
technique is itself something of an affront to the very
dignity and decorum of judicial proceedings that the judge
is seeking to uphold." Id. at 344. The Court added,
however, that sometimes "binding and gagging might
possibly be the fairest and most reasonable way to handle"
a disruptive defendant. Id.

                               14
The record here supports the decision to shackle
Szuchon given his violent and disruptive behavior,
particularly in light of the trial court's determination that
certain jurors were palpably frightened of Szuchon following
the assault. In addition to his assault upon the trooper,
Szuchon had been verbally disruptive on two prior
occasions during the trial. Szuchon had also become
noticeably upset after hearing the testimony of an earlier
prosecution witness, when he "attempted to get up from his
seat . . ., and said either I can't take this shit[or] I don't
have to tolerate this shit." App. 2920. After that earlier
incident, the court allowed defense counsel to remove
Szuchon from the courtroom for several minutes to calm
himself down. Szuchon had thus displayed a pattern of
disruptive conduct prior to the assault upon the trooper.

The trial court carefully weighed but rejected alternatives
to shackling, such as barring Szuchon from the courtroom
or issuing a contempt citation. The court also considered
but rejected the possibility of attempting to conceal the
shackles from the jury, explaining as follows:

       It's my opinion that a couple of jurors were so
       frightened last night that it would be more productive
       for them to know that he is in some fashion shackled
       to his chair, and it is my belief that the possibilities of
       the prejudicial effect of knowing that he is unable to
       leave his chair are far less than the productive, if you
       will, effect of them knowing that they can pay attention
       to the evidence without having to worry about the
       Defendant.

App. 2921-2922. Szuchon's counsel stated that they had no
objection to revealing the shackles to the jury, and counsel
raised no objection to the court's cautionary instructions
regarding the shackling.7 The record fully supports the trial
court's decision.

Szuchon contends that the shackling must have been
unduly prejudicial. He cites to the declarations that he has
_________________________________________________________________

7. Szuchon contends that counsel were ineffective in failing to object,
but
because the shackling was an appropriate sanction, the failure to object
was not unreasonable.

                               15
obtained from two members of the jury, both of whom note
that they "could not set aside the fact that Szuchon was
shackled," and they add that another juror "was utterly
terrified of Szuchon and believed that he would kill her and
her family." Based on these statements, Szuchon contends
that the shackling must have had a "substantial and
injurious effect or influence in determining the jury's
verdict." Br. of Cross-Appellant at 86. We find this
argument unpersuasive. It seems unlikely that any juror
could have ignored that Szuchon was shackled, and the
trial court took that fact into consideration, noting its view
that it would be better to reveal that Szuchon was shackled
than to have the jury sit in fear that he would again spring
forth and assault someone. And the jury certainly had
reason to fear Szuchon because he had aggressively
attacked a state trooper right in front of them. The trial
court reasonably concluded that the shackling was
warranted and that Szuchon's right to a fair trial would be
better served by revealing the constraints. The court also
carefully instructed the jury to remain focused solely on the
evidence. The declarations from the two jurors cast no
doubt upon the validity of the trial court's decision -- in
fact, the declarations seem to verify the court's assessment
that certain jurors were truly frightened and that shackling
would help them to focus on the evidence rather than on
Szuchon. We find no violation of due process.

4. Notice of the Death Penalty

Szuchon contends that he was provided inadequate
notice that he faced the death penalty. He relies exclusively
on Lankford v. Idaho, 500 U.S. 110 (1991). In that case, the
prosecution advised the defendant in a presentencing order
that it would not seek the death penalty. At sentencing,
there was no discussion of death as a possible sentence,
and the defendant argued only the merits of various terms
of imprisonment. The trial court sua sponte sentenced the
defendant to death. The United States Supreme Court
reversed, holding that the defendant was denied due
process because he did not have "adequate notice of the
critical issue that the judge was actually debating." Id. at
120. The Court explained that "[n]otice of issues to be

                                 16
resolved by the adversary process is a fundamental
characteristic of fair procedure." Id. at 126.

Szuchon's case is readily distinguishable from Lankford.
The trial court formally notified Szuchon on the record at
least a week before jury selection that he faced the death
penalty. The notice was given at the same time that
Szuchon's trial counsel were appointed (as will be
discussed in more detail below), and thus Szuchon's
counsel went to trial with as much notice of the death
penalty as they possibly could have had under the
circumstances. Moreover, Szuchon insisted on proceeding
to trial with only one week for his counsel to prepare, as he
refused to waive the 180-day speedy-trial rule. We would be
hard-pressed, at the least, to distinguish the self-inflicted
harm that Szuchon caused by refusing to continue the trial
from any prejudice that might have resulted from his not
having had more notice that this was a death penalty case.

Szuchon has also made no showing that he was
prejudiced by the alleged failure to have earlier notice: there
is no evidence that either pre-trial counsel or trial counsel
were hindered in their preparations due to the allegedly
inadequate notice. Moreover, Szuchon makes no claim that
he was unaware of the evidence and witnesses that were
presented against him at trial and sentencing. Cf. Duvall v.
Reynolds, 139 F.3d 768, 797-98 (10th Cir. 1998) (finding
no due process violation even though state failed to afford
defendant notice of evidence it intended to produce to
establish its aggravating circumstance); Hale v. Gibson, 227
F.3d 1298, 1236 (10th Cir. 2000) (holding that there was
no due process violation where state amended bill of
particulars on first day of trial to add an aggravating
circumstance that it had not previously noted). Nothing in
this record suggests that the notice Szuchon received
violated his right to due process.

In sum, Szuchon has not made a substantial showing of
the denial of a constitutional right on his due process
claims, and we will deny a certificate of appealability.

B. Psychiatric Evidence Claims

Szuchon contends that he was denied his right under
Ake v. Oklahoma, 470 U.S. 68 (1985), to the assistance of

                                 17
a forensic psychiatrist at state expense. He also contends
that, as to the psychiatric examination that was conducted,
he was denied his right under Estelle v. Smith , 451 U.S.
454 (1981), to be advised that his statements could be used
against him at trial. Our analysis of these claims requires
that we first summarize the relevant pre-trial events.

After his preliminary arraignment, Szuchon privately
retained his own counsel, who promptly filed a "Motion for
Mental Health Examination." Counsel requested"an
examination to determine [Szuchon's] present mental
health status, and his present status as to competency."
App. 331. He also asked that the court order "a
determination as to [Szuchon's] criminal responsibility, as
provided within the Mental Health Act." Id. The trial court
granted the motion and ordered that "any reports of any
examination shall be supplied to the attorney for the
Defendant and the Commonwealth." App. 333.

Szuchon was transferred to Warren State Hospital, where
he was examined by Dr. Walter Finken. The examination
covered Szuchon's mental health, his competency to stand
trial, and his "criminal responsibility." It is undisputed that
Szuchon was not advised that his statements could be used
against him at trial and sentencing. Doctor Finken's
findings were reported to the trial court in a letter signed by
Dr. Harold J. Reinhardt, also of Warren State Hospital.
Copies of the letter (which we will refer to as the"Finken
Report") were forwarded to the Commonwealth and to
Szuchon's counsel. Doctor Reinhardt (who it is clear merely
signed the letter, the letter actually contained the findings
of Dr. Finken) advised the court as follows: Szuchon was
competent to stand trial; he was not insane within the
meaning of the M'Naughten test; although Szuchon
indicated that he was on various drugs at the time of the
offenses, there was no indication that he suffered from "a
serious toxic confusion or psychotic state at the time"; and
"[i]n interviewing the patient, one did not get the impression
that he planned or obtained the gun with the specific
purpose of shooting Judy." Supplemental Appendix 5.

Thereafter, Szuchon filed a "Motion for Appointment of a
Forensic Psychiatrist," noting that he was exploring an
insanity defense but that he lacked sufficient funds to

                               18
retain a psychiatrist "who could examine the Defendant,
and testify as to the Defendant's mental state and capacity
at the time of the incident at Defendant's trial." Szuchon
then filed a "Notice of Insanity or Infirmity Defense" and
advised that he would provide the name of any expert he
would call after he received funds from the court to hire a
psychiatrist. On September 3, 1981, after oral argument,
the trial court denied without prejudice Szuchon's motion
for appointment of a psychiatrist. The reasons for the
court's ruling are not apparent in the record before us.

On September 28, 1981, Szuchon's counsel moved to
withdraw because Szuchon was refusing to cooperate in his
defense and their relationship had deteriorated. The trial
court granted the motion and advised Szuchon of the need
to promptly retain new counsel. Although incarcerated,
Szuchon was afforded numerous opportunities to contact
his family by telephone to arrange for the hiring of a new
attorney. Szuchon neglected to do so. On October 5, the
trial court appointed two attorneys as Szuchon's counsel in
the event Szuchon failed to hire his own. Szuchon
consented to the court's appointment of counsel, App. 375-
76, and he never privately retained counsel. At a hearing
the next day, counsel lodged a motion to have Szuchon
examined by Dr. David Paul, a local forensic psychiatrist.
App. 1583. The trial court granted the motion. App. 377. In
the days that followed, however, Szuchon refused to be
examined because he claimed that Dr. Paul would be
biased given his past work as a consultant for the Erie
County Jail.

Jury selection commenced on October 12, which was less
than a week after Szuchon's counsel were appointed.
Szuchon, however, insisted on proceeding to trial on that
date, and he repeatedly refused a continuance. Szuchon
claimed that his right to a speedy trial would be violated by
any continuance, and thus he forced the trial to commence
even after the court made it clear to him that his counsel
would likely benefit from additional time to prepare.

As noted, Szuchon presented a diminished-capacity
defense, but he presented no expert mental-health
evidence. The prosecution, in contrast, presented the
testimony of Dr. Finken and introduced the Finken Report,

                               19
which contained numerous statements that Szuchon had
made about his role in the murder and his mental status.
The record is clear that the main purpose for which the
prosecution used Dr. Finken's testimony and the Finken
Report at trial was to establish that Szuchon acted with a
specific intent, which, in the end, was the only disputed
issue at trial given that Szuchon's defense was diminished
capacity and he made no attempt to deny that he murdered
Judy Snyder.

With this background, we turn to the claims under Ake
and Estelle. Szuchon contends that the trial court violated
Ake insofar as Dr. Finken was the expert appointed to
evaluate him, as Dr. Finken was not appointed to assist the
defense. The Supreme Court held in Ake that,"when a
defendant demonstrates to the trial judge that his sanity at
the time of the offense is to be a significant factor at trial,
the State must, at a minimum, assure the defendant access
to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation,
preparation, and presentation of the defense." 470 U.S. at
83. Had Dr. Finken been the only psychiatrist appointed in
this case, we would agree that Ake was not satisfied. The
record reflects that the trial court never ordered Dr. Finken
to assist the defense; Szuchon's counsel apparently had no
contact and did not discuss possible defenses with Dr.
Finken; and the Finken Report was addressed to, and
clearly prepared for the benefit of, the court. Under Ake,
"evaluation by a `neutral' court psychiatrist does not satisfy
due process." Smith v. McCormick, 914 F.2d 1153, 1158
(9th Cir. 1990).

But Dr. Finken was not the only psychiatrist appointed,
as the trial court granted Szuchon's request before trial to
be examined by Dr. Paul. Szuchon simply refused to be
examined by Dr. Paul and insisted on proceeding to trial
with no expert evidence. Ake, however, requires only that a
court provide "access" to an independent psychiatrist. Ake,
470 U.S. at 83. Szuchon maintained that Dr. Paul would be
biased, but Szuchon presented no evidence to substantiate
that allegation. Moreover, we certainly could not infer that
a bias might have existed given that it was Szuchon's
counsel who expressly requested that Dr. Paul be

                                20
appointed. Counsel obviously had no objection to Dr. Paul's
affiliation with the Erie County Jail, and there is absolutely
no evidence that Dr. Paul would have been unable to assist
the defense. On this record, the trial court satisfied Ake by
granting Szuchon's request to be examined by Dr. Paul, an
independent psychiatrist who was made available to the
defense at state expense. We will deny a certificate of
appealability on the Ake claim.8

Szuchon next claims that he was denied his Fifth
Amendment right under Estelle to be advised before his
examination with Dr. Finken that his statements could be
used against him. In Estelle, a state trial court ordered an
evaluation to determine the defendant's competency to
stand trial for capital murder. The defendant was not
informed of his Miranda rights before the evaluation, was
adjudged competent, and convicted. The defendant did not
raise a mental-status defense, and he offered no psychiatric
evidence. At the capital sentencing proceeding, the trial
court allowed the state to present the psychiatrist's
testimony concerning "future dangerousness." The
psychiatrist testified based not only upon his observations
of the defendant but also gave detailed descriptions of the
defendant's statements about the crime. The Supreme
Court vacated the death sentence, holding that "[a] criminal
defendant who neither initiates a psychiatric evaluation nor
attempts to introduce any psychiatric evidence may not be
compelled to respond to a psychiatrist if his statements can
be used against him at a capital sentencing proceeding."
451 U.S. at 468.

Szuchon argues that admission of Dr. Finken's testimony
and the Finken Report violated his privilege against self-
incrimination. He further claims that counsel were
ineffective in failing to object to admission of this evidence.9
_________________________________________________________________

8. The District Court denied relief on the ground that Ake could not
apply retroactively to Szuchon's case. Szuchon's conviction, however,
became final after Ake was decided, and thus Szuchon was entitled to
the benefit of that decision. Nevertheless, just as we can affirm a
judgment on the merits on an alternative basis, see, e.g., Felix v. Virgin
Islands Gov't, 702 F.2d 54, 57 (3d Cir. 1983), we can deny a certificate
of appealability on any ground with support in the record.

9. The Commonwealth argues that the Pennsylvania Supreme Court
rejected these claims in the third post-conviction proceeding as waived,

                               21
We will grant a certificate of appealability because Szuchon
has shown that it is at least debatable whether admission
of the Finken evidence was inconsistent with the holding in
Estelle. On the merits, however, we need not decide
whether the admission was in fact an Estelle violation, as
any error, even assuming there was one, was undoubtedly
harmless and insufficient to warrant habeas relief. Cf.
Penry v. Johnson, 121 S. Ct. 1910, 1919-20 (2001) ("Even
if our precedent were to establish squarely that the
prosecution's use of the Peebles report violated Penry's Fifth
Amendment privilege against self-incrimination, that error
would justify overturning Penry's sentence only if Penry
could establish that the error [was not harmless]").

A writ of habeas corpus may issue only if the reviewing
court finds that the constitutional error "had a substantial
and injurious effect or influence in determining the jury's
verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Even absent Dr. Finken's testimony and the Finken Report,
the Commonwealth presented overwhelming evidence of
Szuchon's specific intent to kill. The Commonwealth
established that Szuchon told numerous individuals before
the murder that he planned to kill Judy Snyder. After the
murder, Szuchon confessed to the police that he intended
to kill Snyder because she would not return to being his
girlfriend. The Commonwealth further established the
deliberate manner in which Szuchon purchased the bullets
and rifle the morning of the killing and later drove to the
restaurant where Judy Snyder worked, waiting patiently for
her in the parking lot while reading a newspaper. 10 Szuchon
_________________________________________________________________

and that Szuchon therefore committed a procedural default. We disagree.
The Pennsylvania Supreme Court denied these claims solely on the
merits, ruling that, "[s]ince appellant argued diminished capacity
throughout the guilt and penalty phases. . ., his Fifth Amendment
privilege against self-incrimination was not violated by Dr. Finken's
psychiatric examination and subsequent testimony." 693 A.2d at 963.
Thus, the merits are properly before us.

10. The Finken Report actually benefitted Szuchon on this front, as the
jury learned of Dr. Finken's opinion that, "[i]n interviewing the patient,
one did not get the impression that he planned or obtained the gun with
the specific purpose of shooting Judy."

                               22
kidnaped Snyder, DeSanto, and Sadowski at gunpoint,
telling them, "If you all don't get into the car, I'll blow your
fucking heads off." Szuchon, 484 A.2d at 1368. He kept the
rifle trained on the three victims as he forced them to drive
to a remote area, telling them to "make your act of
contrition or say your confessions if you want to go to
heaven because at the end of this night I'm surely going to
hell." Id. He ordered Snyder to walk into a corn field, and
when she refused, he shot her twice in the back. This
evidence unequivocally established that Szuchon acted with
a specific intent to kill Judy Snyder.

Szuchon's evidence of diminished capacity, by contrast,
was weak. Szuchon called three lay witnesses in his
defense, none of whom testified to a diminished capacity on
the date of the murder. The only evidence presented of a
diminished capacity was the statements Szuchon had made
to the police and to Dr. Finken. Szuchon told the police the
day after the murder that he had ingested a "couple lines"
of cocaine and "five to six [Q]uaalude tablets." He told Dr.
Finken that he had taken "six to eight" Quaaludes and
"some cocaine." (Of course, had the Finken evidence been
excluded, the jury would only have had Szuchon's
statements to the police.) There was no evidence that
Szuchon consumed any alcohol or other drugs on the day
of the murder.

In Pennsylvania, a defendant who relies on evidence of
drug consumption must show that he was "overwhelmed by
an intoxicant to the point of losing his rationality, faculties,
or sensibilities so as to negate or lower the specific intent
to kill." Commonwealth v. Edmiston, 634 A.2d 1078, 1085
(Pa. 1993) (citing Commonwealth v. Breakiron, 571 A.2d
1035 (Pa. 1990)). Szuchon's evidence fell far short of that
standard. At best, he showed that he ingested a small
quantity of cocaine and several sedatives, but by no means
could the jury have inferred from that limited evidence that
Szuchon was overwhelmed to the point of losing his
rationality. Moreover, the remainder of the trial evidence
(excluding Dr. Finken) firmly established that Szuchon was
well in control of his faculties. Every witness who had
contact with Szuchon around the time of the murder--
including the rifle and bullet salesmen, DeSanto, Sadowski,

                               23
Pusch, and the arresting officers -- testified that Szuchon
had seemed rational and showed no signs of intoxication or
a drugged condition. Furthermore, the manner in which
Szuchon carried out the murder strongly indicated that he
knew what he was doing.

Thus, while the jury might have found the Finken
evidence compelling, the overwhelming remaining evidence
of Szuchon's specific intent and the paucity of his
diminished-capacity defense convince us that the outcome
of this trial would have been exactly the same without Dr.
Finken's testimony and the Finken Report. Similarly,
Szuchon cannot show prejudice under Strickland v.
Washington, 466 U.S. 668 (1984), to support his claim that
counsel were ineffective in failing to object to its admission.
Accordingly, we will affirm the District Court's denial of
relief on these claims.11

IV. SENTENCING CLAIMS

A. Mills

We turn next to the sentencing phase and address first
the Commonwealth's appeal of the District Court's issuance
of the writ based on Mills v. Maryland, 486 U.S. 367 (1988).
The Supreme Court held in Mills that a death sentence
should be vacated as violative of the Eighth Amendment if
there is a substantial probability that reasonable jurors,
upon receiving the trial judge's instructions and attempting
to complete the verdict form based on those instructions,
may have thought that they could only consider those
mitigating factors which they unanimously found to exist.
_________________________________________________________________

11. Szuchon also claims that Estelle was violated by admission of the
psychiatric evidence at sentencing. We do not reach that claim given our
disposition of this appeal, although we note that we discern no error in
that regard. The Commonwealth used Dr. Finken's testimony and the
Finken Report at sentencing solely in rebuttal to Szuchon's claims of
mitigation based on his alleged mental deficiencies. Admission of the
evidence for that purpose was not inconsistent with Buchanan v.
Kentucky, 483 U.S. 402, 424 (1987) (holding that no Estelle violation
occurs when the state uses a psychiatric report in rebuttal after the
defendant places his mental status in issue).

                               24
486 U.S. at 376. The District Court concluded that the
instructions at Szuchon's sentencing violated this principle.
The Commonwealth argues that the Mills claim is
procedurally defaulted because Szuchon never raised the
claim in state court, his state remedies are now foreclosed,
and he cannot show cause and prejudice or a fundamental
miscarriage of justice. We agree that the claim is defaulted
and barred from review on the merits.12

Preliminarily, Szuchon argues that the procedural-default
defense was waived because the Commonwealth failed to
assert that defense in its answer to the amended petition.
A state ordinarily is required to assert a procedural default
in its answer if it intends to rely on that defense. See
Esslinger v. Davis, 44 F.3d 1515, 1524 n.32 (11th Cir.
1995) ("The state can waive a procedural bar to relief by
explicitly waiving, or by merely failing to assert the bar in
its answer to the habeas petition."); Reese v. Nix, 942 F.2d
1276, 1280 (8th Cir. 1991) ("The district court properly held
that Nix waived his procedural default defense by failing to
affirmatively assert it in his answer to Reese's petition for
habeas relief."); Delap v. Dugger, 890 F.2d 285, 302 n.20
(9th Cir. 1989) ("The state did not raise the issue of
procedural default in its response to Delap's habeas
petition, and thus has waived procedural default."); see also
Trest v. Cain, 522 U.S. 87 (1997) (noting that"procedural
default is normally a defense that the State is obligated to
raise and preserve if it is not to lose the right to assert the
defense thereafter").

On the record here, we see no reason to excuse the
Commonwealth's failure to assert the default in its answer.
We find, however, that the more troubling aspect of this
case is Szuchon's failure to raise his Mills claim, or any sort
of challenge to the jury instructions regarding unanimity in
finding the mitigating circumstances, in any of his
numerous state court proceedings. Thus, while the
Commonwealth may well have waived its procedural-default
_________________________________________________________________

12. The Commonwealth argues in the alternative that the Mills claim is
barred by Teague v. Lane, 489 U.S. 288 (1989), or without merit. Given
our disposition on the procedural default, we do not reach those
arguments.

                               25
defense, the fact remains that Szuchon deprived the state
courts of the opportunity even to examine the Mills issue.
We cannot ignore this fact and the resulting procedural
default. We conclude, therefore, that the District Court
should not have reached the merits of the Mills claim. We
reach this conclusion sua sponte given the substantial
concerns of comity and federalism that are implicated by
Szuchon's decision to bypass state court review altogether.13
_________________________________________________________________

13. A court of appeals can raise a procedural default sua sponte. Smith
v. Horn, 120 F.3d 400, 408 (3d Cir. 1997); see also Windham v. Merkle,
163 F.3d 1092 (9th Cir. 1998); Ortiz v. Dubois , 19 F.3d 708 (1st Cir.
1994); Washington v. James, 996 F.2d 1442 (2d Cir. 1993); Hardiman v.
Reynolds, 971 F.2d 500 (10th Cir. 1992). We retain this discretion
because the doctrine of procedural default, while not a jurisdictional
rule, "is grounded upon concerns of comity between sovereigns and often
upon considerations of judicial efficiency." Hardiman, 971 F.2d at 503
(citations omitted). "Because these concerns substantially implicate
important interests beyond those of the parties, it is not exclusively
within the parties' control to decide whether such a defense should be
raised or waived." Id. In Smith, we explained that our discretion to
address a default should be guided by the factors discussed in Granberry
v. Greer, 481 U.S. 129 (1987), with respect to the sua sponte
consideration of nonexhaustion. 120 F.3d at 408. Thus, we held that the
values of comity, federalism, judicial efficiency, and the "ends of
justice"
must be weighed in determining whether to consider the default. Id. We
noted that it might be inappropriate to raise a default where "it is
evident
that a miscarriage of justice has occurred," id., explaining that a
miscarriage of justice in this context " `should include cases where the
record is well developed and the merits strongly support the petitioner's
claim.' " Id. (quoting Washington v. James, 996 F.2d 1442 (2d Cir. 1993)
(Oakes, J., dissenting)).

Smith was a capital case in which the petitioner claimed that the trial
court issued erroneous jury instructions on the elements of first-degree
murder. Although the petitioner might have waived that claim in state
court, the Commonwealth in Smith did not argue a default at any stage
of the habeas proceeding: "not in the district court, not in its briefing
before this Court, and not at oral argument." 120 F.3d at 407. We
declined to raise the matter sua sponte, noting that, "not only do the
merits support Smith's claim, . . . but the record as it relates to the
merits is as well-developed as it can be," whereas the record as to the
default was "sparse" and would have required"not simply supplemental
briefing but a remand to the district court for supplemental fact
finding."
120 F.3d at 409. Here, the Mills claim is similarly one of erroneous jury
instructions and the record is fully developed, but unlike Smith, the

                               26
Szuchon's blatant default of his Mills claim essentially
compels us to raise the issue sua sponte. The requirement
that a prisoner afford the state courts a chance to correct
an alleged constitutional violation before invoking federal
jurisdiction is central to our federal system. As the
Supreme Court has frequently explained, the exhaustion
requirement " `is principally designed to protect the state
courts' role in the enforcement of federal law[.]' " Duncan v.
Walker, 121 S. Ct. 2120, 2128 (2001) (quoting Rose v.
Lundy, 455 U.S. 509, 518 (1982)). "Comity thus dictates
that when a prisoner alleges that his continued
confinement for a state court conviction violates federal law,
the state courts should have the first opportunity to review
this claim and provide any necessary relief." O'Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999). Moreover,"[t]he
exhaustion rule promotes comity in that it would be
unseemly in our dual system of government for a federal
district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional
violation." Duncan, 121 S. Ct. at 2128 (quotation marks
and citations omitted).

That "unseemly" result, however, is precisely what would
happen here, as we are asked to enforce the District Court's
decision to overturn Szuchon's sentence even though
Szuchon never afforded the state courts any chance to
correct the alleged error. Significantly, we find no indication
_________________________________________________________________

record as to the default is also fully developed, and the parties briefed
the default in both the District Court and in this Court. Our
consideration of the default therefore would not require supplemental
briefing or a remand. Moreover, we observed in Smith that "when the
state has never raised an issue in either the district court or this Court
we should be even less inclined to raise it sua sponte than when the
state either has raised the issue here only belatedly or has raised it in
the district court but has not pursued that line of attack in the court of
appeals." 120 F.3d at 409. The Commonwealth never mentioned a
default in Smith, but here it asserted the defense in its Objections to
the
Report and Recommendation and it has vigorously pursued it on appeal.
Thus, aside from failing to assert the defense in its answer, the
Commonwealth has done all it could do to raise the default. For these
reasons, and for the reasons set forth in the text, we will address
Szuchon's procedural default of the Mills claim.

                               27
that Szuchon made any effort to present a Mills claim
during his numerous state court proceedings, and it
appears that Szuchon merely decided to skip the process of
state court review, perhaps in the belief that he might
obtain a more favorable result in federal court. We simply
cannot overlook this attempt to nullify the state courts' vital
role in preserving the constitutional rights of state
prisoners. Cf. Windham, 163 F.3d at 1101 (reaching default
sua sponte because "[i]t would be violative of comity and
`our federalism' for this court to hold that the State of
California violated the Equal Protection Clause by
purposefully discriminating against women because of their
gender when that issue was never presented to the trial
court").

We reject Szuchon's suggestion that he exhausted a Mills
claim. Szuchon argues that he presented the claim on
direct appeal, but the record reflects that he merely
challenged the trial court's alleged error in failing to
elaborate on the meaning of the aggravating and mitigating
circumstances, and in failing to read the language of every
circumstance set forth in the statute. App. 431-33, 458-60.
These claims, which were raised as matters of state law, did
not put the state courts on notice that Szuchon wished to
raise an Eighth Amendment challenge to the instructions
regarding unanimity in the jury's finding of mitigating
circumstances. Indeed, nowhere in his state appellate brief
did Szuchon even mention, much less challenge, the trial
court's use of the word "unanimous" in the instructions.
Szuchon also contends that he exhausted a Mills claim in
the first post-conviction proceeding, but the claim he
presented there, see App. 564, was merely an ineffective-
assistance-of-counsel version of the claim from the direct
appeal. Moreover, the claim was raised in a pro se petition
that was superceded by a counseled petition, and counsel
did not raise a Mills argument.

Significantly, Szuchon offers no argument that he even
attempted to raise a Mills claim in his second or third post-
conviction proceedings, which is most troubling given that
both of those proceedings were commenced long after Mills
was decided. Indeed, the third proceeding was commenced
in 1996 after this habeas proceeding was held in abeyance

                               28
at Szuchon's request so that he could pursue state
remedies on three claims that he believed were
unexhausted. See note 4, supra. Szuchon had raised a Mills
claim in his habeas petition in 1994 and thus he knew of
the claim at that time, see App. 176-77, yet he elected not
to present the claim to the state courts even though he had
as much reason to believe the Mills claim was unexhausted
as he had for his other claims. On this record, the failure
to exhaust the Mills claim is difficult to fathom.

It would now be futile for Szuchon to return to state
court to exhaust the Mills claim, and, further, review on the
merits in federal court of this defaulted claim is barred
because Szuchon cannot show cause or a fundamental
miscarriage of justice to overcome the default. 14
_________________________________________________________________

14. Exhaustion will be excused as "futile" if "the state court would
refuse
on procedural grounds to hear the merits of the claims." Doctor v.
Walters, 96 F.3d 675, 681 (3d Cir. 1996). State law must "clearly
foreclose state court review of [the] unexhausted claims." Toulson v.
Beyer, 987 F.2d 984, 987 (3d Cir. 1993). The only means of review for
Szuchon's Mills claim would be through another PCRA petition, see
Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999), but any such
petition would be untimely and barred from consideration on the merits
under the PCRA's one-year limitations period. See 42 Pa. Cons. Stat.
S 9545(b)(1); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (holding
that untimely petition raising Mills claim was properly dismissed for
want of jurisdiction); see also Keller v. Larkins, 251 F.3d 408, 415 (3d
Cir. 2001) ("Keller is barred from seeking further relief in state court
because the statute of limitations for filing another PCRA petition has
expired."). None of the three statutory exceptions to the PCRA time-bar
even arguably apply to Szuchon's Mills claim. See 42 Pa. Cons. Stat.
S 9545(b)(1)(i)-(iii).

Szuchon relies on Commonwealth v. Cross, 726 A.2d 333 (Pa. 1999),
and argues that state remedies are not clearly foreclosed. While the
Pennsylvania Supreme Court did reach the merits in Cross of an
otherwise seemingly time-barred Mills claim that was raised for the first
time on the PCRA appeal, id. at 336-38, Szuchon's reliance on Cross is
misplaced. The Pennsylvania Supreme Court has decided a line of cases
since Cross, starting with Commonwealth v. Banks, 726 A.2d 374, 376
(Pa. 1999), in which it has held that the one-year period for filing under
the PCRA is jurisdictional, and the only cognizable exceptions are those
enumerated in the statute. We noted this development in Fahy v. Horn,
240 F.3d 239 (3d Cir. 2001), where we observed that"the Pennsylvania

                               29
Consequently, we will not affirm the District Court's ruling
that a new sentencing hearing is required based on Mills.

B. Witherspoon

Szuchon raises several sentencing claims on cross-
appeal, but we need go no further than his claims under
Witherspoon v. Illinois, 391 U.S. 510 (1968). 15 Szuchon
_________________________________________________________________

Supreme Court did not clarify that the state PCRA statute was
jurisdictional and not waivable until 1999 in [ Banks]." Id. at 244; see
also Lines v. Larkins, 208 F.3d 153, 164 n.17 (3d Cir. 2000) ("Prior to
Banks there was some doubt as to the proper scope and application of
the one year limitations period under the amended PCRA."). Given these
more recent developments, we do not read Cross to suggest that the
state courts would reach the merits of Szuchon's Mills claim in an
untimely filed PCRA petition. In fact, Szuchon has cited no case in which
a court has relied on Cross to address the merits of a Mills claim despite
the untimeliness of the petition. Cf. Pursell , supra. Thus, Cross
notwithstanding, Szuchon's state remedies are clearly foreclosed.

Exhaustion, therefore, can be excused as futile, but the Mills claim is
defaulted because Szuchon failed to exhaust it despite ample
opportunities to do so. See Coleman v. Thompson , 501 U.S. 722, 735 n.1
(1991). A federal court can reach the merits of a defaulted claim only if
the petitioner shows cause and prejudice or a fundamental miscarriage
of justice. Lines, 208 F.3d at 166. Szuchon has offered no showing of
cause or any adequate explanation for his failure to exhaust. To show a
miscarriage of justice on a capital sentencing claim, the petitioner must
demonstrate "actual innocence of the death penalty," which requires a
showing "by clear and convincing evidence that, but for constitutional
error, no reasonable juror would have found the petitioner eligible for
the
death penalty under the applicable state law." Sawyer v. Whitley, 505
U.S. 333, 336 (1992). This standard focuses on actual innocence of the
minimum prerequisites that rendered the petitioner eligible for the death
penalty (which in Pennsylvania are a conviction for first-degree murder
and the finding of at least one aggravating circumstance, see 42 Pa.
Cons. Stat. S 9711(c)(iv)), "and not on additional mitigating evidence
that
was prevented from being introduced as a result of a claimed
constitutional error." Sawyer, 505 U.S. at 347. A Mills violation would
have affected the jury only in its consideration of the mitigating
evidence.
Furthermore, Szuchon has made no claim of innocence on the
underlying offense. Thus, Szuchon cannot show that a failure to address
the Mills claim would result in a fundamental miscarriage of justice.

15. While ordinarily an appellee need not file a cross-appeal in order to
rely upon any matter appearing in the record in support of the judgment
30
contends that the trial court improperly allowed the
exclusion for cause of six prospective jurors who voiced
opposition to the death penalty but who never expressed
that their views would impair their ability to serve. The
Commonwealth contends that the Witherspoon claims are
defaulted, and thus we must address that argument first.

1. Procedural Default

Szuchon presented the Witherspoon claims on direct
appeal, but the Commonwealth contends that the
Pennsylvania Supreme Court refused to reach the merits
because Szuchon's counsel did not object to the exclusions
at voir dire and did not raise the issue in post-verdict
motions. Because the Pennsylvania Supreme Court rejected
the claims on state procedural grounds, the Commonwealth
contends that the claims are defaulted. Szuchon counters
that the Pennsylvania Supreme Court reached the merits in
accordance with its "relaxed waiver rule" in capital cases. In
the alternative, he argues that the state procedural rules
_________________________________________________________________

below, see Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982), this rule has a
somewhat uncertain application when a habeas petitioner seeks
affirmance on the basis of a constitutional claim post-AEDPA. Here,
Szuchon has raised the Witherspoon issue by way of a cross-appeal,
giving rise to the additional question as to whether a certificate of
appealability is necessary. There is pre AEDPA caselaw to the effect that
a certificate of probable cause was necessary in such a circumstance.
See Roman v. Abrams, 790 F.2d 244, 245 (2d Cir. 1986) (per curiam).
Post-AEDPA caselaw and commentary similarly points in that direction.
See Scott v. Mitchell, 209 F.3d 854, 862-63 (6th Cir. 2000) (petitioner in
capital case granted certificate of appealability to raise trial and
sentencing phase claims on cross-appeal from issuance of the writ on a
Mills claim); Fretwell v. Norris, 133 F.3d 621, 623 (8th Cir. 1998)
(dismissing cross-appeal where certificate of appealability denied);
Williams v. Cain, 125 F.3d 269, 273 (5th Cir. 1997) (petitioner granted
certificate of appealability on trial and sentencing phase claims on
cross-
appeal from grant of writ on capital sentencing claim); see also 16 Fed.
Proc., L. Ed. S 41:528 (1999). The parties have not raised or briefed
these
issues. We need not, and do not, decide these issues, however, but will
treat the cross-appeal as a request for certificate of appealability, and
grant it, in view of the clear constitutional implications of the
Witherspoon challenge.

                               31
were not consistently applied at the time of his 1981 trial,
and thus there can be no procedural default for purposes
of federal habeas review.

The Commonwealth is correct that the state court
rejected the Witherspoon claims on procedural grounds. The
Pennsylvania Supreme Court expressly held that, as to the
six veniremen at issue, "the issue of whether[those]
prospective jurors were improperly excluded under
Witherspoon has been waived and cannot now be addressed
for the first time on appeal." 484 A.2d at 1379. The court
cited several of its prior (noncapital) cases and noted that
it had "consistently found errors of constitutional
dimension to have been waived." Id. It thus declined to
reach the merits due to counsels' failure to raise the issue
at the trial level.

A habeas court "will not review a question of federal law
decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal
question and adequate to support the judgment." Coleman,
501 U.S. at 729. The Pennsylvania Supreme Court's
procedural rules were independent of the Witherspoon
claims, and thus we turn to whether the rules were
"adequate to support the judgment." A procedural rule is
adequate only if it is firmly established, readily
ascertainable, and regularly followed. Ford v. Georgia, 498
U.S. 411, 423-24 (1991); Harris v. Reed, 489 U.S. 255, 262
(1989). In Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996), we
explained that a rule is adequate only under the following
conditions: "(1) the state procedural rule speaks in
unmistakable terms; (2) all appellate courts refused to
review the petitioner's claims on the merits; and (3) the
state courts' refusal in this instance is consistent with
other decisions." Id. at 683-684; see also Dugger v. Adams,
489 U.S. 401, 410 n.6 (1989) (explaining that a state must
demonstrate that in the "vast majority of cases" the rule is
applied in a "consistent and regular" manner); Hathorn v.
Lovorn, 457 U.S. 255, 263 (1982) (explaining that a state
rule should be applied "evenhandedly to all similar claims").
"[T]hese conditions must have existed at the time of the
state court procedural default." Cabrera v. Barbo, 175 F.3d
307, 313 (3d Cir. 1999). "The reason for these requirements

                               32
is that a petitioner should be on notice of how to present
his claims in the state courts if his failure to present them
is to bar him from advancing them in a federal court." Id.

Szuchon allegedly defaulted the Witherspoon claims at
trial in 1981. At that time, and indeed to this day, the
Pennsylvania Supreme Court has employed a doctrine of
"relaxed waiver" whereby it will reach the merits of a claim
on a direct appeal in a capital case even if the claim would
otherwise be waived by the failure to raise it at the trial
level. See, e.g., Commonwealth v. Rivera, 773 A.2d 131, 139
n.7 (Pa. 2001) ("Technically, this claim is waived because
counsel failed to make a timely objection to the jury
instruction. See Pa.R.Crim.P. 1119(b). However, because
this is a capital case on direct appeal, we will nonetheless
review the merits of this claim pursuant to the relaxed
waiver rule.") (citations omitted). As the court explained in
Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998),
"[r]elaxed waiver, as an operating principle, was created to
prevent this court from being instrumental in an
unconstitutional execution. Due to the unique severity and
finality of the death penalty, this court has relaxed its
waiver rules as to any claim raised on direct appeal for
which the record permits review." Id. at 700 (citing
Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978);
Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982)).

McKenna, which was decided before Szuchon's trial, was
the seminal case on relaxed waiver. There, the Pennsylvania
Supreme Court noted its longstanding general rule that a
claim is waived on appeal when not preserved, but the
court decided to "make a particular limited exception to the
general rule requiring that an issue first be considered in
the court of common pleas," noting "the public interest in
assuring that the death sentence is imposed only in a
constitutionally permitted manner. . . ." 383 A.2d at 180
n.11. The court observed that, "because imposition of the
death penalty is irrevocable in its finality, it is imperative
that the standards by which that sentence is fixed be
constitutionally beyond reproach." Id. at 181. The court
explained that it had "a duty to transcend procedural rules
which are not, in spirit, applicable, to the end that the
public interest may be vindicated." Applying these relaxed

                               33
waiver principles, the court vacated a death sentence on
the ground that the statute under which the defendant was
sentenced was unconstitutional, even though the defendant
had failed to preserve that issue. Id. at 179; see also
Zettlemoyer, 454 A.2d at 942 n.3 (reaching the merits of
claims that otherwise would have been waived and
reaffirming the principle that " `imposition of the death
penalty is irrevocable in its finality' and warrants, therefore,
the relaxation of our waiver rules") (quoting McKenna, 383
A.2d at 181).

Here, the holding that Szuchon waived his Witherspoon
claims by failing to raise them in the trial court is difficult
to square with the Pennsylvania Supreme Court's relaxed
waiver rule.16 Indeed, the state court's opinion on Szuchon's
direct appeal is notable for its failure to offer any
discussion of relaxed waiver or even to cite McKenna, which
rather firmly established that a claim of constitutional error
in a capital case would not be waived by a failure to
preserve it. Moreover, not one of the cases that the
Pennsylvania Supreme Court cited to support the waiver
was a capital case, see Szuchon, 484 A.2d at 1379-80, even
though the court had held in McKenna that it would relax
its waiver rules for capital defendants. Szuchon , in fact,
appears to be the first reported decision in which the
Pennsylvania Supreme Court held that a Witherspoon claim
was waived by counsel's failure to preserve it, and
subsequent decisions have relied on Szuchon as the case
that established that precedent. E.g., Commonwealth v.
Lewis, 567 A.2d 1376, 1381 (Pa. 1989) ("Although waiver of
any claim in a capital case appears to be contradictory to
the relaxed waiver rules afforded these appellants through
Zettlemoyer, the case law of this Commonwealth is clear.
This Court has repeatedly held that Witherspoon claims are
waivable.") (citing Commonwealth v. Peterkin , 513 A.2d 373
(Pa. 1986), and Szuchon). But such a precedent setting use
of a procedural bar indicates that the bar was not firmly
established, readily ascertainable, and regularly followed at
_________________________________________________________________

16. Of course, the Mills claim, in contrast, was not waived at trial and
later presented to the state supreme court; it was simply never raised at
any level in the state courts. The relaxed waiver rule, therefore, has no
application to the Mills claim.

                               34
the time of the purported default. See Reynolds v.
Ellingsworth, 843 F.2d 712, 722 (3d Cir. 1988); see also
Granviel v. Estelle, 655 F.2d 673, 679 (5th Cir. 1981) ("We
cannot enforce against Granviel a contemporaneous
[Witherspoon] objection rule that apparently did not even
exist at the time of his trial.").

In short, the holding of a waiver on Szuchon's direct
appeal was not "adequate to support the judgment" for
purposes of a procedural default under federal habeas law.
Accordingly, we will address the merits of the Witherspoon
claims.

2. Exclusion of Prospective Jurors

The Court held in Witherspoon that "a sentence of death
cannot be carried out if the jury that imposed or
recommended it was chosen by excluding veniremen for
cause simply because they voiced general objections to the
death penalty or expressed conscientious or religious
scruples against its infliction. No defendant can
constitutionally be put to death at the hands of a tribunal
so selected." 391 U.S. at 522-23. Witherspoon 's holding is
grounded in the right to a fair and impartial jury
guaranteed to state criminal defendants by the Sixth and
Fourteenth Amendments, and thus veniremen can be
excluded based on their views on capital punishment only
if they would be biased and lack impartiality in hearing the
case. In Wainwright v. Witt, 469 U.S. 412 (1985), the Court
held that "the proper standard for determining when a
prospective juror may be excluded for cause because of his
or her views on capital punishment . . . is whether the
juror's views would `prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.' " Id. at 424 (quoting Adams v.
Texas, 448 U.S. 38, 45 (1980)).17 The Court explained that:
_________________________________________________________________

17. In Adams, the Supreme Court had applied the same standard and
held that it violated Witherspoon to "exclude jurors who stated that they
would be `affected' by the possibility of the death penalty, but who
apparently meant only that the potentially lethal consequences of their
decision would invest their deliberations with greater seriousness and
gravity or would involve them emotionally," 448 U.S. at 49, and that it
also violated Witherspoon to exclude jurors"only because they were
unable positively to state whether or not their deliberations would in any
way be `affected.' " Id. at 50.

                                35
       this standard . . . does not require that a juror's bias
       be proved with "unmistakable clarity" . . . because
       determinations of juror bias cannot be reduced to
       question-and-answer sessions which obtain results in
       the manner of a catechism. What common sense
       should have realized experience has proved: many
       veniremen simply cannot be asked enough questions to
       reach the point where their bias has been made
       "unmistakably clear"; these veniremen may not know
       how they will react when faced with imposing the death
       sentence, or may be unable to articulate, or may wish
       to hide their true feelings. Despite this lack of clarity in
       the printed record, however, there will be situations
       where the trial judge is left with the definite impression
       that a prospective juror would be unable to faithfully
       and impartially apply the law.

Id. at 424-26 (footnote omitted).

The Court explained in Witt that "[a]s with any other trial
situation where an adversary wishes to exclude a juror
because of bias, . . . it is the adversary seeking exclusion
who must demonstrate, through questioning, that the
potential juror lacks impartiality." 469 U.S. at 423. Thus,
when the state wishes to exclude a prospective juror for
cause because of his or her views on the death penalty, it
must question that juror to make a record of the bias. See
Gray v. Mississippi, 481 U.S. 648, 652 n.3 (1987) ("A
motion to excuse a venire member for cause of course must
be supported by specified causes or reasons that
demonstrate that, as a matter of law, the venire member is
not qualified to serve.") (citation omitted).

After the state offers its challenge for cause,"[i]t is then
the trial judge's duty to determine whether the challenge is
proper." Witt, 469 U.S. at 423. Thus, before it can sustain
the exclusion, the judge must make a factual determination
that the prospective juror would be biased. On federal
habeas review, that determination of bias is entitled to the
presumption of correctness. Id. at 428. As the Court
emphasized in Witt, a trial judge's "predominant function in
determining juror bias involves credibility findings whose
basis cannot be easily discerned from an appellate record."
Id. at 429; see also Deputy v. Taylor, 19 F.3d 1485, 1499

                               36
(3d Cir. 1994) ("The trial court is in the best position to
observe the demeanor of the prospective jurors.").

The following colloquy was at issue in Witt:

       [Q. Prosecutor:] Now, let me ask you a question,
       ma'am. Do you have any religious beliefs or personal
       beliefs against the death penalty?

       [A:] I am afraid personally but not--

       [Q]: Speak up, please.

       [A]: I am afraid of being a little personal, but definitely
       not religious.

       [Q]: Now, would that interfere with you sitting as a
       juror in this case?

       [A]: I am afraid it would.

       [Q]: You are afraid it would?

       [A]: Yes, Sir.

       [Q]: Would it interfere with judging the guilt or
       innocence of the Defendant in this case?

       [A]: I think so.

       [Q]: You think it would.

       [A]: I think it would.

       [Q]: Your honor, I would move for cause at this point.

       [COURT:] All right. Step down.

469 U.S. at 415-16. Based on this exchange, the Supreme
Court held that the judge's finding of bias, although not
free of ambiguity, was fairly supported and therefore
presumptively correct. The Court explained that the judge
was not required "to announce for the record that[the
prospective juror] was biased, or his reasoning," id. at 430,
and added that, "[i]n this regard it is noteworthy that in
this case the court was given no reason to think that
elaboration was necessary; defense counsel did not see fit
to object to [the] recusal, or attempt rehabilitation." Id. at
430-31. The Court noted that counsel's failure to speak was
a circumstance that it would consider when assessing

                                  37
respondent's belated claims that the situation was"so rife
with ambiguity . . . as to constitute constitutional error." Id.
at 431 n.11.

Under Witt, therefore, the proper inquiry on pre-AEDPA
habeas review of a Witherspoon claim is whether there is
fair support in the record for the judge's finding that the
prospective juror's views on the death penalty would have
prevented or substantially impaired the performance of his
or her duties as a juror in accordance with the instructions
and oath. We must factor the decision of Szuchon's counsel
to state "no objection" to the exclusions into our
assessment of the transcript.18 As noted, Szuchon takes
issue with the exclusion of six prospective jurors, but we
conclude that there is no need to address all six, as the
improper exclusion of even one veniremen in violation of
Witherspoon warrants relief. See Gray, 481 U.S. at 657-68
(holding that erroneous exclusion of one potential juror
based on her views on the death penalty was reversible
constitutional error); see also United States v. Chanthadara,
230 F.3d 1237, 1268 (10th Cir. 2000) ("Because the
erroneous exclusion of even one potential juror mandates
reversal of a death sentence, our analysis takes us no
further than potential juror Joy Phillips."); Fuller v.
Johnson, 114 F.3d 491, 500 (5th Cir. 1997) ("Where the
court finds that even one juror was improperly excluded,
the defendant is entitled to a new sentencing, because the
right to an impartial adjudication is `so basic to a fair trial
that [its] infraction can never be treated as harmless
error.' ") (quoting Gray, 481 U.S. at 668). We will focus,
therefore, solely on the exclusion of Floyd Rexford. The
relevant portion of Rexford's voir dire is as follows:

       [Prosecutor]: If the evidence were to establish, sir, a
       case of first degree murder, in other words, the type of
       case that would show that Mr. Szuchon shot and killed
       that woman intentionally, that he did it with malice
       and that he did it with premeditation and those are the
_________________________________________________________________

18. Szuchon also raises a claim that counsel were ineffective in failing
to
object to each prospective juror's exclusion or to attempt rehabilitation.
Because we find a violation of Witherspoon per se, we need not reach the
ineffectiveness claim.

                               38
       elements of first degree murder, would you have any
       conscientious scruple or any hesitation to find him
       guilty of first degree murder?

       [A]: I do not believe in capital punishment.

       [Q]: You do not believe in capital punishment?

       [A]: No.

       [Q]: I challenge for cause, your Honor.

       [Defense Counsel]: No objection.

       [Prosecutor]: Thank you, Mr. Rexford.

       [Court]: Thank you Mr. Rexford . . . .

App. 2116.

This limited questioning provided no evidence that
Rexford's lack of belief in capital punishment would have
prevented or substantially impaired his ability to apply the
law. As the Court emphasized in Adams v. Texas , "it is
clear beyond peradventure that Witherspoon is not a
ground for challenging any prospective juror. It is rather a
limitation on the State's power to exclude: if prospective
jurors are barred from jury service because of their views
about capital punishment on `any broader basis' than
inability to follow the law or abide by their oaths, the death
sentence cannot be carried out." 448 U.S. at 47-48.
Rexford's mere lack of a belief in capital punishment was a
"broader basis" for exclusion than inability to follow the
law. Indeed, "those who firmly believe that the death
penalty is unjust may nevertheless serve as jurors in
capital cases so long as they state clearly that they are
willing to temporarily set aside their own beliefs in
deference to the rule of law." Lockhart v. McCree, 476 U.S.
162, 176 (1986). Neither the Commonwealth nor the trial
court, however, questioned Rexford about his ability to set
aside his beliefs or otherwise perform his duty as a juror.
As a result, there was no evidence or even a suggestion that
Rexford would act in a biased fashion due to his lack of
belief in capital punishment, and the trial court, therefore,
failed in its duty to determine that there was a proper basis
for the exclusion. Cf. Gall v. Parker, 231 F.3d 265, 330-32
(6th Cir. 2001) (holding that exclusion violated Witherspoon

                               39
because "[n]otwithstanding the deference owed to the trial
judge, we find that the factual record does not fairly
support [the prospective juror's] exclusion under the
standards of Adams and Witt";"[the prospective juror] not
once stated that his beliefs would deter him from serving as
an impartial juror"). Thus, while we begin with the
presumption that the trial court's determination of bias is
correct, that presumption cannot adhere in the absence of
record support for the exclusions.

Our precedents are not to the contrary. In Lesko v.
Lehman, 925 F.2d 1527 (3d Cir. 1991), for example, the
prospective juror "initially stated to the prosecutor that she
would be willing to vote for the death penalty in a proper
case," id. at 1548, but "provided an ambiguous response to
defense counsel's query about whether `irrespective of the
evidence' she would `vote automatically for the death
penalty' for a defendant convicted of murdering a police
officer." Id. The judge then queried the prospective juror,
and she "responded affirmatively to the court's inquiry
about whether `under all circumstances' and `irrespective of
[the] evidence' her opposition to capital punishment would
prevent her from participating in a decision to impose the
death penalty." Id. Under those circumstances, we held that
the judge did not err in excluding the prospective juror
because the "statements on voir dire establish[ed] a
likelihood that her opposition to capital punishment would
have substantially impaired her ability to comply with the
trial court's sentencing instructions." Id. Here, in contrast,
no reasonable inference can be drawn that Rexford's lack of
belief in capital punishment would have prevented or
impaired his ability to follow the court's sentencing
instructions. Even affording the trial court the deference it
is owed in its assessment of Rexford's credibility and
demeanor, and even accepting that juror bias need not be
proved with "unmistakable clarity," the determination of
bias in this case is unsupported.

The District Court concluded that the six exclusions
(including Rexford's) were proper under Witt because "in
each instance, the prospective juror was unable to look
past the possible imposition of the death penalty to answer
the specific question posed and each of the prospective

                               40
jurors expressed unwillingness to sentence this defendant
to die for the crime of first degree murder." We find no
support in the record for this conclusion. The question
posed did not probe willingness to vote in a certain way,
but, rather, sought out any scruples or hesitation. Rexford
apparently interpreted the question as seeking his views
and, in responsive fashion, he noted his lack of belief.19 At
that point, Rexford's views on the death penalty became the
_________________________________________________________________

19. The five other veniremen at issue -- Chalupczynski, Buczek, Howard,
Dobruk, and Settino -- likewise seemed to believe the question sought
their views on the death penalty. Katherine Buczek's voir dire, for
example, was as follows:

         [Prosecutor]: If the evidence were to establish a case of first
degree
       murder, . . . if you found that and the evidence justified that
       finding, would you have any conscientious scruple, any moral belief
       or any hesitation against finding him guilty of first degree
murder?

         [A]: I have to ask a question.

         [Q]: Go ahead.

         [A]: Does that involve capital punishment?

         [Q]: Yes, that is my next question.

         [A]: Because I so indicated on the questionnaire that I received
         concerning jury duty that I was opposed to capital punishment.

         [Q]: Okay. I believe that I knew that also, and that is where I was
         headed for with that question. You are opposed to capital
         punishment, ma'am?

         [A]: Yes, and I have been actively opposed to it in circulating
         petitions.

         [Q]: Okay.

         [A]: And things of that nature.

         [Q]: In connection with the NAACP Legal Defense Fund?

         [A]: Right.

         [Q]: I challenge for cause, your Honor.

         [Defense counsel]: No objection.
       [Court]: Thank you, ma'am.

App. 1892-93 (emphasis added).

                                 41
issue, and the prosecutor asked, "You do not believe in the
death penalty?" Rexford simply replied "no," and the
prosecutor moved to exclude him. The prosecutor failed,
however, to meet his burden under Witt of asking even a
limited number of follow-up questions to show that
Rexford's views would render him biased. Thus, the only
supportable inference on this record is that Rexford was
excluded because he voiced opposition to the death penalty.
Rexford also did not "express unwillingness" to impose the
death penalty. He merely stated that he did not"believe" in
capital punishment, which is by no means the equivalent of
being unwilling to impose it. Again, even those firmly
opposed to the death penalty can serve as jurors if they are
"willing to temporarily set aside their own beliefs in
deference to the rule of law." Lockhart, 476 U.S. at 176.

In short, Rexford's exclusion violated Szuchon's rights
under Witherspoon. It is settled that a Witherspoon violation
is not subject to harmless error analysis. Gray , 481 U.S. at
668; Davis v. Georgia, 429 U.S. 122, 123 (1976). It is of no
moment, therefore, that the Commonwealth had seven
unused peremptory challenges with which it could have
struck the six prospective jurors. See Gray, 481 U.S. at 664
(rejecting the argument that "a Witherspoon violation
constitutes harmless error when the prosecutor has an
unexercised peremptory challenge that he states he would
have used to excuse the juror"). The relief that must be
afforded is a new sentencing proceeding. Witherspoon, 391
U.S. at 523 n.21; see Fuller, 114 F.3d at 500. Accordingly,
we will affirm, on alternative grounds, the District Court's
decision to grant the writ.

V. CONCLUSION

To summarize, we will DENY a certificate of appealability
on all claims of trial error other than the Estelle claims; we
will AFFIRM the District Court's denial of relief on the
Estelle claims; the Mills claim is procedurally defaulted, but
we will AFFIRM, on the basis of Witherspoon, the District
Court's issuance of the writ conditioned upon the
Commonwealth's right to conduct a new sentencing

                               42
proceeding within 120 days or impose a sentence of life
imprisonment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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