                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

Whitney v. Horn
Precedential or Non-Precedential:

Docket 0-9003




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Filed February 5, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-9003

RAYMOND WHITNEY

v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; JAMES S. PRICE,
SUPERINTENDENT OF THE STATE CORRECTIONAL
INSTITUTION AT GREENE; AND JOSEPH
MAZURKIEWICZ, SUPERINTENDANT OF THE STATE
CORRECTIONAL INSTITUTION AT ROCKVIEW,

APPELLANTS

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. 99-CV-1993
District Judge: Honorable Harvey Bartle, III

Argued: April 24, 2001

Before: McKEE, BARRY and AMBRO, Circuit Judges

(Opinion Filed: February 5, 2002)

       Counsel for the Appellants

       Thomas W. Dolgenos (Argued)
       Marilyn F. Murray
       Ronald Eisenberg
       Arnold H. Gordon
       Lynne Abraham
       1421 Arch Street
       Philadelphia, PA 19102
       Counsel for the Appellee

       Billy H. Nolas (Argued)
       Christina Swarns
       David Wycoff
       Defender Association of Philadelphia
       The Curtis Center -- Suite 545 West
       Independence Square West
       Philadelphia, PA 19106

OPINION OF THE COURT

McKEE, Circuit Judge.

A jury convicted Raymond Whitney of first degree murder
in state court, and sentenced him to death. We are now
asked to review the district court's grant of a writ of habeas
corpus under 28 U.S.C. S 2254. The district court
concluded that Whitney was entitled to habeas relief
because the trial judge erred in instructing the jury on the
defense of voluntary intoxication under Pennsylvania law.
For the reasons that follow, we will reverse and remand for
further proceedings consistent with this opinion.

I. Factual Background

At approximately 4:00 a.m. on October 10, 1981,
Whitney climbed through a second story window of the
apartment of Juliana Minor armed with a knife. Minor was
in bed when Whitney encountered her inside the
apartment. Whitney asked her if she recognized him, and
threatened to kill her if she did not keep quiet. She told
Whitney that she did not recognize him even though she
actually did recognize him from the neighborhood. When
Minor claimed she had no money, Whitney responded by
taking some valuables from her jewelry box and helping
himself to a can of beer from her refrigerator. Before
leaving, he cut the phone wire, unscrewed the mouthpiece
on the handset of her telephone, and removed the speaker
from inside the phone, thus rendering the phone
inoperable. Whitney then announced that he was in the

                                  2
wrong apartment and left by climbing through a window
back onto the ledge.

Moments later, he entered a neighboring second-floor
apartment where a recently married couple, Mahin Murtaza
and Jehad Taha, were sleeping. Upon being awakened by
noise in their living room, Taha went to investigate. A few
minutes later Murtaza heard someone strike Taha, and she
called the police. While she was attempting to place the
call, Taha reappeared in the bedroom with wounds on his
chest and face. Whitney was standing behind him holding
a knife to Taha's neck. Murtaza immediately hung up the
phone although she had not been able to complete the call
and summon police. Whitney angrily asked Murtaza why
she was on the phone, and threw Taha on the bed.

As this was occurring, the phone rang. Whitney directed
Murtaza to answer it and say that everything was fine. After
she complied, Whitney grabbed the phone and hung up.
The call had been a "callback" by a police operator who
phoned the apartment because of the abrupt manner in
which Murtaza's call ended.

Whitney then threatened the couple, demanded money
and jewelry, and ripped pierced earrings from Murtaza's
ears. He also threatened to rape Murtaza, and proceeded to
tear off her brassiere. Taha gave Whitney jewelry; however,
Whitney demanded more and ordered the couple to go to
the living room where Murtaza's purse was located. When
Taha refused Whitney's demand and instead went toward
the bathroom, Whitney stabbed him again. Whitney then
forced Taha into the living room where Murtaza emptied the
contents of her purse onto the floor. However, Whitney was
still not satisfied and expressed disappointment over the
amount of money Murtaza had in her purse. After drinking
some water from the refrigerator, Whitney hugged Murtaza,
touched her on the breast, reiterated that he wanted to
have intercourse with her, and then threw her to the floor.
When Taha protested, Whitney stabbed him yet again, and
told Murtaza, "[a]fter I kill him, then I am going to fuck
you." Whitney then unfastened his pants and pulled out his
penis. Taha tried to stop Whitney, and a scuffle ensued
during which Whitney repeatedly told Taha, "I'm going to
kill you." However, the scuffle provided Murtaza with an

                               3
opportunity to run for help, and she ran from the
apartment into the street. Once outside, she encountered
two police officers who ran back to her apartment with her.
They entered in time to see Whitney crouched over Taha,
pulling a knife out of Taha's chest. They immediately
arrested Whitney.1 However, Taha had already sustained
twenty-four stab wounds, and he died soon after being
taken to a hospital.

In a post-arrest statement, Whitney contended that
earlier that evening he left a bar and ran into an
acquaintance. He admitted that he had thereafter entered a
second-floor apartment in the 3400 block of Powelton
Avenue, and that he had struggled with and assaulted, a
man. He told police that he "wasn't drunk then.[He] only
had a little to drink," and did not recall any stabbing.

Defense counsel moved to suppress Whitney's statement,
Minor's identification, and physical evidence that had been
seized from Whitney following his arrest. The motion was
denied, and Whitney was tried before a jury on charges that
included first degree murder and burglary.

Ms. Minor and Ms. Murtaza testified for the
Commonwealth at Whitney's trial. Minor testified that
Whitney "walked funny," that he was "woozy," and that his
speech was "funny" during the incident. Her testimony
therefore provided some evidence that he had been
intoxicated when he stabbed his victim. In addition, on
cross-examination, the officer who transported Whitney to
police headquarters testified that Whitney's breath smelled
of alcohol.

The Commonwealth's case-in-chief included six witnesses
who testified that they had not observed evidence of
Whitney's intoxication from 4:00 a.m. on. Although Whitney
did not testify, he called three defense witnesses who
testified that he had been drinking at a party into the early
_________________________________________________________________

1. In a search pursuant to the arrest, police recovered several items
Whitney had stolen from both apartments. Police also seized Whitney's
blood-stained clothing and a knife. Subsequent laboratory analysis
confirmed the presence of blood on both the knife and Whitney's
clothing. That blood was consistent with Taha's blood type.

                                4
morning hours of October 10th. Whitney also introduced
evidence of three hospitalizations from alcohol overdoses
between 1973 and 1976. In rebuttal, the Commonwealth
produced additional evidence of Whitney's sobriety on the
night of the murder.

The jury convicted Whitney of first degree murder, two
counts of robbery, two counts of burglary, attempted rape,
indecent assault, terroristic threats, and two counts of
possession of an instrument of crime. Whitney called one
witness during the ensuing penalty phase, and the jury
thereafter imposed the death sentence. After post-verdict
motions were denied, the trial judge formally imposed
sentence.

II. Procedural Background

Whitney was represented by trial counsel on direct
appeal to the Pennsylvania Supreme Court.2 In that appeal
he raised the following issues:

       (1) the verdict was against the weight of the evidence
       which established Whitney's diminished capacity
       due to intoxication and negated his intent to
       commit first degree murder;3

       (2) the trial court erred in denying a motion to
       suppress his statement because he lacked the
       requisite mental capacity to make an intelligent,
       informed, knowing and voluntary waiver of his
       Miranda rights;

       (3) the prosecutor was guilty of misconduct in his
       penalty phase summation; and
_________________________________________________________________

2. Appeal directly to the Pennsylvania Supreme Court is permissible
when a defendant has received the death penalty. See 42 Pa. C.S.
SS 9711(h)(a) and 722(4).

3. Although Whitney only challenged the weight of the evidence, the
Pennsylvania Supreme Court addressed both the weight of the evidence
and the sufficiency of the evidence in its opinion, noting that the court
routinely examines the sufficiency of the evidence to sustain the first
degree murder conviction in death penalty cases. See Commonwealth v.
Whitney, 512 A.2d 232, 236 (Pa. 1986) (citing Commonwealth v.
Zettlemoyer, 500 Pa. 16, 26-27 n.3 (1982)).

                                5
       (4) various defects in the Pennsylvania death penalty
       statute.

On July 15, 1986, the Pennsylvania Supreme Court
affirmed Whitney's conviction and upheld his death
sentence. See Commonwealth v. Whitney, 511 Pa. 232, 512
A.2d 1152 (1986).4 On September 25, 1990, Pennsylvania's
governor signed a warrant for Whitney's execution.

On November 13, 1990, Whitney filed a pro se collateral
petition under Pennsylvania's Post Conviction Relief Act, 42
Pa. C. S. S 9501 et seq. (the "PCRA"), and his execution was
stayed until counsel could be appointed. Thereafter,
Whitney filed four amended petitions in which he alleged
ineffective assistance of counsel at trial and on direct appeal.5
An evidentiary hearing was held on Whitney's PCRA claims
on February 1, 1993. Whitney testified at that hearing as
did his aunt and cousin. They testified in support of
Whitney's claim that trial counsel should have presented
their testimony in mitigation at the penalty phase.
Whitney's trial counsel did not, however, testify at the
PCRA hearing. The PCRA court denied relief on January 3,
1995, and Whitney appealed to the Pennsylvania Supreme
Court. He argued that trial counsel had been ineffective in
failing to:

       (1) advise Whitney of his right to testify, call him to
       testify at trial concerning, inter alia, his intoxicated
       state, or call him to testify at the penalty phase;

       (2) comply with his purported intention to be tried by
       a trial judge and not a jury;

       (3) call a physician to testify at the guilt phase to
       support a claim of diminished capacity;

       (4) object when Sergeant Robert Wagner testified that
       Whitney maintained silence at the time of his
       arrest;
_________________________________________________________________

4. Whitney apparently did not file a petition for writ of certiorari in
the
United States Supreme Court.

5. The petitions were dated March 8, 1991, September 23, 1991,
December 17, 1991, and June 4, 1992.

                               6
       (5) present evidence of an absence of a significant
       history of criminal convictions at the penalty
       phase;

       (6) present evidence of his age of twenty-two years at
       the time of the murder as a mitigating
       circumstance at the penalty phase;

       (7) object to jury instructions and the verdict slip at
       the penalty phase because they violated Mills v.
       Maryland, 486 U.S. 367 (1988);

       (8) object to the jury instructions at the penalty phase
       because the term "torture" was not defined; and

       (9) call his aunt and cousin as witnesses to the
       penalty phase.

While his appeal was pending before the Pennsylvania
Supreme Court, Whitney filed a second pro se PCRA
petition. It was dismissed without prejudice on August 4,
1997, because Whitney's appeal of the dismissal of his first
PCRA petition was still pending before the Pennsylvania
Supreme Court. Approximately six months later, on
February 26, 1998, the Pennsylvania Supreme Court
affirmed the denial of PCRA relief. See Commonwealth v.
Whitney, 550 Pa. 618, 708 A.2d 471 (1998), and in April
1999, the governor signed another warrant for Whitney's
execution.6 The execution was scheduled for June 3, 1999.

Whitney then sought relief in federal court. The district
court initially granted a stay of execution on April 22, 1999.
On May 6, 1999, Whitney, through counsel, filed a petition
requesting federal habeas relief under 28 U.S.C.S 2254. He
argued that he was entitled to a writ of habeas corpus
based upon each of the following:

       I. the prosecutor's penalty phase argument was
       improper;

       II. trial counsel did not render effective assistance
       because he failed to investigate and present
       mitigating evidence and presented a harmful
       closing argument;
_________________________________________________________________

6. Whitney did not file a petition for certiorari in the United States
Supreme Court.

                               7
III. Whitney's statement was improperly admitted
at trial because his alleged mental impairments
rendered him unable to make a knowing and
intelligent waiver of his Miranda rights;

IV. the trial court failed to properly instruct the
jury on the nature and use of aggravating and
mitigating circumstances in violation of the
Eighth and Fourteenth Amendments;

V. the Commonwealth used peremptory challenges
to exclude African American potential jurors in
violation of Batson v. Kentucky, 476 U.S. 79
(1986) and Swain v. Alabama, 380 U.S. 202
(1965);

VI. the trial court gave an inaccurate and
misleading voluntary intoxication instruction,
trial counsel ineffectively failed to object and to
present all of the available evidence of
petitioner's intoxication, and the
Commonwealth presented insufficient evidence
of petitioner's capacity to form the specific
intent required for first degree murder;

VII. the trial court erred in failing to give a life
without possibility of parole instruction to the
jury;

VIII. the sentencing phase jury instructions
indicated that mitigating circumstances had to
be found unanimously, in violation of Mills v.
Maryland, 486 U.S. 367 (1988);

IX. the aggravating circumstance of torture was
improperly applied to him;

X. the aggravating   circumstance of "knowingly
creat[ing] a grave   risk of death to another
person in addition   to the victim" was
improperly applied   to him;

XI. the Commonwealth was improperly permitted
to introduce testimony that Whitney used an
alias;

                          8
       XII. a Commonwealth witness testified about
       Whitney's post-arrest and post-Miranda silence
       in violation of the Fifth, Eighth, and Fourteenth
       Amendments;

       XIII. trial counsel did not render effective assistance
       because he failed to advise Whitney of his right
       to testify;

       XIV. trial counsel did not render effective assistance
       because he failed to investigate, develop and
       present evidence of Whitney's innocence of first
       degree murder;

       XV. the state supreme court's arbitrary
       proportionality review denied him due process
       and rendered his death sentence
       unconstitutional under the Eighth Amendment;

       XVI. his death sentence violated various
       constitutional provisions because it was the
       result of racial discrimination;

       XVII. all state court counsel did not render effective
       assistance when they failed to raise and/or
       litigate the issues discussed in the habeas
       petition; and

       XVIII. he is entitled to relief because of the cumulative
       prejudicial effect of the errors alleged in his case.7

On May 22, 2000, the district court held a hearing to
resolve outstanding issues of exhaustion and procedural
default. The court also received evidence pertaining to
claims II, V, VI, VIII, and XII. Whitney's counsel noted that
the Pennsylvania legislature had enacted the time bar for
filing PCRA petitions under 42 Pa. C.S.A. S 9545(b)(1) while
Whitney's appeal from the denial of PCRA relief was
pending in the Pennsylvania Supreme Court. When his
appeal was finally decided in February 1998, the time for
_________________________________________________________________

7. The Commonwealth had urged dismissal of Whitney's petition under
Rose v. Lundy, 455 U.S. 509, 510 (1982), because it contained
exhausted and unexhausted claims. Whitney thereafter filed an amended
habeas petition deleting claim XVI. He apparently decided to pursue
claim XVI in state court.

                               9
filing another PCRA petition containing new claims had
already expired. Therefore, argued counsel, Whitney's
failure to assert his habeas claims in another PCRA petition
should not preclude federal review of the merits of his
habeas claims. Counsel also argued that, until November
1998, the Pennsylvania Supreme Court had observed a
"relaxed waiver" policy in cases involving the death penalty.
Under that policy, the court entertained all claims raised by
capital defendants, even though the claims may not have
been properly preserved or were procedurally barred.
Moreover, the Pennsylvania Supreme Court often reviewed
such claims even though they were asserted in PCRA
petitions that did not meet the time restrictions of 42 Pa.
C.S.A. S 9545(b)(1). Thus, counsel argued, after the
Pennsylvania Supreme Court announced that the time bar
was jurisdictional, see Commonwealth v. Banks , 556 Pa. 1
(1999), and that it would no longer observe the relaxed
waiver rule, see Commonwealth v. Albrecht, 722 A.2d 638
(Pa. 1998), any petition filed by Whitney would have been
untimely. Habeas counsel therefore, argued that the PCRA
time bar was not an adequate and independent state
procedural bar precluding federal review of the claims
which Whitney had not presented in the state courts.

The court accepted Whitney's procedural default
argument. The court concluded that, although Whitney had
not presented most of his federal habeas claims to the state
courts, exhaustion should be excused, and that the PCRA
time bar was not an adequate and independent state
ground for denying Whitney relief.

The district court then proceeded to the merits of
Whitney's challenge to the trial court's instruction on
voluntary intoxication, and his claim that trial counsel
rendered ineffective assistance in failing to object to it
(claim VI). The substance of that jury instruction is set
forth later in our discussion. For now, we simply note that
the trial judge misstated the Commonwealth's burden of
proving specific intent to kill in Pennsylvania when a
defendant introduces evidence of voluntary intoxication.
The district court concluded that the trial court's
misstatement created a substantial possibility that
Whitney's jury based its findings on an unconstitutional

                               10
ground, and that relief was therefore required under Mills v.
Maryland, 486 U.S. 367, 381 (1988). The district court
explained: "We have no way of knowing whether one or
more jurors found he was too drunk to form the specific
intent to kill and then relied on the incorrect voluntary
intoxication instruction in finding him guilty of first degree
murder, or whether they all believed that he had the
specific intent to kill and then relied upon the earlier
correct instruction in convicting him." Dist. Ct. Op. at 19.
The district court was appropriately concerned with
ascertaining with "even greater certainty" that a death
sentence rests on proper grounds. Id. at 20.

The district court also concluded that there was a"plain
and serious deficiency" in trial counsel's failure to object to
the charge. The court therefore held that Whitney had met
the first prong for establishing ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668
(1984). The court also found that Whitney had been
prejudiced by the error based upon the court's conclusion
that there was a reasonable probability that, but for
counsel's error, the result of the proceeding would have
been different. The court found a sufficient possibility that
at least one juror would not have voted to convict Whitney
of first degree murder if the court had correctly explained
that evidence of voluntary intoxication could negate the
mens rea required for a conviction of first degree murder.
Id. at 21. The district court granted the writ of habeas
corpus on that basis and did not reach any of the other
grounds for relief that Whitney asserted in his habeas
petition.

This appeal followed.

III. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. SS 1291, 2253(a).
The district court's determination of whether an issue has
been exhausted is subject to plenary review. See
Shandelmeier v. Cunningham, 819 F.2d 52 (3d Cir. 1986)
(citing Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir.
1983)). We also exercise plenary review over the district
court's legal conclusions, but we review the court's factual

                               11
conclusions under a clearly erroneous standard. See
Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1997)
(citing Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992));
Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)).8

IV. Discussion

A. Exhaustion and Procedural Default

A state prisoner must "fairly present" all federal claims to
the highest state court. See 28 U.S.C. S 2254(b), O'Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999); see also Picard v.
Connor, 404 U.S. 270, 275 (1971) (state courts should have
an opportunity to pass upon and correct alleged errors).
Whitney did not raise his challenge to the trial court's
instruction on intoxication at any level in the state courts.10
Whitney has, therefore, failed to exhaust his claim. See
O'Sullivan, 526 U.S. at 845.11 However, we "excuse" a
failure to exhaust "if it is clear that [the habeas petitioner's]
claims are now procedurally barred under [state] law." Gray
_________________________________________________________________

8. Whitney's habeas petition was filed after the Antiterrorism and
Effective Death Penalty Act ("AEDPA") became effective. However,
because the issue here is the procedural bar, and the state courts never
had the opportunity to address Whitney's challenge to the voluntary
intoxication jury instruction or counsel's ineffectiveness in failing to
object, we do not apply the restrictive standard of review contained in 28
U.S.C. S 2254(d), as amended by AEDPA.

10. Whitney's claim, as he presented it in his amended habeas petition,
was essentially threefold: (1) the trial court gave an inaccurate and
misleading voluntary intoxication instruction, and previous counsel
rendered ineffective assistance for failing to challenge the error; (2)
trial
counsel ineffectively failed to present all of the available evidence of
petitioner's intoxication; and (3) the Commonwealth presented
insufficient evidence of petitioner's capacity to form the specific intent
required for first degree murder. The district court only reached the
first
part of the claim, and the appellants have only challenged that ruling on
appeal.

11. On May 9, 2000, the Pennsylvania Supreme Court issued an order in
In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief
Cases, No. 218 Judicial Administration Docket No. 1, declaring that
federal habeas petitioners no longer have to appeal to the state supreme
court. See Wenger v. Frank, 266 F.3d 218, 225 (3d. Cir. 2001).

                               12
v. Netherland, 518 U.S. 152, 161, 116 S.Ct. 2074, 2080
(1996). See 28 U.S.C. S 2254(b)(1) (2001). We have
explained:

       `Futility' exists where: a state's highest court has ruled
       unfavorably on a claim involving facts and issues
       materially identical to those undergirding a federal
       habeas petition and there is no plausible reason to
       believe that a replay will persuade the court to reverse
       its field, where the state provides no means of seeking
       the relief sought, or where the state courts have failed
       to alleviate obstacles to state review presented by
       circumstances such as the petitioner's pro se status,
       poor handwriting and illiteracy.

Lines v. Larkins, 208 F.3d 153, 162-63 (3d Cir. 2000)
(citations and quotations omitted). However, state
procedure must "clearly foreclose" state court review of the
unexhausted claims. See Toulson v. Beyer, 987 F.2d 984,
987 (3d Cir. 1993); Doctor v. Walters, 96 F.3d 675, 681 (3d
Cir. 1996). The mere fact that it is unlikely that further
state process is available is insufficient to establish futility.
See Lines, 208 F.3d at 163 (citing Gibson v. Scheidemantel,
805 F.2d 135, 141 (3d Cir. 1986)).

The parties here agree that Whitney must attempt to file
yet another PCRA petition if he is now to assert his claims
in state court. See Commonwealth v. Ahlborn, 699 A.2d
718, 721 (Pa. 1997) (noting that in Pennsylvania, the PCRA
is the "sole means for obtaining [collateral] relief and . . .
supersedes common law remedies"). However, as Whitney
points out in his brief, the parties also agree that that
would be a useless exercise because any such petition
would be dismissed as untimely under 42 Pa. C.S.A.
S 9545(b)(1). See Appellee's Br. at 10.

Section 9545(b)(1) provides:

       Any petition under this subchapter, including a second
       or subsequent petition, shall be filed within one year of
       the date the judgment becomes final, unless the
       petition alleges and the petitioner proves that:

       (i) the failure to raise the claim previously was the
       result of interference by government officials
       with the presentation of the claim . . .

                               13
       (ii) the facts upon which the claim is predicated
       were unknown to the petitioner and could not
       have been ascertained by the exercise of due
       diligence; or

       (iii) the right asserted is a constitutional right that
       was recognized by the Supreme Court of the
       United States or the Supreme Court of
       Pennsylvania after the time period provided in
       this section and has been held by that court to
       apply retroactively.

Id. A conviction becomes final for PCRA purposes "at the
conclusion of direct review, including discretionary review
in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time
for seeking the review." Lines, 208 F.3d at 164 (quoting
Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374, 375
(1999)).12 It is now clear that this one-year limitation is a
jurisdictional rule that precludes consideration of the
merits of any untimely PCRA petition, and it is strictly
enforced in all cases, including death penalty appeals. See
Commonwealth v. Peterkin, 722 A.2d 638, 642 (1998)
(affirming the denial of a second PCRA petition as time
barred, and holding that no exception could be made for a
capital defendant); see also Banks, 726 A.2d at 376 (same,
noting that "[t]he Legislature has spoken on the requisites
of receiving relief under the PCRA and has established a
scheme in which PCRA petitions are to be accorded finality.
The gravity of the sentence imposed upon a defendant does
not give us liberty to ignore those clear mandates.").13
_________________________________________________________________

12. See 42 Pa. C.S.A. S 9545(b)(3).

13. In Banks v. Horn, 126 F.3d 206 (3d Cir. 1997), we observed that the
PCRA waiver rules had not been consistently applied in capital cases,
and held that we could not determine whether further avenues of state
court review would be "clearly foreclosed" under the PCRA waiver
provisions with respect to a claim raised in a successive PCRA petition
in a capital case. We therefore dismissed the claim as unexhausted to
allow the petitioner to return to the state courts. However, as noted
above, the Pennsylvania Supreme Court has since held that it will no
longer relax procedural requirements in capital cases. Accordingly, PCRA
petitioners who have received the death penalty are held to the same

                               14
A claim in a PCRA petition that trial counsel and
previous post-conviction counsel were ineffective for failing
to raise an issue is also subject to the time bar.
Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999)
(holding that the time limit is jurisdictional, and an
untimely petition would not be addressed simply because it
is couched in terms of ineffectiveness of counsel or because
it is filed in a capital case); Commonwealth v. Lark, 560 Pa.
487, 746 A.2d 585, 589-90 (2000) (holding that, even where
a claim of ineffectiveness was asserted at earliest stage of
proceedings, an allegation of ineffectiveness is not sufficient
to overcome otherwise untimely claims).

Whitney's conviction became final on October 15, 1986.14
We are now well beyond the limitation period for filing
PCRA petitions. Thus, absent one or more of the exceptions
set forth in S 9545(b)(1), any PCRA petition that Whitney
might now attempt to file would be untimely and
unreviewable in the Pennsylvania courts, see
Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258,
1261 (1999), as none of the statutory exceptions to the time
bar apply here.15
_________________________________________________________________

procedural requirements as all other PCRA petitioners. See Albrecht, 720
A.2d 693; Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001). Moreover, the
jurisdictional nature of the PCRA's filing deadlines is now clear. Fahy at
245 (citing Banks, supra). See also Commonwealth v. Basemore, 560 Pa.
258, 744 A.2d 717, 726 (2000).
14. This was ninety days after the Pennsylvania Supreme Court affirmed
his sentence, which was at the expiration of the time for filing a
petition
for writ of certiorari with the United States Supreme Court.
15. Whitney does not allege governmental interference, nor does he argue
a new retroactive rule of constitutional law. Furthermore, Whitney's
challenge to the jury instruction and his assertion that previous counsel
were ineffective for failing to raise the error do not constitute claims
of
after discovered evidence. See, e.g., Commonwealth v. Gamboa-Taylor,
562 Pa. 70, 753 A.2d 780, 785-786 (2000) (subsequent counsel's review
of previous counsel's representation and conclusion that previous
counsel was ineffective is not newly discovered"fact" encompassed in the
exceptions); Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915
(2000) (same). Moreover, even if Whitney's claim amounted to after-
discovered evidence under the PCRA, Whitney would still have had to file
his PCRA petition within 60 days of the date that the new evidence was
discovered, and the sixty-day deadline has long passed. 42 Pa. C.S.A.
S 9545(b)(2).

                               15
Accordingly, inasmuch as the Pennsylvania courts would
lack jurisdiction over any post-conviction petition that
Whitney might now file, he is "clearly foreclosed" from
attacking the jury instruction in state court. See Toulson,
987 F.2d at 988-89. This does not, however, mean that the
district court properly reached the merits of Whitney's
claim. In Lines we stated:

       It does not necessarily follow, however, that Lines is
       entitled to an adjudication of the merits of his
       unexhausted federal habeas claims merely because it
       is now futile to attempt to raise them in state court. A
       finding of futility merely eliminates the procedural
       pretense of requiring a federal habeas petitioner to
       return to an unavailable state forum for nonexistent
       relief. Futility, without more, does not mean that the
       federal courts may proceed to the merits of the
       petitioner's claims.

Lines, 208 F.3d at 166.

The parties here continue to argue over the proper
interpretation, application, and reach of Lines . Accordingly,
we take this opportunity to reiterate: "claims deemed
exhausted because of a state procedural bar are
procedurally defaulted." Id. at 160 (citing McCandless v.
Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)) (quotations
omitted).16 In Lines, the very same PCRA time limit barred
the petitioner from filing a second PCRA petition. Based
upon the futility of requiring Lines to cure his procedural
default, we considered his claims exhausted because
_________________________________________________________________

16. In McCandless, 172 F.3d at 260, we explained:

       When a claim is not exhausted because it has not been "fairly
       presented" to the state courts, but state procedural rules bar the
       applicant from seeking further relief in state courts, the
exhaustion
       requirement is satisfied because there is "an absence of available
       State corrective process." 28 U.S.C. S 2254(b). In such cases,
       however, applicants are considered to have procedurally defaulted
       their claims and federal courts may not consider the merits of such
       claims unless the applicant establishes "cause and prejudice" or a
       "fundamental miscarriage of justice" to excuse his or her default.

Id. (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

                               16
" `there [were] no state remedies available to him.' " Lines,
208 F.3d at 166 (quoting Coleman v. Thompson, 501 U.S.
722, 732). We thus concluded that, "[w]hen exhaustion is
futile because state relief is procedurally barred, federal
courts may only reach the merits if the petitioner makes
the standard showing of `cause and prejudice' or
establishes a fundamental miscarriage of justice." Id. (citing
Caswell v. Ryan, 953 F.2d 853, 861 (3d Cir. 1992)).

In Lines, we undertook a procedural default analysis of
cause and prejudice without providing a detailed analysis of
whether Pennsylvania's time limit was an adequate or
independent state rule for denying relief. Id. Here, the
district court determined that the time limit for filing PCRA
petitions did not constitute an adequate and independent
state ground precluding federal review. Perhaps because of
this, both the Commonwealth and Whitney devote an
inordinate amount of time in their briefs arguing about
whether an adequate and independent state ground
precludes granting Whitney federal habeas relief given his
procedural default.

Whitney acknowledges that Lines discusses the very state
procedural rule at issue here, but he argues Lines must be
distinguished because it was not a capital case, and
because we did not discuss the adequate state ground
requirement there. Appellee's Br. at 50. We are
unimpressed with Whitney's attempt to distinguish Lines as
a non-capital case. As noted above, the distinction is no
longer valid for purposes of the application of the PCRA's
time bar as it pertains to issues of exhaustion and futility.
See Peterkin, 722 A.2d at 642-43; Commonwealth v. Yarris,
731 A.2d at 586. Accordingly, the procedural default
analysis in Lines is indistinguishable from that which we
must undertake here. Moreover, nothing in the holdings of
the Supreme Court or in the text of 28 U.S.C. S 2254
suggests that the exhaustion requirement for defendants
sentenced to death is different for those defendants who
receive a lesser sentence. Accordingly, we must determine
if Whitney can establish cause and prejudice for his
procedural default.

As noted above, Whitney's cause and prejudice argument
is intertwined with the merits of his Sixth Amendment and

                               17
due process claims. He argues that trial counsel was
ineffective for failing to object to the jury charge on
voluntary intoxication, and that counsel's failure to
recognize the merits of this argument in state court
constitutes ineffective assistance of counsel and
demonstrates the cause and prejudice necessary to excuse
the procedural default. See Coleman v. Thompson , 501 U.S.
at 750 ("Where a petitioner defaults a claim as a result of
the denial of the right to effective assistance of counsel, the
state, which is responsible for the denial as a constitutional
matter, must bear the cost of any resulting default and the
harm to the state interests that federal habeas review
entails.").17 We will begin the inquiry into counsel's
stewardship by determining if the jury charge was defective.

B. Was The Jury Instruction Erroneous?

Whitney was convicted of first degree murder pursuant to
18 Pa. C.S.A. S 2502. Section 2502 states in relevant part:
"[a] criminal homicide constitutes murder of the first degree
when it is committed by an intentional killing." Under
Pennsylvania law, the Commonwealth had to establish
beyond a reasonable doubt that Whitney "[had] the specific
intent to kill . . . and [was] conscious of his own intention."
Commonwealth v. Hannibal, 562 Pa. 132, 140 (Pa. 2000). A
killing in Pennsylvania is with the "specific intent to kill if
it is willful and deliberate." Id. However, Pennsylvania
recognizes that someone can be intoxicated to such an
extent that he/she is not capable of forming a specific
intent to kill. Commonwealth v. Graves, 461 Pa. 118 (1975).

Given the aforementioned evidence of intoxication, the
trial court charged the jury on the possible effect of
voluntary intoxication upon Whitney's mens rea. Inasmuch
_________________________________________________________________

17. Whitney and the Commonwealth also argue over whether
Pennsylvania's relaxed waiver rule for capital cases may constitute
"cause" for Whitney's procedural default. However, it is not necessary for
us to answer that question here because we conclude that Whitney can
not make the threshold showing of prejudice. See Frady, 456 U.S. 152,
167 (1982) (finding it unnecessary to determine whether petitioner had
demonstrated cause, because he had not suffered actual prejudice
sufficient to justify collateral relief).

                               18
as that charge is the sole basis for the disputed relief, we
will quote the relevant portions at length. The trial court
instructed the jury:

        With one exception, which I will define later,
       voluntary intoxication is not a defense to a criminal
       charge. A person who uses intoxicants cannot become
       so drunk that he is, for that reason, legally incapable
       of committing a crime.

        Among the elements of the crime of burglary,
       attempted rape, possession of an instrument of crime
       and terroristic threats is that the defendant had a
       certain criminal intent with respect to each of these
       crimes at the time they were committed. . . .

        However, in terms of being found guilty, a defendant
       cannot ordinarily be found guilty of the crimes involved
       here unless he had the required state of mind--that is,
       the intent to commit the crime, the criminal intent--at
       the time of the alleged crime.

        However, in the case of a voluntarily intoxicated
       defendant, it is not necessary that the defendant be
       conscious or aware of his own state of mind. It is
       enough if the required mental state is present
       somewhere in his drunken mind or expressed in his
       acts.

        Thus, if you are satisfied beyond a reasonable doubt
       that the defendant committed particular crimes as I
       have defined before in my instructions, you should find
       him guilty of those crimes, even though you believed he
       was intoxicated at the time.

        However, as I indicated a few moments ago, the
       general rule is that voluntary intoxication is not a
       defense to a criminal charge. However, there is one
       modifying circumstance to that rule which says that
       the voluntary use of intoxicants does not preclude a
       person from being legally capable of committing a
       crime. The qualification is where the crime which is
       charged is first degree murder.

        In connection with that crime, the defendant is
       permitted to claim, as a defense, that he was so drunk

                               19
       at the time of the killing that he did not possess the
       specific intent to kill required for first degree murder.
       The Commonwealth has the burden of disproving this
       defense.

        Thus you cannot find the defendant guilty of first
       degree murder unless you are satisfied beyond a
       reasonable doubt that the defendant was not so
       intoxicated at the time that he was incapable of judging
       his acts and their consequences or being capable of
       forming a willful, deliberate and premeditated design to
       kill.
       Now, let me repeat that again for you.

        The Commonwealth has the burden of disproving
       this defense.

        Thus, you cannot find the defendant guilty of first
       degree murder unless you are satisfied beyond a
       reasonable doubt that the defendant was so intoxicated
       at the time that he was incapable of judging his acts
       and their consequences or incapable of forming a willful,
       deliberate and premeditated design to kill.

        Voluntary intoxication may reduce a crime of murder
       from first degree, to third degree. Voluntary
       intoxication, however, is no defense to a charge of
       second or third degree murder or of voluntary
       manslaughter, nor, as I indicated earlier, is it a defense
       to any of the other crimes with which this defendant is
       charged. . . .

Appellants App. at pp. 786-89 (emphasis added). All agree
that the italicized portion of the charge is incorrect and that
"was" and "so" should have been separated by "not." The
Commonwealth has argued at several points during the
proceedings that the error is probably only one of
transcription. However, there is nothing in the record to
support such a blase assertion, and we obviously can not
decide this case on the basis of that unsupported
argument.

Because the misstatement of law concerns the very
defense which may negate the specific intent required for
murder in the first degree, it is potentially a substantial

                               20
error. The Commonwealth cites to Henderson v. Kibbe, 431
U.S. 145, 153 (1977), in arguing that this single defect did
not rise to the level of constitutional error when considered
in context with the charge as a whole. Despite the"slip of
the tongue," argues the Commonwealth, the trial court
properly instructed that voluntary intoxication can negate
the necessary specific intent and reduce a homicide to third
degree murder. The Commonwealth reminds us that the
trial court twice instructed the jury that the prosecution
shouldered the burden of disproving voluntary intoxication.
In Henderson, supra, the Court found that the state court's
omission of an instruction regarding causation in a murder
instruction was not a constitutional error requiring habeas
relief because, taken as a whole, the challenged instruction
sufficiently informed the jury about the element of
causation. Id.

However, that is quite different from what occurred in
Whitney's case. Here, the law regarding specific intent was
explained elsewhere in the jury instruction--in the
description of different degrees of murder given
approximately thirty pages before the voluntary intoxication
instruction (Appellants App. at p. 747-51). That law was
also correctly explained after the faulty instruction when
the court answered a specific jury question about the
degrees of murder, and the elements of burglary, and
robbery. 808-21.

However, the law on voluntary intoxication insofar as it
applies to the charge of first degree murder was explained
only at the single instance quoted above. That instruction
concluded with a misstatement of the law. There is no
question that this instruction would have been critical to a
juror's understanding of the law of voluntary intoxication.
It was the only time that the legal consequences of
intoxication with respect to specific intent to kill were
explained. Cf. Humanik v. Beyer, 871 F.2d 432, 441 (3d
Cir. 1989) (finding that, where there was no other language
in instruction to dilute express instruction that defendant
had the burden of proving by a preponderance of the
evidence that he had mental disease or defect that negated
the intent to kill, burden of proof was impermissibly shifted
to defendant).

                               21
The Commonwealth notes that the trial court gave the
correct instruction for voluntary intoxication immediately
before repeating the instruction in which it omitted"not." It
also argues the court instructed the jury that "[v]oluntary
intoxication may reduce the crime of murder from first
degree, to third degree," immediately after the incorrect
instruction. App. Appendix Vol. III, at 789. However, while
a single defect does not necessarily make an instruction
erroneous, see Henderson, a defect in a charge may result
in legal error if the rest of the instruction contains language
that merely contradicts and does not explain the defective
language in the instruction. See Francis, 471 U.S. at 322;
see also United States v. Hernandez, 176 F.3d 719, 733
(finding an instruction on reasonable doubt to be
unconstitutional, where a later clarification of the term did
not serve to "unring the bell"). As the Supreme Court
explained in Francis, 471 U.S. at 322, other language in the
instruction does not always serve to cure the error. This is
so even when other language correctly explains the law. In
Francis, the Court found that an erroneous jury instruction
on intent created a mandatory presumption that the jury
must infer a presumed fact if the state proved predicate
facts. The Court concluded that this constitutional flaw had
not been cured by subsequent language correctly explaining
the operation of presumptions that immediately followed
the challenged portion of the instruction. id. at 319-20. The
Court reasoned that the additional language would not
have clarified the issue, and may have permitted another,
impermissible interpretation by a reasonable juror. Id. at
325.

Here, the location of the error in context with the rest of
the charge, considered along with the correct, but
confusing language in the instruction, causes us to view
this "single deficiency" as quite problematic. Neither the
correct statements of law within the instruction, nor the
statement immediately after the instruction, completely
negated or explained the absolutely incorrect statement of
law in the context of the rest of the instructions. Moreover,
the first correct statement of the law is itself somewhat
confusing, because of the use of double negatives:"you
cannot find the defendant guilty of first degree murder
unless you are satisfied beyond a reasonable doubt that the

                               22
defendant was not so intoxicated at the time that he was
incapable of judging his acts and consequences .. ."
Appellants App. at 788-89 (emphasis added). The trial
judge stated that he would repeat the instruction. However,
it is likely that, upon hearing that, any juror who was even
slightly confused by the previous instruction would have
paid particular attention to the reiteration. That reiteration
was, of course, incorrect. See Francis, 471 U.S. at 321 n.7
(noting that, after hearing conflicting intent instructions, it
is reasonable to expect a juror "to attempt to make sense of
a confusing earlier portion of the instruction by reference to
a later portion of the instruction").

Immediately before repeating the instruction, the judge
correctly stated that the Commonwealth had the burden of
disproving the defense, but then misstated the law. Thus,
it is reasonably likely, when considered in the context of the
instructions on voluntary intoxication, that a juror believed
that the defendant had to prove intoxication beyond a
reasonable doubt and that the Commonwealth had the
burden of disproving the defense by a lesser standard.
Compare Humanik, 871 F.2d 442-43 (instructions
unconstitutionally placed the burden of proof on the
defendant)," and Johnson v. Rosemeyer, 117 F.3d 104, 111
(3d Cir. 1997) (no due process problem where defendant
not entitled under federal law to have instruction contain
certain elements of justification defense, contrasting cases
where instruction unconstitutionally shifts burden of proof
of an element onto defendant, in violation of due process).

Because it is reasonably likely that a juror interpreted
the instruction as allowing a finding of specific intent to kill
based on something less than proof beyond a reasonable
doubt, the instruction arguably denied Whitney the due
process of law. See Francis, 471 U.S. at 321 n.7.

The sentence immediately subsequent to the disputed
phrase, stating that voluntary intoxication may reduce a
murder from first degree to third degree, conceivably cured
part of the problem. However, that explanation said nothing
about the standard of proof required for intoxication. It did
not explain that the Commonwealth was required to
disprove intoxication beyond a reasonable doubt, or that

                               23
Whitney did not have to prove intoxication beyond a
reasonable doubt. See Humanik, 871 F.2d at 442-43.

Thus, the Commonwealth's claim that "given the court's
charge as a whole, no reasonable juror could possibly have
concluded that Whitney could be found guilty of first degree
murder only if he was intoxicated," Appellants Br. at 69,
misses the point. The problem is not only that a reasonable
juror might have actually believed that to be the case. The
greater problem is that it was reasonably likely that a juror
believed that intoxication had to be established beyond a
reasonable doubt and/or that the prosecution then had to
disprove the defense by a lower standard of proof. It is
unreasonable and improper to assume that lay persons can
recognize that an incorrect standard of proof has been
described in a jury instruction.

       "Jurors do not sit in solitary isolation booths parsing
       instructions for subtle shades of meaning in the same
       way that lawyers might. Differences among them in
       interpretation of instructions may be thrashed out in
       the deliberative process, with commonsense
       understanding of the instructions in the light of all that
       has taken place at the trial likely to prevail over
       technical hairsplitting."

Boyde v. California, 494 U.S. 370, 380-81 (1990). However,
expecting jurors' "common sense" judgment to prevail over
the court's instructions would conflict with the
presumption that juries follow their instructions. See Zafrio
v. United States, 506 U.S. 534, 541 (1993). We presume
"that jurors, conscious of the gravity of their task, attend
closely the particular language of the trial court's
instruction in a criminal case and strive to understand,
make sense of, and follow the instructions given them."
Francis, 471 U.S. at 324 n. 9. Accordingly, we agree with
the district court's conclusion that the trial court's charge
on voluntary intoxication was erroneous.

C. Prejudice

Of course, our conclusion that the charge was erroneous
does not end our inquiry. Instructional errors must often be
examined for harmless error before a defendant is entitled

                               24
to relief. See Smith, 120 F.3d at 417 n.5 (citing Kontakis v.
Beyer, 19 F.3d 110, 116 (3d Cir. 1994)). Accordingly, the
harmless error test announced in Brecht v. Abrahamson,
507 U.S. 619 (1993), bears on our analysis. Under Brecht,
an error must have a "substantial and injurious effect or
influence in determining the jury's verdict" before it can be
considered harmful and require relief. 507 U.S. at 632 n.7.

Moreover, Whitney alleges not only that the jury
instruction was unconstitutionally infirm, but also that
counsel was ineffective for failing to object at trial. In order
to establish ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), Whitney
must establish that trial counsel's stewardship fell below an
objective standard of reasonableness, and that counsel's
dereliction was prejudicial. Strickland, 466 U.S. at 687.18
Given our discussion of the nature of the defect in this
charge, and the problems that arise from it, it follows a
fortiori that unless counsel had a strategic reason for not
objecting, Whitney will satisfy the first prong of Strickland.
Whitney has not offered any testimony about trial counsel's
reasons for not objecting, and Whitney has the burden of
establishing ineffectiveness. However, we can not imagine
any justification for a defense attorney not attempting to
correct this kind of error in an instruction on the only
_________________________________________________________________

18. Whitney argues that his ineffective assistance of counsel claim is
exhausted. The Commonwealth disagrees. The district court concluded
that "[i]t is undisputed that Whitney has no remaining avenue in the
courts of Pennsylvania for litigating any of the claims he has alleged in
his amended petition," and that "it is conceded that Whitney did not
pursue, either on direct appeal or in his PCRA proceeding, a number of
the claims alleged in his pending petition." Dist. Ct. Op. at 3.

The ineffective assistance of counsel claim actually has three
components. In addition to challenging trial counsel's failure to object
to
the charge, Whitney argues that trial counsel did not adequately
investigate his intoxication before trial, and that he was ineffective in
failing to present certain testimony related to his intoxication. We will
limit our discussion to the first of these three components because our
analysis as to that part of his claim disposes of the remaining
components of his ineffectiveness claim. Moreover, that is the only claim
that the district court reached, and it is the only ruling that is
challenged on appeal.

                               25
defense his/her client could possibly have to a charge of
capital murder.

However, in order to establish the requisite prejudice to
satisfy the second prong of Strickland, Whitney must
demonstrate "a reasonable probability that the result would
have been different but for the professional errors." Deputy
v. Taylor, 19 F.3d 1485, 1493 (3d. Cir. 1994). Because
Whitney alleges in this one claim both a due process
violation based upon the faulty jury instruction and a Sixth
Amendment violation based upon counsel's failure to
object, it is not readily apparent whether the Brecht
standard for harmless error and/or the Strickland standard
of prejudice should be applied.19 However, we need not
resolve that subtlety because, given the circumstances
here, the ultimate issue under either test reduces to
determining what effect, if any, the erroneous instruction
had on the jury's verdict. Accordingly, if Whitney
demonstrates that the erroneous instruction had a
"substantial and injurious effect or influence in determining
the jury's verdict," such that it was not harmless under
Brecht, 507 U.S. at 637, he has also demonstrated that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694. He would
also have paved the way to excusing the procedural default
by establishing "cause." See Coleman, supra. With these
principles as our guide, we will examine the trial testimony
to determine if Whitney can meet this burden.

The district court explained its conclusion that the
erroneous charge warranted habeas relief as follows:
_________________________________________________________________

19. The district court held that Whitney had established prejudice under
Strickland. Dist. Ct. Op. at 21. The court did not apply the harmless
error test of Brecht before finding prejudice under Strickland. Some cases
have held that if a habeas petitioner meets the Strickland test, then
he/she need not also demonstrate that the error was harmful. See Hill
v. Lockhart, 28 F.3d 832, 838 (8th cir. 1994) (holding that analysis
under Brecht harmless error test is unnecessary in evaluation of whether
petitioner in habeas case has presented constitutionally significant claim
for ineffective assistance of counsel); Smith v. Dixon, 14 F.3d 956, 974,
976 (4th cir. 1994) (en banc) (concluding that prejudice inquiry under
Strickland is essentially the same inquiry as the harmless error inquiry).

                               26
       Given that there was sufficient evidence of Whitney's
       intoxication to make his state of mind a question for
       the jury, and given that the judge improperly
       instructed the jury on the law of specific intent and
       voluntary intoxication, there is a "reasonable
       probability" that, but for counsel's omission,"the result
       of the proceeding would have been different." Id. [citing
       Strickland.] Had counsel objected at trial, the court
       could easily have corrected the error and made the
       proper instruction clear. There is a reasonable
       probability that, if the error in the charge had been
       corrected, at least one juror would not have voted to
       convict petitioner of first degree murder. Our
       confidence in the conviction and sentence has been
       undermined by the seriously deficient representation of
       trial counsel. We conclude that Whitney has
       successfully established his claim of ineffective
       assistance of counsel under the Sixth and Fourteenth
       Amendments.

Dist. Ct. Op. at 21. We disagree. The evidence of Whitney's
state of mind was such that the integrity of his conviction
for first degree murder is not undermined in the least by
the erroneous jury charge.

It is uncontroverted that the victim suffered twenty-four
stab wounds, including a deep wound to the head, and
another wound to the ventricle of his heart. In
Pennsylvania, specific intent to kill may be demonstrated
by nothing more than use of a deadly weapon upon a vital
part of the body. See Commonwealth v. May, 540 Pa. 237,
656 A.2d 1335, 1340 (1995) (finding specific intent where
victim suffered five stab wounds to upper body);
Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90, 95
(1995) (finding specific intent where defendant shot one
victim in head and chest, another victim twice in the head,
and stated his intent to kill victim before shooting). Thus,
in Commonwealth v. Meredith, 490 Pa. 303, 311, 416 A.2d
481, 485 (1980), based upon the number and severity of
the blows inflicted, areas of the body where the blows were
administered, and relative size and age of the victim, the
court stated: "[i]f a deadly force is knowingly applied by the
actor to the person of another, the intent to take life is as

                               27
evident as if the actor stated the intent to kill at the time
the force was applied."

Here, of course, Whitney did just that. He proclaimed his
intent to kill during the course of his intrusion into the
deceased's apartment. The jurors did not have to rely upon
the circumstantial evidence of the number and severity of
the wounds to determine if Whitney intended to kill. They
could merely take him at his word. Whitney's
announcement of his intent perfectly coincides with, and
explains, the location and number of the victim's wounds.
See Commonwealth v. Ford, 539 Pa. 85, 650 A.2d 433, 437
(1994) (specific intent to commit crime may be established
through defendant's words or acts, or circumstantial
evidence, considered with all reasonable inferences from
that evidence) (citing Commonwealth v. Iacobino , 319 Pa.
65, 178 A. 823 (1935)). There was, therefore, no real issue
about whether his blows just happened to land on a vital
part of the victim's body.

Of course, the prosecution's burden in a criminal case is
a high one. A capable defense attorney might attempt to
raise a reasonable doubt by arguing to the jury that
Whitney was so intoxicated that he did not know what he
was saying, that he was simply ranting in a drunken
stupor, and that his blows just happened to land on vital
organs as he coincidentally stated an "intent" to kill.
However, that was not the evidence. Whitney did not flail
his arms about in a wild, unfocused, and uncontrolled
manner. Nor was he ranting when he expressed his intent
to kill his victim. Rather, the evidence easily establishes
beyond a reasonable doubt that he knew exactly what he
was saying, and exactly what he was doing. Murtaza
testified that Whitney's demeanor was calm and collected.
This is corroborated by his behavior while he was in her
apartment. In the middle of that burglary, while struggling
with Murtaza, he walked to her refrigerator to get a drink
of water after ripping her clothes off and announcing that
he was going to rape her and kill her husband.

We realize, of course, that there was evidence that
Whitney was woozy, and that his speech was slurred, and
he had alcohol on his breath. However, that is merely what
entitled him to a voluntary intoxication charge. It must be

                               28
considered in context with the entire record, most of which
is undisputed. For example, it is undisputed that Whitney
was only able to perpetrate these attacks after he climbed
onto a second-story ledge and then climbed through not
one, but two windows. He was sufficiently cognizant to
realize that his first victim might identify him, and he
therefore inquired about her ability to recognize him. He
then again negotiated the second-story ledge once again
and maneuvered to the apartment where the fatal stabbing
occurred. There, he was again able to climb from the ledge
through a window. That is not consistent with the actions
of one who is in a drunken stupor.

However, the most telling evidence of Whitney's lucid
mental state is the fastidious manner in which he
attempted to prevent Ms. Minor from speaking on the
telephone. We refer not merely to his instructions to her
when she tried to place a telephone call, but his actions in
disabling her telephone as well. In disabling that phone,
Whitney demonstrated motor coordination and dexterity, as
well as presence of mind and cognition that was totally
inconsistent with the level of impairment that might create
a reasonable doubt about one's ability to form the specific
intent to kill. He did not merely cut the telephone wires, he
disassembled the telephone, unscrewed the speaker portion
of the handset, and removed the microphone inside. He
thereby rendered the phone inoperable. See id. at 357.

In addition, when Murtaza emptied her purse Whitney
had sufficient mental facility to appreciate the amount of
money she had and express disappointment that she did
not have more. And he similarly demonstrated his intent to
rape Murtaza, and clearly demonstrated an intent to do so
by opening his pants and taking out his penis, just as he
demonstrated his intent to kill by announcing his intent
and then stabbing his victim twenty-four times.

A verdict may still stand, despite erroneous jury
instructions, where the predicate facts "conclusively
establish intent, so that no rational jury could find that the
defendant committed the relevant criminal act but did not
intend to cause the injury." Rose v. Clark , 478 U.S. 570,
580-81 (1986). "In that event . . . [,] the jury has found, in
Winship's words, `every fact necessary' to establish every

                                29
element of the offense beyond a reasonable doubt." Carella
v. California, 491 U.S. 263, 266 (1989) (per curiam)
(quoting Rose, 478 U.S. at 580-81). That is what we have
here.

"Surely, there is no substantial likelihood [this] erroneous
. . . instruction[ ] prejudiced [Whitney's] chances with the
jury." Frady, 456 U.S. at 174; See also Burger v. Kemp, 483
U.S. 776, 782 n.5 (1987) (erroneous instruction was
harmless where evidence was so dispositive of intent that it
could be said beyond a reasonable doubt that jury's
deliberations were not affected by them). Faced with this
evidence we do not understand how any reasonable jury
could have had any doubt about whether Whitney was too
inebriated to form the intent to kill. The evidence of
Whitney's mental state was nothing short of overwhelming.
Accordingly, we can not agree with the district court's
conclusion that the erroneous instruction in any way
undermined this verdict. Whitney's claim of prejudice fails
under both Brecht and Strickland. There is no reasonable
probability that, "but for counsel's failure to object to the
faulty instruction, the result of the proceeding would have
been different." Werts v. Vaughn, 228 F.3d 178, 193 (3d
Cir. 2000) (quoting Sistrunk, 96 F.3d at 670). Similarly, the
erroneous instruction could not have had a "substantial
and injurious effect or influence in determining the jury's
verdict." Brecht, supra.

D. Fundamental Miscarriage of Justice / Actual
       Innocence

As noted above, we also excuse a procedural default
where failure to excuse it would result in a fundamental
miscarriage of justice. Accordingly, we will adjudicate the
merits of a defaulted claim where it is more likely than not
that no reasonable juror would have convicted a defendant
absent the claimed error. See Schlup v. Delo, 513 U.S. 298,
326, (1995) (adopting the standard articulated in Murray v.
Carrier, 477 U.S. 478, 496 (1986)). We also conduct this
inquiry into "actual innocence" "in light of all the evidence,
including that alleged to have been illegally admitted (but
with due regard to any unreliability of it) and evidence
tenably claimed to have been wrongly excluded or to have

                                30
become available only after the trial." Schlup, 513 U.S. at
327, 115 S.Ct. at 867 (quotation omitted).

Whitney does not even have a colorable claim of actual
innocence. In his amended habeas petition, he made an
assertion in the context of another of his claims that he did
not commit the homicide, and that "[a]t best, Mr. Whitney
was merely a lookout with, at most, the intent to commit a
burglary." Amended Habeas Petition for Writ of Habeas
Corpus, at 151. He does not renew that assertion here.
Moreover, in light of the foregoing discussion of the
evidence of his intoxication, it is obvious that Whitney was
not so intoxicated as to be unable to form the intent to kill.
Accordingly, Whitney does not fall under the "actually
innocent of the death penalty" exception that would have
allowed the district court to reach the merits of his
challenge to the jury instruction. See Schlup , supra. We
therefore conclude that the district court erred in granting
Whitney relief based upon the erroneous jury instruction.

V. Conclusion

In Weeks v. Snyder, 219 F.3d 245, 261 (3d Cir. 2000), we
stated:

       [w]e are not unaware of the controversy currently
       surrounding the imposition of the death penalty in this
       country. However, this case does not trench upon the
       issues [so often] in the forefront of that controversy,
       usually identification of the defendant or the
       defendant's competency at any of the critical stages of
       the event or the criminal proceeding. . . . Whether this
       is an appropriate case for administration of the death
       penalty is a political question, not a judicial one.

Similarly, our task here is limited to reviewing the propriety
of the district court's grant of habeas relief based upon the
record and Whitney's assertions of error. For all the reasons
set forth above, we hold that the district court's order
granting habeas relief under 28 U.S.C. S 2254 must be
vacated, and we will remand the matter for consideration of
the remaining claims in Whitney's amended habeas
petition. In doing so, we take no position as to whether the

                               31
district court is precluded from reaching the merits of any
of those claims based upon any procedural default.

A True Copy:
Teste:

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

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