                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2008

Holland v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9001




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                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

             Nos. 01-9001 and 01-9002


              WILLIAM HOLLAND,

                              Appellant in No. 01-9001

                         v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA
        DEPARTMENT OF CORRECTIONS;
 PHILIP L. JOHNSON, SUPERINTENDENT OF THE
     STATE CORRECTIONAL INSTITUTION,
 GREENE COUNTY; JOSEPH P. MAZURKIEWICZ,
       SUPERINTENDENT OF THE STATE
  CORRECTIONAL INSTITUTION AT ROCKVIEW


              WILLIAM HOLLAND,

                         v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA
        DEPARTMENT OF CORRECTIONS;
 PHILIP L. JOHNSON, SUPERINTENDENT OF THE
     STATE CORRECTIONAL INSTITUTION,
 GREENE COUNTY; JOSEPH P. MAZURKIEWICZ,
       SUPERINTENDENT OF THE STATE
  CORRECTIONAL INSTITUTION AT ROCKVIEW,

                              Appellants in No. 01-9002

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
             (D.C. Civ. No. 99-02551)

                         1
      Honorable Franklin S. VanAntwerpen, District Judge


                   Argued December 18, 2007

            BEFORE: CHAGARES, GREENBERG,
                and COWEN, Circuit Judges

                     (Filed: March 6, 2008)


Ellen Berkowitz
Matthew C. Lawry
David W. Wycoff (argued)
Maureen Kearny Rowley
Chief Public Defender
Defender Association of
Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center
Independence Square West
Philadelphia, PA 19106

   Attorneys for Appellant in No. 01-9001

David Curtis Glebe (argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy, Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499

   Attorneys for Appellants in No. 01-9002



                                    2
                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

                      I. INTRODUCTION

        This matter comes on before this Court on an appeal and
cross-appeal from a final order entered in the District Court on
April 25, 2001, in this habeas corpus action under 28 U.S.C. §
2254 following extensive proceedings in the Pennsylvania state
courts leading to appellant William Holland’s conviction at a
jury trial bifurcated between guilt and penalty phases on, among
other charges, first degree murder. Following Holland’s
conviction the jury in the second phase of the trial imposed the
death penalty. Subsequently, after the Pennsylvania Supreme
Court affirmed Holland’s conviction and sentence, he filed a
state post-conviction relief application but the trial court denied
the petition and the Pennsylvania Supreme Court affirmed the
denial. Consequently, we hardly write on a blank slate as the
Supreme Court set forth the background of the matter in its
opinions. Commonwealth v. Holland, 543 A.2d 1068 (Pa.
1988); Commonwealth v. Holland, 727 A.2d 563 (Pa. 1999).
Furthermore, the District Court reiterated the background of the
case in an exceptionally comprehensive opinion in which it
granted Holland relief with respect to the penalty phase of the
bifurcated state proceedings but denied him relief with respect to
the guilt phase and thus from the conviction for the murder.
Holland v. Horn, 150 F. Supp. 2d 706 (E.D. Pa. 2001)
(“Holland”).1 Holland appeals from the denial of relief with



       1
        We are not mentioning Holland’s convictions for the other
offenses in this opinion again. But we do point out that he
acknowledges that: (1) “[t]here was overwhelming evidence that
[he] was the assailant”; (2) he gave two very detailed voluntary
confessions that he acknowledges were not “false”; and (3) “there
was strong evidence of his presence at the scene of the offense and
consciousness of guilt.” Appellant’s br. at 2. Moreover, he
recognizes that “[g]iven the overwhelming evidence that [he] was

                                 3
respect to his first degree murder conviction and the
Commonwealth respondents cross-appeal from the granting of
relief from the imposition of the death penalty.

       In view of the foregoing opinions we need not repeat the
background of the case at great length. Rather, it is sufficient to
note that after the District Court entered its order Holland
appealed, and, on his application, we granted a certificate of
appealability raising the following questions:

       whether: the District Court erred in finding
       various of [Holland’s] claims procedurally
       defaulted; [Holland] was denied his right of an
       expert at the guilt phase; the sentencing court’s
       instructions violated Mills [v. Maryland, 486 U.S.
       367, 108 S.Ct. 1860 (1988),] and improperly told
       the jury to count rather than weigh aggravating and
       mitigating factors; the prosecutors improperly
       commented on [Holland’s] silence at sentencing;
       and [ ] counsel was ineffective at the guilt and
       penalty phase [of the state trial court’s
       proceedings].

App. at 99. The Commonwealth respondents did not need a
certificate of appealability to proceed with their appeal. See
Hardcastle v. Horn, 368 F.3d 246, 253 (3d Cir. 2004).




     II. JURISDICTION AND STANDARD OF REVIEW




the assailant . . . [his] ‘mental condition was his only viable
defense’ at [the] guilt phase and viable ‘mitigation for sentencing
purposes.’” Id. at 4 (quoting Holland, 150 F. Supp. 2d at 755-56).
In the circumstances, even though Holland challenges aspects of
both phases of the state proceedings, it is not surprising that the
most substantial issue on this appeal concerns the imposition of the
death penalty on the first degree murder conviction.

                                 4
       The District Court had jurisdiction under 28 U.S.C. §§
2241(a) and 2254(a) and we have jurisdiction under 28 U.S.C.
§§ 1291 and 2253. See Washington v. Sobina, 509 F.3d 613,
618-19 (3d Cir. 2007). Inasmuch as the District Court did not
conduct an evidentiary hearing our review of its order is plenary.
See Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005). The District
Court used the applicable standards of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and
thus we need not make further reference to those standards.




                       III. DISCUSSION

       (a) Procedural Default and Exhaustion of Remedies

        After our review of the parties’ thorough briefs and
entertainment of their oral arguments we are in agreement with
the result that the District Court reached and largely, though not
entirely, are in agreement with its reasoning. Therefore we will
affirm the District Court’s order granting habeas corpus relief
from the imposition of the death penalty but otherwise denying
Holland relief for substantially the reasons that it set forth. We,
however, disagree with the District Court’s disposition of a
procedural default question principally concerning the treatment
of a claim that Holland advances under Ake v. Oklahoma, 470
U.S. 68, 105 S.Ct. 1087 (1985). Ake addressed the need for the
availability to a defendant of a psychiatrist to whom he will have
access if his sanity will be a significant factor at the trial. The
District Court held that Holland procedurally defaulted his Ake
claim but that his appellate attorney was ineffective for not
raising an Ake issue on direct appeal and that Holland satisfied
the cause and actual prejudice standard permitting him to raise
the Ake claim even though it was procedurally defaulted.

       In Bronshtein v. Horn we explained that “[t]he procedural
default doctrine precludes a federal habeas court from
‘review[ing] 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

                                 5
judgment.’” 404 F.3d 700, 707 (3d Cir. 2005) (quoting Coleman
v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2253-54
(1991)). But adequacy with respect to procedural default is not
synonymous with, though it may be related to, the opportunity of
a petitioner to have asserted his claims in the state court. Rather,
explaining adequacy negatively, we indicated in Bronshtein that
“state procedural rules have been held to be inadequate if they
are not ‘firmly established and regularly followed’ or if they are
‘novel[ ]’ and unforeseeable.” Id. (quoting Ford v. Georgia, 498
U.S. 411, 424, 111 S.Ct. 850, 858 (1991), and NAACP v.
Alabama ex. rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163,
1169 (1958)) (alteration in original) (citations omitted). Thus, as
we indicated in Cabrera v. Barbo, before we decided Bronshtein,
“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.” 175 F.3d 307, 313 (3d Cir.
1999).

        The application of the procedural default doctrine works
in tandem with the requirement that a petitioner exhaust his
remedies in the state courts before making his federal claims in a
federal court. Usually when a petitioner exhausts his remedies in
the state courts and then files a federal habeas corpus petition the
state courts will have rejected his federal claims on the merits.
Nevertheless, a petitioner will have exhausted his state remedies
even if the state court does not address his federal claims on the
merits but, instead, rejects the claims on an independent and
adequate state ground. See Cabrera, 175 F.3d at 312-13. If that
happens the petitioner ordinarily will not obtain a decision by
any court, federal or state, addressing his federal claims on the
merits.

       But there are limitations on when a procedural default can
close the federal door to a petitioner for if a procedurally
defaulted petitioner is able to “demonstrate cause for the default
and actual prejudice as a result of the violation of federal law”
he can obtain a federal court decision addressing his federal
claims on the merits. Coleman, 501 U.S. at 750, 111 S.Ct. at
2565. A petitioner can establish cause for avoiding the
procedural default bar when he demonstrates, among other

                                 6
possible showings, that, as the District Court held was the case
here, “the procedural default is the result of ineffective
assistance of counsel . . . .” Murray v. Carrier, 477 U.S. 478,
488, 106 S.Ct. 2639, 2645 (1986). But even if a petitioner
establishes cause for the procedural default, the showing that he
must make to obtain relief that he suffered actual prejudice
attributable to the ineffective assistance of counsel requires that
the error of which he complains “worked to his actual and
substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S.
152, 170, 102 S.Ct. 1584, 1596 (1982).

        The District Court found that Holland defaulted certain of
his claims, including his Ake claim, at the guilt phase of the
proceedings, but also held that all of his claims relating to the
guilt phase of the proceedings, defaulted or not, were meritless.
We agree that all of Holland’s guilt phase claims are meritless
and, except for the Ake claim, we find no reason to comment on
them as we cannot add to the District Court’s painstaking
analysis of those claims. Thus, we will not disturb the state
court proceedings by granting Holland relief from his custody on
the basis of his assertion that there was constitutional error at the
guilt portion of his trial.

        The District Court, however, did grant Holland relief
under Ake from the imposition of the death penalty at the
penalty phase of the proceedings. The Supreme Court held in
Ake that due process of law requires “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, 105 S.Ct. at 1096. Moreover, under
Ake this right requires that he has a competent psychiatrist
available to assist him both at the guilt and sentencing phases of
the state court proceedings. Id. at 84, 105 S.Ct. at 1097. Thus,
we have explained that, under Ake, “when a capital defendant
demonstrates that his mental condition is a significant factor at
his sentencing phase, he is entitled to the assistance of a

                                  7
psychiatrist . . . .” United States v. Roman, 121 F.3d 136, 144
(3d Cir. 1997) (internal quotation marks omitted).

        Notwithstanding Ake, Holland’s attorney before his trial
did not seek an Ake appointment even though the Supreme
Court decided Ake about four months before the trial.
Nevertheless, the trial court, before both the guilt phase of the
trial and the Supreme Court’s opinion in Ake, with Holland’s
acquiescence appointed an impartial psychiatrist for the case.
But the appointment of the impartial psychiatrist did not satisfy
the Ake standard. Later, however, as the District Court
explained, Holland filed an unsuccessful state “post-trial motion
arguing that, under Ake, he was entitled to the benefit of a
presentence report, psychiatric and a medical stud[y] during the
penalty phase.” Holland, 350 F. Supp. 2d at 746 (internal
quotation marks omitted).

        The District Court believed that Holland’s Ake claim was
procedurally defaulted with respect to both the guilt and penalty
phases of the trial because, notwithstanding his post-trial motion
seeking an Ake appointment, he did not raise a claim in the state
courts that the absence of an Ake appointment denied him due
process of law. It was appropriate for the District Court to draw
this distinction between Holland seeking the expert’s
appointment and advancing his due process contention because
there is a difference between asking a court to take certain action
and asserting that its denial of the request offended constitutional
principles. Moreover, by the time Holland filed his habeas
corpus petition in this case in the District Court on January 14,
2000, the filing deadline for state court post-conviction relief
applications barred him from seeking review of his Ake claim in
those courts. In this regard 42 Pa. Cons. Stat. Ann. § 9545(b)(1)
(West 1998), which was enacted on November 17, 1995, and
became effective on January 16, 1996, provides that any petition
under the Pennsylvania Post Conviction Relief Act (“PCRA”)
“shall be filed within one year of the date the judgment becomes
final.” There was, however, a one-year grace period for cases in
which the judgment became final before the effective date of
section 9545(b)(1) during which a first PCRA petition could be
filed. See Commonwealth v. Peterkin, 722 A.2d 639, 641 (Pa.

                                 8
1999).

        The District Court held that Holland procedurally
defaulted his Ake claim on January 16, 1996, when section
9545(b) became effective, by not asserting it in the state courts
by that date. The court also observed that Holland could not file
a second petition while his first petition was pending. Holland,
150 F. Supp. 2d at 724. Moreover, inasmuch as Holland’s
convictions became final on August 15, 1988, under section
9545(b)(1) Holland had until August 15, 1989, to file a second
PCRA petition including his Ake claim, as the one-year grace
period starting January 16, 1996, applied only to first petitions,
and Holland could not meet the August 15, 1989 deadline.2
Holland, as the District Court explained his contentions, argued
in the District Court that, in light of when his convictions
became final and when a section 9545(b) petition had to be filed,
“[t]his set of circumstances . . . did not present sufficient notice
to satisfy the adequate and independent state ground requirement
of the procedural default doctrine.” Holland, 150 F. Supp. 2d at
722.

        Respondents answered that Holland could have advanced
his Ake constitutional claim in the state courts by amending his
state court post-conviction relief petition when the Legislature
adopted section 9545(b)(1) to include his omitted and altered
claims during the two-month window of opportunity between the
enactment of section 9545(b) and its effective date. Holland,
150 F. Supp. 2d at 723. Thus, in their view, the time limits on a
second PCRA petition did not matter as Holland could have
asserted his constitutional claims in an amended first petition.



         2
         We do not consider the possibility that there may have been
earlier time limitations on post-conviction relief applications in
Pennsylvania for until the Supreme Court of Pennsylvania rejected
the relaxed waiver rule in Commonwealth v. Albrecht, 720 A.2d
693 (Pa. 1998), after the adoption of section 9545(b)(1), a subject
and case that we discuss below, any such limitations would not
have precluded Holland from seeking post-conviction relief in this
capital punishment case.

                                 9
The history of the case shows that respondents’ argument
chronologically was correct because: (1) Holland filed his state
court post-conviction relief petition on October 6, 1994; (2) the
petition was pending in the state PCRA court when the
Legislature enacted section 9545(b) on November 17, 1995, and
when that section became effective on January 16, 1996; (3) the
PCRA trial court rejected the petition on September 16, 1996;
and (4) it was pending on appeal until April 1, 1999, when the
Pennsylvania Supreme Court affirmed the September 16, 1996
order rejecting the petition. Id. at 713. The District Court
accepted respondents’ argument, noting that Holland’s post-
conviction relief proceeding was “underway in state court during
the sixty-day window of opportunity between the enactment and
effective date of § 9545(b) . . . thereby making it relatively easy
for [Holland] to amend his petition within the statutory
restrictions.” Id. at 724-25. Thus, the District Court found that
Holland “had adequate opportunity to include his claims in his . .
. petition for state collateral relief.” Id. at 725.

        The parties continue to disagree as to when Holland
procedurally defaulted his opportunity to bring his Ake claim in
the state courts - Holland contending that the date was August
15, 1989, one year after his conviction became final when the
Supreme Court of the United States denied certiorari on his
direct appeal from his convictions, thus implicitly taking the
position that he had to assert the claim in a second PCRA
petition, and respondents contending, as the District Court held,
that Holland procedurally defaulted his unasserted claims when
the section 9545(b)(1) time limitations became effective on
January 16, 1996. We, however, need not linger on this point
for, as we already have indicated, a petitioner will not default a
claim in the state courts unless he does not follow a procedure
that, as we explained in Bronshtein, is “firmly established and
regularly followed.” 3 404 F.3d at 707.




       3
        It is appropriate for us to note that although we have the
benefit of Bronshtein the District Court was not so fortunate as we
decided Bronshtein after it decided Holland.

                                10
          It is clear there was not a firmly established and regularly
followed Pennsylvania procedure governing the presentation of
claims for relief from death sentences, even after section 9545(b)
became effective on January 16, 1996, and, for reasons that we
will explain, for more than 34 months thereafter which Holland
should have understood as requiring him to bring his claim in the
state courts within that 34-month period. Thus, even if Holland
could have amended his PCRA proceeding to include an Ake
claim by January 16, 1996, when section 9545(b) became
effective, the availability of that opportunity did not mean that
his failure to do so would have required a federal court to hold
that if he brought this claim later and the Pennsylvania courts
rejected it as untimely under section 9545(b)(1) the rejection
would have been based on an independent and adequate state
ground. After all, in Bronshtein we explained that even though
section 9545(b) took effect on January 16, 1996, and “appears on
its face to impose a one-year deadline in all cases except those
falling within three categories (none of which is applicable here)
. . . strict enforcement of the provision did not begin
immediately.” 404 F.3d at 708.4

        We explained in Bronshtein that starting with
Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978), the
Supreme Court of Pennsylvania applied a “relaxed waiver rule”
that a defendant did not waive a claim of constitutional error in a
capital case by failing to preserve it. 404 F.3d at 708. The
Supreme Court of Pennsylvania adhered to McKenna until
November 23, 1998, when in Commonwealth v. Albrecht, more
than 34 months after section 9545(b) became effective, it
rejected the relaxed waiver rule which it acknowledged
“virtually [had] eliminated any semblance of finality in capital
cases . . . .” 720 A.2d 693, 700 (Pa. 1998). In Albrecht the court
stated that “[t]he post-conviction appellate stage is an
appropriate time to enforce the rules of waiver.” Id. Then, one
month later on December 21, 1998, that court in Peterkin, 722
A.2d 638, held that the section 9545(b)(1) one-year time bar



       4
        None of the three exceptions to the one-year deadline is
present here either.

                                 11
applies to capital cases and the relaxed waiver rule did not
supercede it. Finally, on March 2, 1999, the court in
Commonwealth v. Banks, 726 A.2d 374, 376 (Pa. 1999), held
that the section 9545(b)(1) time limit is jurisdictional and not
subject to judicial relaxation.

        As we explained above, aside from the now expired one-
year grace period, section 9545(b)(1) requires a petitioner to file
his PCRA petition within one-year of his conviction becoming
final. Bronshtein’s conviction became final on October 20,
1997, when the Supreme Court of the United States denied
certiorari on his direct appeal from his conviction. Thus,
Bronshtein was required to file his PCRA petition by October
20, 1998, so that it would not be time-barred. Nevertheless,
inasmuch as the Supreme Court of Pennsylvania did not decide
Albrecht until November 23, 1998, we held that Bronshtein did
not default his federal claims even though he filed his state court
PCRA petition on June 9, 1999, more than one year after his
conviction became final, and after the state courts rejected it as
untimely under section 9545(b)(1). See Commonwealth v.
Bronshtein, 752 A.2d 868 (Pa. 2000). We reached our result
because the state procedural rule requiring a PCRA filing within
one year of a judgment becoming final “was not firmly
established and regularly followed at the time in question,” i.e.,
October 20, 1998, when the time for Bronshtein’s PCRA petition
under section 9545(b) expired. Bronshtein, 404 F.3d at 709.5 It
therefore followed that the state court grounds for rejecting
Bronshtein’s claims could not be an adequate basis for rejecting
his claims under the procedural default doctrine.6


       5
        As we pointed out in Bronshtein it is possible that the
unavailability of judicially created exceptions to the section
9545(b)(1) time limit did not become perfectly clear until the
Supreme Court decided Banks on March 2, 1999, but that delay did
not matter “because Bronshtein’s one-year deadline expired before
the earliest of the” opinions in Albrecht, Peterkin, and Banks.
Bronshtein, 404 F.3d at 709.
       6
        Bronshtein’s June 9, 1999 petition was the second PCRA
petition filed on his behalf. On December 3, 1997, the Center for

                                12
Legal Education, Advocacy and Defense Assistance filed a timely
PCRA petition naming Bronshtein as the petitioner but at his
request the state PCRA court dismissed the petition on January 26,
1999, and on appeal from that dismissal the Supreme Court upheld
the dismissal on April 16, 1999. Commonwealth v. Bronshtein,
729 A.2d 1102, 1108 (Pa. 1999). Accordingly, the proceedings on
the December 3, 1997 petition were pending in the PCRA court
when the Supreme Court decided Albrecht and Peterkin. Thus,
Bronshtein had an opportunity after the Supreme Court decided
Albrecht and Peterkin to pursue the timely December 3, 1997
petition brought less than two months after his conviction became
final and to seek to amend it to include any omitted claims.
Instead, he successfully sought to have the petition dismissed.
Nevertheless, we held that Bronshtein’s habeas corpus petition was
not barred on an independent and adequate state ground even
though it should have been evident to Bronshtein after the Supreme
Court decided Albrecht and Peterkin that by seeking the dismissal
of the December 3, 1997 petition, in light of those two cases and
section 9545(b)(1) he was risking losing his opportunity to bring
timely claims at the time when state law compelled him to bring
them.

       It is the circumstance that the December 3, 1997 PCRA
petition likely could have been amended after the Supreme Court
decided Albrecht on November 23, 1998, and Peterkin on
December 21, 1998, before the PCRA court dismissed the petition
on January 26, 1999, to include the federal claims that makes that
petition significant. After all, during the time that this first state
petition was pending Bronshtein, in the language of Cabrera, surely
was “on notice of how to present his claims in the state courts . . .”
and almost certainly could have done so. 175 F.3d at 313.
Therefore, we conceivably could have held in Bronshtein that the
Supreme Court decision in Bronshtein, 752 A.2d 868, rejecting
Bronshtein’s June 9, 1999 PCRA petition as untimely after the
Supreme Court decided Albrecht and Peterkin was predicated on
an adequate state ground even though the court decided those two
cases more than one year after Bronshtein’s conviction became
final. Nevertheless, we did not do so as we instead reached our

                                 13
result that Bronshtein did not procedurally default his federal
claims because the Supreme Court did not decide Albrecht until
more than one year after Bronshtein’s conviction became final and
his section 9545(b)(1) filing period had expired.

       We recognize that we did not seem to consider the possible
effect of the December 3, 1997 petition when we concluded that
Bronshtein did not default his federal claims, though we were well
aware of it. But we still think that we should not deviate from what
we did in Bronshtein and now reach the opposite result on the
theory that Holland might have been able to amend his petition
after Albrecht and Peterkin and, on that basis, hold here that the
Pennsylvania courts dismissed Holland’s claims on adequate state
grounds under the procedural default doctrine. Inasmuch as the
PCRA court dismissed Holland’s PCRA petition on the merits on
September 16, 1996, before the Supreme Court decided Albrecht,
Holland could have amended his petition in response to Albrecht
only on a remand from the Supreme Court to the PCRA court
pursuant to Pa. R. App. P. 123 and 2501 so that he could have
sought to file the amendment in that court. See Commonwealth v.
Abu-Jamal, 833 A.2d 719, 722 n.1 (Pa. 2003). In adhering to the
Bronshtein approach, we recognize that if Holland had been able
to amend his petition after Albrecht the amendment would have
related back to when he filed his petition on October 6, 1994. See
Pa. R. Crim. P. 905(a); Commonwealth v. Flanagan, 854 A.2d 489,
499-500 (Pa. 2004); Commonwealth v. Padden, 783 A.2d 299,
308-09 (Pa. Super. Ct. 2001) (permitting petitioner to amend his
timely petition to include new claims that were not raised within
one year of petitioner’s judgment of sentence becoming final).
Rather, we follow the Bronshtein approach notwithstanding the
possibility that Holland could have amended his PCRA petition
after Albrecht, because we cannot distinguish in considering
whether the state courts rejected the petitioner’s claims on adequate
state grounds between Holland’s timely October 6, 1994 petition
filed before the enactment of section 9545(b) which was pending
at the time of the section’s enactment and the timely section
9545(b) petition filed on Bronshtein’s behalf after the enactment of
section 9545(b). In any event, the possibility that Holland might

                                 14
        It might be thought that in our case inasmuch as
Holland’s convictions became final many years before the
petitioner’s conviction in Bronshtein became final the
inadequacy of Holland’s state court remedies is even more
apparent than the inadequacy of the petitioner’s remedies in
Bronshtein. Moreover, as we noted in Bronshstein, 404 F.3d at
709-10, the Supreme Court of Pennsylvania did not adopt a
transitional rule preserving claims from extinction after it
abolished the relaxed waiver rule in Albrecht and thus Holland,
like Bronshtein, did not have the advantage of a grace period to
file his PCRA petition after the court released its opinion in
Albrecht.7 But because Holland, unlike Bronshtein, filed his
PCRA petition before the adoption of the section 9545(b)(1)
time limitation and his petition was pending in the PCRA trial
court both when the Legislature adopted that section and when it
became effective two months later, there is a circumstance here
from which it could be concluded that Holland received notice to
advance his constitutional claims in a timely way that Bronshtein
did not have so that we should reach a different result here than




have been able to secure a remand of his PCRA appeal to the
PCRA court and then secure an amendment of his petition in that
court surely does not somehow mean that the PCRA court when it
dismissed Holland’s petition before Albrecht acted on the basis of
firmly established and regularly followed state grounds.
       7
         In a similar situation Pennsylvania provided with respect to
first PCRA petitions in cases of final judgments before the
effective date of section 9545(b)(1) that a petition filed within one
year of the effective date is deemed timely. See Peterkin, 722 A.2d
at 641. Likewise, in a comparable situation we, along with other
courts of appeals, adopted a transitional rule when Congress
enacted the AEDPA in 1996 so as to preserve claims from
immediate extinction by the statute’s time rules during a one-year
grace period after its enactment. See, e.g., McAleese v. Brennan,
483 F.3d 206, 212 (3d Cir. 2007).

                                 15
that we reached in Bronshtein.8

        The District Court believed that the circumstance that
Holland’s PCRA petition was pending in the PCRA court when
section 9545(b)(1) was enacted and became effective was
particularly important because of a colloquy at a PCRA hearing
on December 14, 1995, held after the Legislature enacted section
9545(b) but before it became effective, i.e., during the period of
the window of opportunity to file a PCRA petition. The District
Court indicated that at the hearing the PCRA court brought the
need for Holland to assert his federal claims at that time to his
attention. Thus, the District Court explained that “the trial court
[in the PCRA proceedings] brought this issue squarely to
[Holland’s] attention when [the court] asked [Holland] during
his initial PCRA hearings if he had anything else he would like
to present and explained to [him] that this opportunity may be
[Holland’s] last to raise further issues in a collateral
proceeding.” Holland, 150 F. Supp. 2d at 725. The District
Court then stated that “[t]his warning was couched in terms
which any lay person could not fail to understand.” Id.
We, however, have examined the PCRA proceedings and
disagree with the District Court’s understanding of them. In the
PCRA proceedings Holland rejected his attorney’s advice to
testify and, instead, voluntarily decided not to do so. At that
point the PCRA court told him that “I certainly can’t force you to
get on the stand, or force you to testify, even though it is
probably to your benefit to do so.” App. at 1170. Holland
answered the court by saying “You’re right” to which the court
responded “You understand that this very well may be your very
last opportunity in life to do that?” Id. We think that, contrary
to what the District Court believed, this colloquy did not caution
Holland that at that time he may have had his last opportunity “to
raise further issues in a collateral proceeding.” Holland, 150 F.
Supp. 2d at 725. In fact, the PCRA court in the colloquy did not
even mention the already enacted section 9545(b) time



       8
       Even the December 3, 1997 PCRA petition filed on
Bronshtein’s behalf was filed after the effective date of section
9545(b). See supra note 6.

                                  16
limitations. The PCRA court merely told Holland that at that
moment he might have his last chance to testify, a warning that
surely would have been understood to relate to Holland’s
pending claims which did not include an Ake due process of law
constitutional claim.

       In the circumstances this case is distinguishable from
Cabrera, a case arising from New Jersey in which on direct
appeal following a conviction the Appellate Division of the
Superior Court remanded the case to the trial court to give the
defendant an opportunity to withdraw his guilty plea. In
remanding the case the Appellate Division provided that in the
remand proceedings there could be “such further action as the
parties and court find appropriate.” Cabrera, 75 F.3d at 308-09
(quotation marks omitted). On the remand the trial court asked
Cabrera, who later became the federal court petitioner, if there
was anything else he wanted to say but Cabrera declined the
opportunity to do so. Accordingly, it was clear that the state trial
court gave Cabrera an opportunity to raise additional issues.

        Subsequently, Cabrera filed a petition in the state courts
seeking post-conviction relief on the ground of ineffectiveness
of counsel. Although ordinarily in New Jersey a defendant need
not raise an ineffectiveness claim on direct appeal, the court in
the post-conviction relief proceeding rejected the claim on the
ground that Cabrera passed up his opportunity to raise the claim
on the remand following his direct appeal. In Cabrera’s
subsequent habeas corpus proceedings we found his
ineffectiveness claim to be procedurally defaulted for the same
reason. In reaching our conclusion we pointed out that Cabrera
was represented by a new attorney on the remand in place of the
allegedly ineffective attorney, the state trial court on the remand
asked Cabrera if there was “anything” he wanted to raise, and
“Cabrera and his attorney did not have to rely on an intricate
analysis of state law to determine whether they could advance
the ineffective assistance of counsel claims at the remand
hearing . . . as [those claims] certainly came within the wide
open category of ‘anything.’” Cabrera, 175 F.3d at 313.

       But Holland is not Cabrera. Cabrera was given an

                                17
opportunity to raise “anything,” not merely to testify. Moreover,
in Cabrera the ineffective assistance of counsel claim was related
directly to Cabrera’s application to withdraw his guilty plea.
Thus, though respondents in these proceedings correctly quote
Cabrera for the point 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,” Cabrera, 175 F.3d at 313, the inference they draw from
this language, i.e. that the PCRA trial court’s warnings to
Holland concerning his opportunity to testify was sufficient
notice, is unjustified. See Appellees’ rep. br. at 22.

        In any event, even if the PCRA trial court explicitly had
warned Holland on December 14, 1995, that he had to raise all
of his possible issues and made it clear that it would permit him
to do so we could not conclude that Holland’s unasserted federal
claims were procedurally barred. The opportunity to raise issues
would not have been a mandate to do so for, as we indicated
above, when the state PCRA court gave its warnings on
December 14, 1995, the Pennsylvania Supreme Court had not
yet rejected the relaxed waiver rule as it did not decide Albrecht
until November 23, 1998. Thus, at the time of the trial court
PCRA proceedings on December 14, 1995, a definitive warning
that issues unless raised then would have been abandoned in the
state courts would have been misleading. In sum, therefore, we
conclude that the procedural default doctrine did not preclude
Holland from presenting any of his federal claims in the District
Court or from doing so here.

       (b) The Disposition of this Appeal

        Where then does our conclusion that none of Holland’s
claims are procedurally defaulted take us? Actually we arrive at
the same place as the District Court, the denial of relief with
respect to the guilt phase of the proceedings and the grant of
relief with respect to the penalty phase. Thus, we will affirm the
order of the District Court reaching that result in all respects.

      We will reverse the logical order of discussion and
address the penalty phase of Holland’s trial first. As we have

                                18
explained, the District Court concluded that Holland’s Ake claim
was procedurally defaulted but it excused the default through
application of the cause and prejudice doctrine that became
implicated in the case by reason of the ineffectiveness of his
attorney in failing to raise the Ake issue on direct appeal. The
District Court then granted relief that would permit but not
compel a new penalty trial at which the Commonwealth again
could seek the death penalty. Certainly if the District Court was
correct that even assuming that Holland procedurally defaulted
the claim he was entitled to a new penalty proceeding based on
the merits of his assertions under Ake, it would have held that in
the absence of the procedural default he would have been
entitled to such relief. In any event, exercising plenary review,
we conclude that Holland is entitled to penalty phase relief on
the Ake claim essentially for the reasons the District Court
stated. Our conclusion renders Holland’s remaining penalty
phase arguments moot as he can receive no relief beyond that
which he is receiving with respect to the penalty as we cannot
discern any reason why if we accepted any of these arguments
the Commonwealth would be precluded from seeking the death
penalty at a new penalty proceeding.

        With respect to the guilt phase we first deal with Ake.
The District Court found that Holland’s Ake claim was
procedurally barred and that the procedural default could not be
excused so as to allow him to assert his guilt phase Ake claims
in the habeas corpus proceeding because Holland did not
demonstrate that he suffered actual prejudice at the guilt phase
of the trial by reason of the absence of an Ake expert. Thus,
though we reject the District Court’s procedural default
conclusion because we hold that the state procedures and
proceedings on which it relied on are not adequate to bar his Ake
claim, still Holland cannot obtain relief under Ake from the guilt
phase of the trial unless the state trial court prejudiced him by
not making a pretrial Ake appointment. Of course, we only
could reach that conclusion by rejecting the District Court’s
conclusions on the prejudice issue. In considering this issue it is
important in this regard to recognize that Holland’s Ake claim is
tenable only when combined with his ineffective assistance of
counsel claim with respect to the guilt phase of the trial as

                                19
Holland did not make a motion seeking an Ake appointment
until after the trial. Holland seems to recognize this point for in
his brief he meshes his Ake and ineffective assistance of counsel
claims with the following explanation:

              For these reasons, and as the District Court
       found, the due process right to proper expert
       assistance and the Sixth Amendment right to
       effective assistance of counsel were violated when
       the court failed to appoint a defense expert,
       counsel failed to demand a defense expert, the
       neutral expert did not address any of [Holland’s]
       potential mental health defenses at guilt -or
       penalty-phase, and counsel made no effort to
       ascertain what mental health defenses . . . would be
       reasonably available.

Appellant’s br. at 49 (internal quotation marks omitted).
Moreover, in his brief Holland explains that before his trial his
attorney filed a notice of mental infirmity defense and
successfully moved for a court-appointed psychiatrist and, rather
than seeking a defense expert, accepted the appointment of an
“independent” “neutral” psychiatrist. Id.

        Under Strickland v. Washington a petitioner claiming
relief on the basis of ineffective assistance of counsel must show
that his counsel’s representation of him fell below an objective
standard of reasonableness and that the deficient performance
prejudiced his defense. 466 U.S. 668, 688, 693, 104 S.Ct. 2052,
2064, 2067 (1984). To establish that there had been prejudice a
petitioner must demonstrate that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694,
104 S.Ct. at 2068. A reasonable probability is “sufficient to
undermine confidence in the outcome.” Id. As the District
Court observed, “[t]he prejudice standard applied in the
ineffective assistance context is nearly identical to the actual
prejudice standard for excusing a procedural default articulated
in Coleman.” Holland, 150 F. Supp. 2d at 727. Consequently,
the District Court concluded that it could “rely on any findings

                                20
of prejudice within [its] ineffectiveness inquiry to satisfy any
claims of actual prejudice to [Holland in a cause and effect
inquiry].” Id.

        Overall, again exercising plenary review, we are
convinced that Holland was not prejudiced at the guilt phase of
the trial by the absence of an Ake mental health expert
appointment and that even if the state trial court had made that
appointment the result at the guilt phase of the trial surely would
not have been different. Thus, Holland cannot obtain relief by a
combination of ineffective assistance of counsel and Ake claims.

        Furthermore, even if we eliminate the need for Holland to
make an ineffective assistance of counsel showing to support his
Ake claim our result would not be different. To start with, as the
District Court pointed out, Holland did not “request[ ] [an Ake]
defense expert during the guilt phase of his state murder trial
[and] [h]is post-trial motion argued only that he needed a court-
appointed mental health expert for assistance in developing
mitigation evidence at the penalty phase.” Holland, 150 F. Supp.
2d at 755. Consequently, the court held that he did not have a
“remedial claim” by reason of the lack of that appointment and
he is not “entitled to it under the circumstances.” Id. We agree
as the trial court made the appointment that Holland sought, an
impartial psychiatrist, and to use Holland’s own word,
“accepted.” Appellant’s br. at 4. See Clisby v. Jones, 960 F.2d
925, 934 n.12 (11th Cir. 1992) (“We have held that Ake does not
impose upon the trial court a duty sua sponte to appoint a
psychiatrist.”). Moreover, just as we are satisfied that for
purposes of an ineffective assistance of counsel claim Holland
was not prejudiced at the guilt phase of the trial by the absence
of an Ake appointment, we are satisfied that for due process of
law purposes the absence of such an appointment did not
prejudice Holland.

       The final matter that we must consider is the effect of our
conclusion that Holland’s federal claims arising from the guilt
phase of his trial beyond his Ake claim, even if not raised in the
state courts, were not procedurally barred. As we indicated at
the outset of this opinion, we conclude that all of these claims, as

                                 21
well as the claims that Holland did raise, are without merit to the
end that he is not entitled to relief on the basis of those claims
separately or in conjunction with each other.




                       IV. CONCLUSION

       For the foregoing reasons we will affirm the order of
April 25, 2001.




                                22
