                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-1-2009

Thomas v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 05-9008




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                                       PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
               ______________________

                Nos. 05-9006 & 05-9008
               ______________________

                    BRIAN THOMAS,

                          Appellant in No. 05-9006

                             v.

MARTIN HORN, Commissioner, Pennsylvania Department
of Corrections; DONALD T. VAUGHN, Superintendent of
the State Correctional Institution at Graterford; JOSEPH P.
MAZURKIEWICZ, Superintendent of the State Correctional
Institution at Rockview; THE DISTRICT ATTORNEY OF
                PHILADELPHIA COUNTY

                          Appellants in No. 05-9008




      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                District Court No. 00-cv-803
       District Judge: The Honorable Louis H. Pollak
                    Argued May 1, 2009

Before: MCKEE, SMITH, and STAPLETON, Circuit Judges

                    (Filed: July 1, 2009)

Maureen Kearney Rowley
Billy H. Nolas (Argued)
Victor Abreu
David Wycoff
Federal Community Defender Office for the Eastern District
of Pennsylvania
Suite 545 West—The Curtis Building
601 Walnut Street
Philadelphia, PA 19106
              Attorneys for Brian Thomas

David Curtis Glebe (Argued)
Thomas W. Dolgenos
Ronald Eisenberg
Arnold H. Gordon
Lynne Abraham
Robert M. Falin
Three South Penn Square
Philadelphia, PA 19107
              Attorneys for Martin Horn, Donald Vaughn,
              Joseph Mazurkiewicz, and the District Attorney
              of Philadelphia County




                             2
                            OPINION


SMITH, Circuit Judge.

       In 1986, Brian Thomas was convicted in the Court of
Common Pleas of Philadelphia of murder in the first degree,
burglary, involuntary deviate sexual intercourse, and rape. The
jury sentenced him to death. Thomas was unsuccessful on direct
appeal, see Commonwealth v. Thomas, 561 A.2d 699 (Pa. 1989)
(hereinafter “Thomas I”), and in his state court petition for post-
conviction relief, see Commonwealth v. Thomas, 744 A.2d 713
(Pa. 2000) (hereinafter “Thomas II”). Thomas then petitioned
the District Court for habeas relief pursuant to 28 U.S.C. § 2254.
Thomas v. Beard, 388 F. Supp. 2d 489 (E.D. Pa. 2005)
(hereinafter “Thomas III”). The District Court granted Thomas
sentencing relief based on his trial counsel’s ineffectiveness, but
denied his guilt-phase claims. Id. at 536. Both Thomas and the
Commonwealth1 appealed. For the reasons that follow, we will
affirm the District Court’s guilt-phase determinations, but will
vacate the District Court’s order for sentencing relief, and


       1
        We refer to Martin Horn, Donald Vaughn, Joseph
Mazurkiewicz, and the District Attorney of Philadelphia County
collectively as the “Commonwealth.”

                                3
remand for an evidentiary hearing concerning the extent, if any,
of trial counsel’s pre-sentencing investigative efforts to obtain
mitigation evidence.

                                I.

       On August 9, 1985, one of Linda Johnson’s roommates
walked into their Philadelphia apartment and found Johnson’s
dead body lying face-down on a broken box-spring in her room.
Johnson’s eyes and face were swollen, and her nose and right
temple were bleeding. She had a bite mark on her cheek and
bruises on her arms and thighs. She was naked from the waist
down, and blood was seeping from her vagina and rectum. A
blood-encrusted crutch was found near her body. It was also
determined that a television set and a can containing about
twenty-nine dollars in change were missing from the apartment.

         An autopsy of Johnson revealed that she had three
fractured ribs and a twenty-three inch tear inside her body that
reached from her vagina to her chest cavity. A shirt also had
been inserted into her rectum, through her intestinal wall, and
into her abdominal cavity with a blunt instrument while she was
still alive. Additionally, sperm was found inside her vagina.

        Three days after the discovery of Johnson’s body, the
Commonwealth arrested Thomas for her rape and murder, and
for burglarizing her apartment. At trial, three witnesses testified
that they had seen Thomas and Johnson together at or near her

                                4
apartment within hours of the discovery of her body. The
Commonwealth also introduced medical evidence that: the
sperm found in Johnson’s vagina was deposited around the time
that Thomas and Johnson were last seen together; the sperm was
deposited by a non-secretor (one who does not secrete traces of
blood in bodily emissions); Thomas was a non-secretor; blood
found on Thomas’ boxer shorts was human blood; and the bite
mark on Johnson’s cheek matched Thomas’ teeth. Finally, the
Commonwealth introduced evidence that Thomas was in
possession of both the missing television and the twenty-nine
dollars in change.

       On February 6, 1986, the jury found Thomas guilty of
murder in the first degree, rape, involuntary deviate sexual
intercourse, and burglary. During the penalty phase, which
began later that day, the Commonwealth offered evidence of
three aggravating circumstances to support its request for the
death penalty: 1) killing while perpetrating another felony,
namely rape; 2) killing by means of torture; and 3) a significant
history of violent felony convictions. See 42 Pa. Cons. Stat. §
9711(d)(6), (8), (9). The Commonwealth relied on trial
evidence already presented to establish the first two aggravating
circumstances. To establish the third, the Commonwealth
offered evidence of Thomas’ 1978 conviction for felonious
aggravated assault and indecent assault on a three-year old,
which caused injuries to the child’s rectum and intestines, and
Thomas’ 1984 conviction for criminal trespass where Thomas
unlawfully entered a neighbor’s bedroom while she was

                               5
sleeping.

       At the close of the Commonwealth’s penalty-phase
evidence, Thomas’ court-appointed counsel informed the court
that Thomas would not be presenting any mitigating evidence.
The court determined that Thomas should be colloquied
regarding the decision to present no mitigating evidence. After
this colloquy, Thomas, through his counsel, declined the
Commonwealth’s offer to stipulate to his age and to the fact that
he graduated from high school. As a result, Thomas presented
no evidence of mitigating circumstances during the penalty
phase. Nonetheless, in its penalty-phase charge to the jury, the
court recited all the mitigating circumstances listed in
Pennsylvania’s sentencing statute for first-degree murder, 42 Pa.
Cons. Stat. § 9711(e), and told the jury that “you may consider
anything as a mitigating circumstance.”

        The jury found the three proposed aggravating
circumstances and no mitigating circumstances. Accordingly,
Thomas was sentenced to death on the first-degree murder
conviction and to consecutive terms of imprisonment of up to
fifty years for the burglary, rape, and involuntary deviate sexual
intercourse convictions.

       Thomas, represented by new court-appointed appellate
counsel, unsuccessfully challenged his conviction and sentence
on direct appeal to the Pennsylvania Supreme Court. Thomas I,
561 A.2d at 710. His subsequent petition for relief under

                                6
Pennsylvania’s Post-Conviction Relief Act, 42 Pa. Cons. Stat.
§ 9541 et. seq. (hereinafter “PCRA”), was also denied. Thomas
II, 744 A.2d at 717. Thomas then petitioned the District Court
for habeas relief pursuant to 28 U.S.C. § 2254, raising twenty-
three grounds for relief. Thomas III, 388 F. Supp. 2d at 495–96
& n.1. The District Court denied Thomas’ petition as to his
guilt-phase claims. Id. at 536. The District Court, however,
determined that Thomas’ trial counsel was ineffective at
sentencing under Strickland v. Washington, 466 U.S. 668
(1984), because counsel failed to investigate and present
mitigating evidence of Thomas’ mental health. Thomas III, 388
F. Supp. 2d at 505–11. The District Court also determined that
Thomas did not knowingly and intelligently waive his right to
present mitigating evidence because the nature of the
proceedings were not adequately explained to him, so the
purported waiver could not cure the prejudice resulting from
counsel’s deficiencies. Id. at 513–16.2 Accordingly, the District



       2
        The District Court also determined that counsel’s
“incoherent” closing argument at sentencing exacerbated the
prejudice caused by counsel’s other deficient performances.
Thomas III, 388 F. Supp. 2d at 511–513. Although we agree
with the District Court that “counsel’s closing was, at best,
incoherent and, at worst, in the service of the prosecution’s
contention that the jury should select death rather than life
imprisonment” and that “[c]ounsel wholly failed in his duty to
present a closing argument helpful to Thomas,” id. at 513, it
does not appear that Thomas raised these claims in his habeas

                               7
Court vacated Thomas’ death sentence. Id. at 536.3

       Thomas filed a timely appeal, and the District Court
issued a certificate of appealability for three of Thomas’ claims.
The Commonwealth filed a cross-appeal alleging that the
District Court’s decision to vacate Thomas’ sentence was in
error.

                               II.

       The District Court had jurisdiction under 28 U.S.C. §§
2241 and 2254, and we have jurisdiction under 28 U.S.C. §§
1291 and 2253. Since the District Court ruled on Thomas’
habeas petition without an evidentiary hearing, our review of its
decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50
(3d Cir. 2002). This means that we review the state courts’
determinations under the same standard that the District Court
was required to apply. Id.



petition, see id. at 495–96, 498. Therefore, we will not address
counsel’s closing argument in our review.
       3
        In light of its decision to vacate Thomas’ sentence on
the basis of Thomas’ Strickland claim, the District Court
dismissed, without prejudice, two of Thomas’ other claims: per
se ineffective assistance of counsel under United States v.
Cronic, 466 U.S. 648 (1984), and jury bias at sentencing. 388
F. Supp. 2d at 516, 528–30.

                                8
       Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), “federal courts are to review a state court’s
determinations on the merits only to ascertain whether the state
court reached a decision that was ‘contrary to’ or involved an
‘unreasonable application’ of clearly established Supreme Court
law, or if a decision was based on an ‘unreasonable
determination’ of the facts in light of the evidence presented.”
Fahy v. Horn, 516 F.3d 169, 189 n.20 (3d Cir. 2008). But when
“the state court has not reached the merits of a claim thereafter
presented to a federal habeas court, the deferential standards
provided by AEDPA . . . do not apply.” Appel v. Horn, 250 F.3d
203, 210 (3d Cir. 2001). “In such an instance, the federal
habeas court must conduct a de novo review over pure legal
questions and mixed questions of law and fact, as a court would
have done prior to the enactment of AEDPA.” Id. A state
court’s factual determinations, however, “are still presumed to
be correct, rebuttable upon a showing of clear and convincing
evidence.” Id.

                              III.

        We will first address the three claims before us on
Thomas’ appeal: 1) the trial court’s “reasonable doubt”
instruction to the jury was unconstitutional; 2) the
Commonwealth’s closing argument at sentencing was
unconstitutional, and Thomas’ counsel was ineffective for not
objecting to it; and 3) Thomas’ counsel was ineffective for
failing to life-qualify the jury.

                               9
                              A.

       At the outset, the parties contest whether AEDPA
deference pursuant to Section 2254(d) applies to Thomas’
claims. Section 2254(d) “applies only to claims already
‘adjudicated on the merits in State court proceedings.’” Appel,
250 F.3d at 210 (quoting 28 U.S.C. § 2254(d)). Here, the PCRA
court ruled on the merits of two of Thomas’ claims—his closing
argument and life-qualification claims—but did not address the
third—his objection to the reasonable doubt instruction. On
appeal, the Pennsylvania Supreme Court dismissed all three
claims as waived because they were not raised in Thomas’
amended PCRA petition. See Thomas II, 744 A.2d at 715 n.4.
The Commonwealth argues that the PCRA court’s decision on
the merits is an “adjudicat[ion] on the merits in State court
proceedings,” which renders Section 2254(d) applicable to two
of Thomas’ claims. Thomas, however, contends that the
Pennsylvania Supreme Court’s determination supercedes the
PCRA court’s decision for the purposes of determining whether
AEDPA deference is due. Accordingly, we must decide
whether a claim has been “adjudicated on the merits in State
court proceedings” when a lower state court decided the claim
on its merits, but the reviewing state court resolved the claim
entirely on procedural grounds.

      The Second Circuit has provided a textual analysis of
“adjudicated on the merits” as used in Section 2254(d):



                              10
      When Congress uses a term of art such as
      “adjudicated on the merits,” we presume that it
      speaks consistently with the commonly
      understood meaning of this term. See [Walters v.
      Metro. Educ. Enters., Inc., 519 U.S. 202, 207
      (1997)]. “Adjudicated on the merits” has a well
      settled meaning: a decision finally resolving the
      parties’ claims, with res judicata effect, that is
      based on the substance of the claim advanced,
      rather than on a procedural, or other, ground. See
      e.g., Semtek Int’l, Inc. v. Lockheed Martin Corp.,
      531 U.S. 497. . . (2001) (noting one definition of
      an “on the merits” adjudication as “one that
      actually passes directly on the substance of a
      particular claim before the court”) (internal
      quotation marks and alterations omitted). See
      also, e.g., Black’s Law Dictionary 42 (7th ed.
      1999) (adjudication: “1. The legal process of
      resolving a dispute; the process of judicially
      deciding a case. 2. Judgment.”; adjudicate: “1. To
      rule upon judicially. 2. Adjudge.”); Webster’s
      Third New Int’l Dictionary 27 (1993) (adjudicate:
      “to settle finally (the rights and duties of the
      parties to a court case) on the merits of issues
      raised; enter on the records of a court (a final
      judgment, order, or decree of sentence)”).

Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). In
Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004), rev’d on other
grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005), we


                             11
quoted with approval the Second Circuit’s interpretation of
“adjudicated on the merits.” Id. at 247 (quoting Sellan, 261 F.3d
at 311). Other courts of appeals have done so as well. See Teti
v. Bender, 507 F.3d 50, 56–57 (1st Cir. 2007); Lambert v.
Blodgett, 393 F.3d 943, 969 (9th Cir. 2004); see also Muth v.
Frank, 412 F.3d 808, 815 (7th Cir. 2005); Schoenberger v.
Russell, 290 F.3d 831, 840 (6th Cir. 2002) (Keith, J.,
concurring).

        We reiterate today our approval of the Second Circuit’s
interpretation of “adjudicated on the merits.” For the purposes
of Section 2254(d), a claim has been “adjudicated on the merits
in State court proceedings” when a state court has made a
decision that 1) finally resolves the claim, and 2) resolves the
claim on the basis of its substance, rather than on a procedural,
or other, ground. See Rompilla, 355 F.3d at 247 (quoting Sellan,
261 F.3d at 311); see also Lambert, 393 F.3d at 969 (“[A] state
has ‘adjudicated’ a petitioner’s constitutional claim ‘on the
merits’ for purposes of § 2254(d) when it has decided the
petitioner’s right to post conviction relief on the basis of the
substance of the constitutional claim advanced, rather than
denying the claim on the basis of a procedural or other rule
precluding state court review of the merits.”); Sellan, 261 F.3d
at 312 (“For the purposes of AEDPA deference, a state court
‘adjudicate[s]’ a state prisoner’s federal claim on the merits
when it (1) disposes of the claim ‘on the merits,’ and (2) reduces
its disposition to judgment.”).



                               12
        We agree with the Commonwealth that an “adjudication
on the merits” can occur at any level of state court. Unlike other
statutes that address federal review of state court decisions, the
plain language of Section 2254(d) does not specify that the
“adjudication on the merits” be from any particular state court.
Compare 28 U.S.C. § 2254(d) with 28 U.S.C. § 1257(a) (“Final
judgments or decrees rendered by the highest court of a State in
which a decision could be had, may be reviewed by the Supreme
Court by writ of certiorari . . . .” (emphasis added)). But to
qualify as an “adjudication on the merits,” the state court
decision must finally resolve the claim. This means that the
state court’s resolution of the claim must have preclusive effect.
See Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311).

        Applying this rule to the state court decisions here, we
see no “adjudication on the merits.” Here, the Pennsylvania
Supreme Court decided Thomas’ claims on purely procedural,
not substantive, grounds. This decision stripped the PCRA
court’s substantive determination of Thomas’ claims of
preclusive effect. See Restatement (Second) of Judgments § 27
cmt. o (1982) (“If the judgment of the court of first instance was
based on a determination of two issues, either of which standing
independently would be sufficient to support the result . . . [and]
[i]f the appellate court upholds one of these determinations as
sufficient and refuses to consider whether or not the other is
sufficient and accordingly affirms the judgment, the judgment
is conclusive as to the first determination.”); 18A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal

                                13
Practice and Procedure § 4432 (2d ed. 2002) (“If the appellate
court terminates the case by final rulings as to some matters
only, preclusion is limited to the matters actually resolved by the
appellate court . . . .”); see also, e.g., Sunrise Corp. of Myrtle
Beach v. City of Myrtle Beach, 420 F.3d 322, 327–28 (4th Cir.
2005) (holding that, although the trial court reversed an
administrative determination on, inter alia, Constitutional
grounds, res judicata did not apply to the Constitutional claims
because the appellate court affirmed the trial court’s decision
without reaching the Constitutional issues). The Pennsylvania
Supreme Court’s procedure-based decision remains as the only
resolution of Thomas’ claims with preclusive effect.
Accordingly, there has been no “adjudication on the merits,” and
AEDPA deference is not due. See also Liegakos v. Cooke, 106
F.3d 1381, 1385 (7th Cir. 1997) (noting that Section 2254(d) did
not apply to claims decided on the merits in state trial court, but
disposed of on procedural grounds in the state court of appeals
because “the disposition of the last state court to issue an
opinion determines whether the state has invoked a ground of
forfeiture” (citing Ylst v. Nunnemaker, 501 U.S. 797 (1991))).

        The Commonwealth argues that the result we reach today
is contrary to our decision in Nara v. Frank, 488 F.3d 187 (3d
Cir. 2007). It is not. In Nara, the lower state court decided the
merits of the petitioner’s incompetency claim and the appellate
court subsequently reversed this decision on procedural grounds.
Id. at 191–92. Nonetheless, we remarked that the lower state
court “plainly did reach the merits of Nara’s incompetency claim

                                14
. . . .” Id. at 201. This statement, however, was not directed at
any Section 2254(d) analysis; it was made in the context of
determining whether the District Court correctly accorded a
presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1)
to the factual determinations of the lower state court. Id. at 200.
As we pointed out, “the § 2254(e)(1) presumption of correctness
applies regardless of whether there has been an ‘adjudication on
the merits’ for purposes of § 2254(d).” Id. at 200–01. As a
result, the Nara panel made no ruling on whether the lower
court’s decision on the merits was an “adjudication on the
merits” for the purposes of Section 2254(d). Indeed, we
described the lower court as having “reach[ed],” rather than
adjudicated, the merits of Nara’s claim.

       Fahy v. Horn is also consistent with our decision in this
case. In Fahy, we applied AEDPA deference to a lower court’s
decision on the merits even though a state appellate court
dismissed the petitioner’s subsequent appeal as waived. 516
F.3d at 197, 199, 202–03. The unique facts of that case,
however, warranted such a disposition. In Fahy, while his
appeal of the lower court’s decision on the merits was pending,
the petitioner filed a motion to “withdraw his appeal and to
waive all collateral proceedings so that his death sentence could
be carried out.” Id. at 177. The appellate court remanded the
appeal to the lower court “for a colloquy to determine whether
petitioner fully understands the consequences of his request to
withdraw his appeal and to waive all collateral proceedings.”
Id. After conducting the colloquy, the lower court determined

                                15
that the petitioner’s withdrawal and waiver decisions were made
knowingly and voluntarily, and the petitioner appealed. Id. at
178; see also Commonwealth v. Fahy, 700 A.2d 1256, 1258–59
(Pa. 1997). The appellate court affirmed the validity of the
petitioner’s withdrawal and waiver, and dismissed the appeal.
516 F.3d at 178; 700 A.2d at 1259–60.

        On federal habeas review, we acknowledged that “the
state supreme court never reached the merits of [petitioner’s]
petition because of his waiver, [but] we believe that deference
still applies to the [lower state] court’s decision.” 516 F.3d at
203 n.36. We arrived at that conclusion because after the
appellate court affirmed the validity of the petitioner’s
withdrawal and waiver, the lower court’s decision on the merits
was the decision that finally resolved the claims. See Angel v.
Bullington, 330 U.S. 183, 189 (1947) (“If a litigant chooses not
to continue to assert his rights after an intermediate tribunal has
decided against him, he has concluded his litigation as
effectively as though he had proceeded through the highest
tribunal available to him.”). Therefore, the lower court’s
decision was an “adjudication on the merits” that warranted
AEDPA deference.

      In sum, for the purposes of Section 2254(d), a claim has
been “adjudicated on the merits in State court proceedings”
when a state court has made a decision that finally resolves the
claim based on its substance, not on a procedural, or other,
ground. Here, neither the Pennsylvania Supreme Court nor the

                                16
PCRA court “adjudicated on the merits” the three claims before
us on Thomas’ appeal. Accordingly, we will review purely legal
questions and mixed questions of law and fact de novo, but
presume the correctness of any factual conclusions made by the
state courts. See Appel, 250 F.3d at 210.

                               B.

       Having decided the appropriate standard of review, we
will move to the merits of the claims at issue in Thomas’
appeal.4


       4
        Notwithstanding the Pennsylvania Supreme Court’s
decision to dismiss them on procedural grounds, Thomas has
exhausted all three claims before us on his appeal. See Holland
v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (“[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.”).
       Additionally, there is no procedural bar on federal habeas
review. Since Thomas filed his PCRA petition before the
Pennsylvania Supreme Court abandoned its “relaxed waiver”
doctrine for capital cases in Commonwealth v. Albrecht, 720
A.2d 693 (Pa. 1998), the Pennsylvania Supreme Court’s
dismissal of Thomas’ claims as waived “is not adequate to
support the judgment for the purpose of finding a procedural
default under federal habeas law.” Jacobs v. Horn, 395 F.3d
92, 117–18 (3d Cir. 2005). The Commonwealth does not
contest this point, but does preserve it for potential en banc or

                               17
                                 1.

        Thomas’ first claim is that the trial court’s instruction on
the definition of reasonable doubt violated due process because
it suggested a higher degree of doubt than is required for
acquittal under the reasonable doubt standard. Here, the trial
court instructed the jury that a reasonable doubt is “such a doubt
as would cause a reasonable person to restrain from acting in a
matter of great importance in his or her own life.” Thomas
argues that the words “restrain from acting” set the
Commonwealth’s burden of proof too low.

        “The requirement that guilt of a criminal charge be
established by proof beyond a reasonable doubt dates at least
from our early years as a Nation.” In re Winship, 397 U.S. 358,
361 (1970). Trial courts are free to provide juries with a
definition for reasonable doubt. Victor v. Nebraska, 511 U.S. 1,
5 (1994). Further, “so long as the court instructs the jury on the
necessity that the defendant’s guilt be proved beyond a



Supreme Court review.
       Finally, we reject the Commonwealth’s suggestion to
frame all of Thomas’ claims as challenges to counsel’s
effectiveness, including those that assert trial errors. Our
practice is to entertain the merits of the claims advanced. See,
e.g., Fahy, 516 F.3d at 189 (“Because there are no procedural
barriers to our exercise of jurisdiction, we proceed to the merits
of Fahy’s habeas petition.”).

                                18
reasonable doubt, the Constitution does not require that any
particular form of words be used in advising the jury of the
government’s burden of proof.” Id. (internal citations omitted).
Our task on review is to determine “whether there is a
reasonable likelihood that the jury understood the instructions to
allow conviction based on proof insufficient to meet” the
reasonable doubt standard. See id. at 6 (citing Estelle v.
McGuire, 502 U.S. 62, 72 & n.4 (1991)).

       The Pennsylvania Supreme Court has a long history of
approving and recommending the “restrain from acting”
formulation that the trial court used here to define reasonable
doubt. In 1954, the Court included this formulation in its
“standard and approved form of charge”: a reasonable doubt
“must be an honest doubt arising out of the evidence itself, the
kind of a doubt that would restrain a reasonable man (or woman)
from acting in a matter of importance to himself (or herself).”
Commonwealth v. Donough, 103 A.2d 694, 697 (Pa. 1954).
Since then, the Court has affirmed the use of the “restrain from
acting” formulation on many occasions.                See, e.g.,
Commonwealth v. Marshall, 810 A.2d 1211, 1225 (Pa. 2002)
(“[W]e have explicitly approved of [reasonable doubt]
instructions containing the word ‘restrain’ for nearly five
decades.” (citations omitted)); Commonwealth v. Young, 317
A.2d 258, 261–62 (Pa. 1974) (“[W]e have repeatedly placed our
imprimatur on the charge expressed in Commonwealth v.
Donough . . . .”); Commonwealth v. Burns, 187 A.2d 552,
560–61 (Pa. 1963) (defining reasonable doubt as expressed in

                               19
Donough).

       The United States Supreme Court has not addressed
whether the “restrain from acting” formulation is acceptable.
Instead, it has repeatedly approved of defining reasonable doubt
as “a doubt that would cause a reasonable person to hesitate to
act.” Victor, 511 U.S. at 20 (emphasis added).

        Comparing the “hesitate to act” instruction with the
“restrain from acting” formulation, we are inclined to agree with
Thomas that the latter places a lower burden of proof on the
prosecution. “Hesitate” implies a temporary interruption before
acting. See Webster’s Third New Int’l Dictionary 1061 (1966)
(“hesitate . . . 1 a : to hold back in doubt or indecision : avoid
facing a decision, encounter, or problem . . . b : to hold back
from as if from scruple . . . 2 : to delay [usually] momentarily :
Pause . . . 3 : Stammer . . . .”). “Restrain” suggests a more
prolonged, if not permanent, period of inaction. See id. at 1936
(“restrain . . . 1 a : to hold (as a person) back from some action,
procedure, or course : prevent from doing something (as by
physical or moral force or social pressure) . . . b : to limit or
restrict to or in respect to a particular action or course : keep
within bounds or under control . . . 2 a : to moderate or limit the
force, effect, development, or full exercise of : prevent or rule
out excesses or extremes of . . . b : to keep from being
manifested or performed . . . 4 a : to deprive of liberty : place
under arrest or restraint b : to deprive (as of liberty) by restraint
: abridge the freedom of . . . .” (obsolete definitions omitted)).

                                 20
Accordingly, defining reasonable doubt as such a doubt that
would “restrain” one’s actions decreases, to some extent, the
burden of proof that the prosecution would have to meet were
the “hesitate to act” formulation employed instead.

       Nonetheless, even though we believe that the “restrain
from acting” formulation lessens the prosecution’s burden of
proof, we cannot say that its use is unconstitutional. The
Supreme Court has never indicated that a reasonable doubt
instruction must demand as much from the prosecution as the
“hesitate to act” formulation does. Instead, the Court has merely
described the “hesitate to act” formulation as a “common sense
benchmark for just how substantial such a doubt must be.”
Victor, 511 U.S. at 20–21. It does not follow that any definition
requiring more doubt than this benchmark is unconstitutional.

       The Court has provided us with a standard for assessing
the constitutionality of a reasonable doubt instruction: “‘[T]aken
as a whole, the instructions [must] correctly conve[y] the
concept of reasonable doubt to the jury.’” Id. at 6 (quoting
Holland v. United States, 348 U.S. 121, 140 (1954)). Applying
this standard, the Court has approved of reasonable doubt
instructions that defined the term as “the kind of doubt . . .
which you folks in the more serious and important affairs of
your own lives might be willing to act upon,” Holland, 348 U.S.




                               21
at 140,5 “not a mere possible doubt . . . [but] that state of the
case which, after the entire comparison and consideration of all
the evidence, leaves the minds of the jurors in that condition that
they cannot say they feel an abiding conviction, to a moral
certainty, of the truth of the charge,” Victor, 511 U.S. at 7
(emphasis omitted), and “an actual and substantial doubt
reasonably arising from the evidence, from the facts or
circumstances shown by the evidence, or from the lack of
evidence on the part of the State, as distinguished from a doubt
arising from mere possibility, from bare imagination, or from
fanciful conjecture,” id. at 18 (emphasis omitted).


       5
        The charge reviewed in Holland thus spoke in terms of
a doubt sufficient to provide a basis for affirmative action in an
important personal matter, as contrasted with the charge before
us which spoke in terms of a doubt sufficient to provide a basis
for choosing not to act in such a matter. Both, however, spoke
of a doubt sufficient to control one’s behavior, as contrasted
with a doubt sufficient to cause one to “hesitate to act.” In
Holland, the Court expressed a preference for a “hesitate to act”
charge but held that the charge given there was “not of the type
that could mislead the jury into finding no reasonable doubt
when in fact there was some.” 348 U.S. at 140. While we have
concluded that the charge given here could be understood to
lower the government’s burden to some degree from that
imposed by a “hesitate to act” charge, that degree is no greater
than the degree of lowering in Holland, and we are confident
that here, too, the charge was not of the type that could mislead
the jury.

                                22
       In contrast, the Court has held only one reasonable doubt
instruction to be constitutionally deficient:

       It must be such doubt as would give rise to a
       grave uncertainty, raised in your mind by reasons
       of the unsatisfactory character of the evidence or
       lack thereof. A reasonable doubt is not a mere
       possible doubt. It is an actual substantial doubt.
       It is a doubt that a reasonable man can seriously
       entertain. What is required is not an absolute or
       mathematical certainty, but a moral certainty.

Cage v. Louisiana, 498 U.S. 39, 40 (1990). In Cage, the Court
reasoned that “the words ‘substantial’ and ‘grave,’ as they are
commonly understood, suggest a higher degree of doubt than is
required for acquittal under the reasonable doubt standard.” Id.
at 41. The Court continued: “[w]hen those statements are then
considered with reference to ‘moral certainty,’ rather than
evidentiary certainty, it becomes clear that a reasonable juror
could have interpreted the instruction to allow a finding of guilt
based on a degree of proof below that required by the Due
Process Clause.” Id.

        Viewed against this jurisprudential background, we
conclude that the reasonable doubt instruction used here was
constitutional. Although “restrain from acting” requires more
doubt to acquit than “hesitate to act,” it does not, by itself, so
raise the threshold as to “suggest a higher degree of doubt than


                               23
is required for acquittal under the reasonable doubt standard.”
See id. at 41. As a result, the trial court’s mere use of the word
“restrain,” though perhaps not ideal, is not enough to render its
entire instruction unconstitutional.6

                                2.

       Thomas’ second claim is that the Commonwealth’s
closing argument at sentencing violated his due process and
Eighth Amendment rights by inviting the jury to consider an
improper sentencing factor—future dangerousness.         He


       6
         The Pennsylvania Supreme Court has also rejected
arguments that the word “hesitate” must replace “restrain” in a
proper reasonable doubt instruction. See, e.g., Commonwealth
v. Brown, 368 A.2d 626, 634 (Pa. 1976) (dismissing an
“object[ion] to the use of the word ‘restrain’, and [the]
suggest[ion that] ‘hesitate’ is a more appropriate standard”); see
also, e.g., Commonwealth v. Porter, 728 A.2d 890, 899 (Pa.
1999) (“[T]he distinction between ‘hesitate before acting’ and
‘restrain before acting’ is de minimis and clearly such a subtle
variation in phrasing would not be an abuse of the trial court’s
discretion.”). It has done so even though Section 7.01(3) of the
Pennsylvania Suggested Standard Criminal Jury Instructions
recommends providing juries with a definition of reasonable
doubt that includes the word “hesitate.” See Commonwealth v.
Collins, 957 A.2d 237, 264 (Pa. 2008); Commonwealth v. Rios,
920 A.2d 790, 805–06 (Pa. 2007); Commonwealth v. Carson,
913 A.2d 220, 254 (Pa. 2006); Porter, 728 A.2d at 899–900.

                               24
contends that the Com m onw ealth’s conduct w as
unconstitutional for two reasons: 1) it urged the jury to consider
future dangerousness when contemplating the death penalty,
which a jury cannot do under Pennsylvania law; and 2) it created
an unacceptable risk that the jury believed, in error, that Thomas
could be released on parole if he were not sentenced to death.
Thomas also claims that trial counsel was ineffective for failing
to object to the Commonwealth’s argument or to seek curative
instructions.

        In reviewing the constitutionality of the Commonwealth’s
conduct at sentencing, “[t]he relevant question is whether the
prosecutors’ comments ‘so infected the trial with unfairness as
to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Here, at
sentencing, the Commonwealth stated the following as part of
its closing argument to the jury:

              There sits Brian Thomas, there sits
       convicted Brian Thomas. You have found what
       he did to Linda Johnson. You heard what
       happened to [the] three year old [whom he
       assaulted]. . . . You heard what happened to [the
       neighbor whose bedroom he trespassed into].

              It is not for me to say, it is not for the
       Judge to say. Only you can say enough. Only you
       can say stop.

                               25
       I submit to you, ladies and gentlemen, that
Brian Thomas has used up his chances. I would
submit to you that it’s time for somebody to say
Brian Thomas, you have forfeited your right to
live among civilized people by your conduct, by
your behavior, what you did, why you did it and
how you did it. You should not be allowed to
continue.

         There is not a cry here, ladies and
gentlemen, for vengeance. There is not a cry here
to bring back a person who is dead. [B]ut there is
a cry here, ladies and gentlemen, for the type [of]
person who would brutally beat, rape and
sexual[ly] mutilate another human being. . . .
[I]t’s time for somebody to say in some way Brian
Thomas, enough is enough. The citizens of
Philadelphia can’t tolerate you in their midst, take
you out somewhere where your type [of] conduct
will not ever be a threat to the citizens of
Philadelphia again.

                      [* * *]

       . . . I submit to you that based on your
findings and based on the facts of this case, you
must say there is no mitigation, the buck stops
here, and for what you did, Brian Thomas, you
should die. [Y]ou should die.

The Commonwealth’s closing does not urge the jury to

                        26
consider Thomas’ future dangerousness as a sentencing factor.
Taken in isolation, certain statements may seem to border on
such an appeal.          But when viewed in context, the
Commonwealth’s message is clear: Thomas’ crimes, both past
and present, are so repulsive that they warrant the death penalty.
The Commonwealth’s references to Johnson’s murder, Thomas’
assault of the three-year-old, and his trespass into a neighbor’s
bedroom demonstrate that the Commonwealth was framing its
argument with the aggravating circumstance that it sought to
show at sentencing: Thomas’ history of violent felonies. With
that in mind, the Commonwealth’s calls for the jury to “say
enough,” “say stop,” and to tell Thomas that “[y]ou should not
be allowed to continue,” are plain allusions to its claim that
“Brian Thomas has used up his chances,” and that “the buck
stops here, and for what you did, Brian Thomas, you should
die.” Indeed, the Commonwealth’s use of the word “tolerate”
and the phrase “your type [of] conduct” indicates that it wanted
the jury to impose the death penalty because the “citizens of
Philadelphia” had had enough of Thomas’ past criminal
conduct, not because Thomas could be a threat to society in the
future. Cf. Simmons v. South Carolina, 512 U.S. 154, 157
(1994) (characterizing an argument that death “would be ‘a
response of society to someone who is a threat. Your verdict
will be an act of self-defense’” as an argument to consider future
dangerousness as a sentencing factor).

      Nor does the Commonwealth’s argument create an
unacceptable risk that the jury believed that, if it did not impose

                                27
the death penalty, Thomas could be released on parole. Plainly,
the Commonwealth never mentioned parole, and we do not read
its argument as suggesting that Thomas could be paroled from
a life sentence. As a result, the Commonwealth’s conduct at
sentencing was constitutional.7

                                3.

        Thomas’ third claim is that his trial counsel was
ineffective for failing to life-qualify the jury—to determine that
each juror could vote for a life sentence. Strickland sets the
relevant test: Thomas must show that 1) his counsel’s
performance was deficient, and 2) his counsel’s deficient
performance caused him prejudice. 466 U.S. at 687. To be
deficient, counsel’s performance must fall below an objective
standard of reasonableness. Id. at 687–88. To demonstrate
prejudice, Thomas “must show 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.

       In Morgan v. Illinois, 504 U.S. 719 (1992), the Supreme


       7
        Because we see no merit to Thomas’ underlying claim
of error, we also hold that counsel was not ineffective for
failing to object. See Moore v. Deputy Comm’rs of SCI-
Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991) (concluding that
counsel was not ineffective for failing to object where “there
would have been no basis for the objection”).

                               28
Court held that defendants had a right to life-qualify potential
jurors at voir dire. At issue here is not whether Thomas’ trial
counsel should have known he had a right to ask life-qualifying
questions at the time the jury was empaneled—six years before
Morgan was decided. It is clear that he knew that he could: he
asked one juror life-qualifying questions, and she responded that
she could vote for a life sentence under certain circumstances.
The only question in this case is whether counsel’s failure to ask
the rest of the jurors life-qualifying questions constituted
ineffectiveness. We believe that it does not.

       First, we note that the Supreme Court has never imposed
an obligation on trial counsel to life-qualify a jury. See Morgan,
504 U.S. at 726 (framing the issue as “whether on voir dire the
court must, on defendant’s request, inquire into the prospective
jurors’ views on capital punishment” (emphasis added)).

       Second, Thomas has not identified any relevant
“[p]revailing norms of practice as reflected in American Bar
Association standards and the like,” Strickland, 466 U.S. at 688,
that suggest that Thomas’ counsel had an obligation to life-
qualify the jury.

       Third, the record does not indicate that Thomas’ counsel
had any reason to life-qualify any additional jurors. Thomas
suggests that two jurors showed so much enthusiasm for the
death penalty in their responses to the court’s death-qualification
question that they should have been life-qualified: 1) one juror

                                29
responded with “I believe in the death penalty” when asked
whether he had “any moral, religious or ethical beliefs which
could prevent [him] from voting for the death penalty in a
proper case”; and 2) another juror answered “[n]o” before the
court finished asking the question. To us, however, neither
response is so indicative of a bias in favor of the death penalty
that effective counsel would have asked to life-qualify these two
jurors. There are a myriad of reasons why the first juror chose
to use the words that he did, and the second juror chose to
answer as quickly as he did. Without more, we will not
speculate that they did so because of any enthusiasm for the
death penalty.

        Fourth, even if Thomas’ counsel were deficient for
failing to life-qualify every juror, Thomas has not shown
prejudice. Since Pennsylvania’s death sentence can only be
imposed by a unanimous jury, see 42 Pa. Cons. Stat. §
9711(c)(iv), Thomas has demonstrated prejudice if “‘there is a
reasonable probability that, but for counsel’s unprofessional
errors . . .’ one juror [would have] voted to impose a sentence of
life imprisonment rather than the death penalty.” Bond v. Beard,
539 F.3d 256, 285 (3d Cir. 2008) (quoting Strickland, 466 U.S.
at 694). Thomas has provided not a shred of evidence
suggesting any probability that, had his trial counsel life-
qualified every juror, at least one juror would have voted to
sentence Thomas to life imprisonment. He simply invites our
speculation. Accordingly, Thomas’ claim for habeas relief on
this ground was properly denied.

                               30
                              IV.

        We turn next to the issues that the Commonwealth raises
on cross-appeal. The District Court granted Thomas sentencing
relief because it determined that two of his claims had merit: 1)
Thomas’ trial counsel was ineffective for failing to investigate
and present mitigating evidence, and 2) Thomas’ waiver of his
right to present mitigating evidence was not made knowingly
and intelligently. Thomas III, 388 F. Supp. 2d at 505–11,
513–16. On cross-appeal, the Commonwealth argues that the
District Court erred in vacating Thomas’ sentence because 1) the
District Court applied the wrong standard of review, 2) there is
insufficient evidence that Thomas’ counsel failed to investigate
mitigating evidence, and 3) any deficiency by counsel did not
prejudice Thomas.

                               A.

        The Commonwealth claims that the District Court erred
in reviewing Thomas’ ineffective assistance and waiver claims
de novo because they were “adjudicated on the merits” by the
Pennsylvania Supreme Court, and AEDPA deference pursuant
to Section 2254(d) is warranted. We disagree.

       It is clear that Thomas raised both the ineffective
assistance and waiver claims in state court. On direct appeal,
Thomas asserted that he did not waive his right to present
mitigating evidence knowingly and intelligently. Indeed, he

                               31
submitted an affidavit that set out the factual basis for this
claim:

       I did not then understand that I could present
       evidence concerning my character as a mitigating
       circumstance during the penalty phase. I was
       under the belief that I could only present evidence
       relating to the circumstances of the offense. This
       is the reason why I declined to present any
       testimony at the penalty hearing. . . . At no time
       did my attorney explain to me that evidence
       concerning my character could or should be
       presented for the jury’s consideration at the
       penalty hearing.

In his PCRA petition, Thomas repeated this claim, and added an
allegation that counsel was ineffective for failing to investigate
and present mitigating evidence that was available at the time of
his sentencing.

       Even though Thomas raised these claims during the
course of the state court proceedings, no state court actually
adjudicated them on their merits. The PCRA court and the
reviewing Pennsylvania Supreme Court declined to reach the
merits of each. Instead, both courts determined that the claims
“have previously been decided by [the Pennsylvania Supreme
Court] on direct appeal.” Thomas II, 744 A.2d at 714 & n.3. In
reaching that conclusion, both courts were mistaken. First, the
Pennsylvania Supreme Court could not have addressed Thomas’

                               32
ineffective assistance claim on direct appeal because he raised
it for the first time in his PCRA petition. Second, on direct
appeal, the Pennsylvania Supreme Court never determined
whether Thomas knowingly and intelligently waived his right to
present mitigating evidence. On direct appeal, the Pennsylvania
Supreme Court addressed only one mitigating evidence issue:
whether Thomas understood that he could present mitigating
evidence. Thomas I, 561 A.2d at 710 (“Finally, Appellant
complains that his trial counsel did not advise him that he could
put on evidence of mitigating circumstances and that this
omission was prejudicial ineffectiveness.” (emphasis added)).
But Thomas’ waiver claim raised a completely different issue:
he asserted that his waiver was not knowing and intelligent
because he did not understand the nature and purpose of
mitigating evidence. Therefore, no state court actually decided
the claims that formed the basis of the District Court’s decision
to grant Thomas habeas relief.

        The Commonwealth points out that the Pennsylvania
Supreme Court, in reviewing Thomas’ PCRA petition, stated
that “[t]he issue of the presentation of mitigating evidence, in all
its possible manifestations, was determined by this Court’s
previous decision.” Thomas II, 744 A.2d at 714 n.3. The
Commonwealth urges us to accept the Pennsylvania Supreme
Court’s statement at face value and view Thomas’ claims as
“adjudicated on the merits.” This we cannot do. For the
purposes of determining whether there was an “adjudication on
the merits” in state court, what matters most is what the state

                                33
court actually did, not what it said it did. We cannot blindly
accept a court’s ex post characterization of its prior action when
that characterization is at odds with what we conclude the
court’s prior action plainly was.

       “[I]f an examination of the opinions of the state courts
shows that they misunderstood the nature of a properly
exhausted claim and thus failed to adjudicate that claim on the
merits, the deferential standards of review in AEDPA do not
apply.” Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002).
Here, the record plainly shows that while Thomas raised the
claims at issue in state court, the state courts did not reach their
merits. Accordingly, there was no “adjudication on the merits,”
and the District Court was correct in reviewing the claims de
novo. See Appel, 250 F.3d at 210.

                                B.

        The District Court addressed Thomas’ ineffective
assistance and waiver claims together, Thomas III, 388 F. Supp.
2d at 504, but Thomas’ ineffective assistance claim was the
focal point of its analysis. First, the District Court concluded
that trial counsel was ineffective for failing to investigate and
present mitigating evidence. Id. at 505–11. Second, the District
Court determined that Thomas’ waiver of his right to present
mitigating evidence did not cure the prejudice caused by
counsel’s deficiency because the waiver was not made
knowingly and intelligently. Id. at 513–16. Accordingly, in

                                34
reviewing the District Court’s decision and the merits of the
Commonwealth’s cross-appeal, we will concentrate on Thomas’
ineffective assistance of counsel claim.

        The Commonwealth directs our attention to the
evidentiary record that Thomas is obligated to produce in
support of his ineffective assistance claim. It points out that
courts assessing attorney performance must apply a “strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689. Here, the Commonwealth sees no evidence on the record
concerning the extent, if any, of Thomas’ counsel’s pre-
sentencing investigation into mitigating evidence. It argues that,
based on such a record, Thomas cannot possibly demonstrate
that his counsel was deficient. Accordingly, the Commonwealth
asserts that we must deny Thomas’ request for habeas relief.

        We agree with the Commonwealth that the record is
sparse. The only documentary evidence directly pointing to a
failure to investigate is a declaration from Thomas’ aunt, signed
nine years after Thomas’ sentencing, that states that no attorney
or investigator asked her about Thomas’ life and mental health
while he was on trial. But Thomas has sought to prove that trial
counsel did not investigate, so Thomas’ failure to discover
evidence of an investigation is itself a sign that none occurred.
Therefore, it is entirely appropriate for us to consider what
Thomas has looked for, but cannot find. Here, after Thomas
purportedly waived the presentation of mitigating evidence,

                               35
there was no proffer from counsel identifying the investigative
measures he had undertaken, or what evidence he was prepared
to present. Additionally, a search of the state court file, where
Thomas’ court-appointed counsel and the court would have
lodged certain case-related documents, yielded nothing
suggesting an investigation—no request for a mitigation
investigator, no request for funds for a mitigation investigation,
no request for a defense mental health expert, and no subpoenas
for mental health records. Had Thomas’ counsel performed any
investigation, we would expect either some mention of it in open
court or some “paper trail” suggesting it in the record of
proceedings. The absence of both implies that counsel did no
investigating.

       Nonetheless, from this record, we cannot simply jump to
the conclusion that Thomas’ counsel was deficient. Counsel’s
performance enjoys a presumption of effectiveness, and we must
“judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of
counsel’s conduct.” Id. at 689–90. “A reviewing court cannot
make such a determination on a clean slate.” Marshall, 307
F.3d at 106. This means that based on the present record, we
cannot affirm the District Court’s conclusion that Thomas’
counsel was deficient at sentencing.

       We by no means go so far as to deny Thomas the
possibility of relief. This is not the first time we have been
asked to determine counsel’s effectiveness where “the picture is

                               36
less than complete.” Id. In Marshall, we also had “no record
before us as to what preparation or investigation, if any, was
performed by counsel in anticipation of the penalty phase . . . .”
Id. We therefore “conclude[d] that a District Court hearing is
essential, and remand[ed] for a new ruling by the District Court
as to Strickland based upon a complete record.” Id. at 117.
Likewise, we believe that any resolution of Thomas’ Strickland
claims here is premature without the benefit of an evidentiary
hearing. Accordingly, we will remand the case for a hearing
concerning the extent, if any, of Thomas’ counsel’s pre-
sentencing investigative efforts to obtain mitigating evidence.

                               C.

       The Commonwealth urges that an evidentiary hearing
would be inappropriate for two reasons: 1) Thomas has failed to
develop a factual record in state court, so a hearing would be
barred by 28 U.S.C. § 2254(e)(2); and 2) even if counsel were
deficient, Thomas cannot prevail because he was not prejudiced.
Neither of these arguments are persuasive.

                                1.

       First, Thomas did not “fail[] to develop the factual basis
of a claim in State court” in such a way that causes Section




                               37
2254(e)(2) to bar an evidentiary hearing.8 “Under the opening
clause of § 2254(e)(2), a failure to develop the factual basis of
a claim is not established unless there is lack of diligence, or
some greater fault, attributable to the prisoner or the prisoner’s
counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000).
“Diligence . . . depends upon whether the prisoner made a
reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court; it does not
depend . . . upon whether those efforts could have been
successful.” Id. at 435. In Thomas v. Varner, 428 F.3d 491 (3d
Cir. 2005), we concluded that the petitioner’s request for an
evidentiary hearing in the state post-conviction court, which was
denied, showed sufficient diligence to render Section 2254(e)(2)
inapplicable. Id. at 498. Likewise, here, Thomas requested an
evidentiary hearing in the PCRA court to develop the factual
record for his claim that trial counsel failed to investigate
mitigating evidence. Therefore, Section 2254(e)(2) does not
apply. See also Williams, 529 U.S. at 437 (“Diligence will
require in the usual case that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the manner prescribed by
state law.”).


       8
         According to 28 U.S.C. § 2254(e)(2)’s opening clause,
“[i]f the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim . . . .” Sections 2254(e)(2)(A)
and (B) list three exceptions to the opening clause, which are
not at issue here.

                               38
        Second, without a fully developed record, we cannot
foreclose the possibility that Thomas will be able to show
prejudice—a reasonable probability that, but for counsel’s
deficiency, one juror would have voted to impose a sentence of
life imprisonment. See Bond, 539 F.3d at 285. In Pennsylvania,
the jury must impose a sentence of life imprisonment unless it
unanimously finds that the aggravating circumstances outweigh
the mitigating circumstances. 42 Pa. Cons. Stat. § 9711(c)(iv).
“[E]xtreme mental or emotional disturbance” is specifically
listed as a mitigating circumstance that Pennsylvania juries may
consider when deciding whether to impose the death penalty. 42
Pa. Cons. Stat. § 9711(e)(2). Here, the Commonwealth does not
dispute that even the most cursory search would have yielded
evidence of Thomas’ long history of mental illness. This history
includes a court commitment to a psychiatric hospital when
Thomas was sixteen, and a mental health evaluation when he
was eighteen that described him as having “responses . . .
similar to those in the literature describing paranoid
schizophrenia,” and “serious mental disturbance.” Additionally,
had counsel sought to examine Thomas’ mental health prior to
his sentencing, the results likely would have revealed some
mental illness: according to a court-ordered psychological
evaluation conducted the day of Thomas’ sentencing,

       [a]t the present time, this Defendant can be best
       described as suffering from Severe Multiple
       Personality Disorders, and continues to indicate
       Sociopathic, Reactive Paranoid, and Schizoid


                              39
       Traits. There is continued indication, both
       clinically as well as on psychological testing, of a
       great deal of underlying psychopathology which
       is clearly focused in the sexual area, with
       indication of sexual identity confusion, hostility
       and ambivalence toward women, and indication
       of very primitive, brittle, and inadequate controls.

Placed in the hands of effective counsel, there is a reasonable
probability that this evidence would have persuaded at least one
juror to impose life imprisonment rather than the death penalty.

                                2.

        The Commonwealth argues that even assuming that
effective counsel would have discovered Thomas’ mental health
history, no prejudice could have resulted because Thomas would
not have let his counsel present any mitigating evidence. The
Commonwealth asserts that Schriro v. Landrigan, 550 U.S. 465
(2007), and Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), are
indistinguishable from the present case and require us to hold
that there is no prejudice here. We disagree.

        In Landrigan, the Supreme Court confronted for the first
time “a situation in which a client interferes with counsel’s
efforts to present mitigating evidence to a sentencing court.”
550 U.S. at 478. There, the petitioner’s counsel informed the
trial court that he had advised the petitioner “very strongly” that


                                40
the petitioner should present mitigating evidence. Id. at 469.
The trial court questioned the petitioner, and the petitioner
confirmed that he instructed his counsel not to present
mitigating evidence and that he understood the consequences.
Id. When the petitioner’s counsel was proffering, at the court’s
request, the mitigating evidence he intended to present, the
petitioner interrupted multiple times to explain away the
mitigating characteristics of the evidence, and also to reaffirm
that he did not want the evidence presented in court. Id. at 470.
Finally, at the end of the sentencing hearing, the petitioner stated
that “I think if you want to give me the death penalty, just bring
it right on. I’m ready for it.” Id. Applying AEDPA’s
deferential standard of review, the Supreme Court determined
that the state appellate court reasonably concluded that the
petitioner had refused to allow the presentation of mitigating
evidence, and this refusal prevented any showing of prejudice.
Id. at 475–77.

       In Taylor, the petitioner wrote a confession letter to the
police, which stated that “I want the maximum sentence.” 504
F.3d at 421. At the petitioner’s guilty plea hearing, the
petitioner agreed with his counsel’s statement that he had
instructed counsel not to contact any witnesses or to call any
medical personnel who had spoken to him, and that he
understood that “the likely result will be imposition of the death
penalty.” Id. At sentencing, the petitioner informed the court
that he declined to present any mitigating evidence. Id. at 422.
The court then sentenced the petitioner to death. Id. In the

                                41
subsequent state post-conviction relief proceedings, the state
court conducted an evidentiary hearing, denied the petitioner’s
request for relief, and found that the petitioner had discussed the
possibility of presenting testimony of mitigating circumstances
with his counsel, that the petitioner rejected the idea of doing so,
and that the petitioner personally called potential witnesses to
tell them not to attend his sentencing. Id. at 424. The state
appellate court affirmed these findings and the court’s holding.
Id.; see also Commonwealth v. Taylor, 718 A.2d 743 (Pa. 1998).

       Applying AEDPA’s deferential standard of review, we
determined in Taylor that the state post-conviction court’s
factual and legal conclusions were reasonable. 504 F.3d at 452,
455. Comparing the petitioner to the one in Landrigan, we
agreed with the petitioner that “he was not belligerent and
obstructive in court like the defendant in Landrigan . . . , but the
record shows that his determination not to present mitigating
evidence was just as strong.” Id. at 455. As a result, “whatever
counsel could have uncovered, [the petitioner] would not have
permitted any witnesses to testify, and was therefore not
prejudiced by any inadequacy in counsel’s investigation or
decision not to present mitigation evidence.” Id.

        The Commonwealth claims that like the petitioners in
Landrigan and Taylor, Thomas would have prevented his
counsel from presenting any mitigating evidence, no matter
what it was, thus obviating any possibility of prejudice. It points
to Thomas’ conduct at his sentencing for factual support. Yet

                                42
based on our review of the record, we believe that both
Landrigan and Taylor differ significantly from the present case.
As an initial matter, AEDPA deference pursuant to Section
2254(d) constrained federal review in both Landrigan and
Taylor. It does not apply here. See supra Part IV.A. This
means that while the Pennsylvania courts’ determinations of
factual issues “shall be presumed to be correct,” we review de
novo the mixed question of law and fact of whether Thomas can
show prejudice. See Appel, 250 F.3d at 210.

       Moving to the merits of the Commonwealth’s argument,
we cannot conclude that Thomas would have interfered with the
presentation of all mitigating evidence. Thomas’ colloquy at
sentencing focused narrowly on whether he wanted to take the
stand himself:

       [THOMAS’ COUNSEL]: Mr. Thomas, you recall
       during the case in chief that we inquired as to
       whether or not you wanted to testify on your own
       behalf. Do you recall that?

       [THOMAS]: Yeah, I do. Why do I answer all
       these questions before? We done be over that
       already. No, I don’t want to get on the stand.

       THE COURT: Well, this is a different portion.

       [THOMAS]: I still don’t want to get on the stand.



                              43
       THE COURT: Under no conditions?

       [THOMAS]: No.

       THE COURT: Is this your decision?

       [THOMAS]: Yes, it is.

       THE COURT: Did you discuss it with your
       lawyer, Mr. Watson?

       [THOMAS]: Yes.

       THE COURT: And you already told him, I would
       like to repeat, but it’s your decision not to take the
       stand at this penalty stage of the hearing or even
       to present any evidence. Is that your independent
       and voluntary decision?

       [THOMAS]: It is.

We acknowledge what is plainly of record: the sentencing court
did ask Thomas to confirm that “it’s your decision not to . . .
present any evidence.” Yet we cannot ignore that this question
was part of a compound question that also asked Thomas to
reaffirm that “it’s your decision not to take the stand,” and the
remainder of the questions in the colloquy only concerned
Thomas’ desire to testify on his own behalf. Accordingly,
Thomas’ terse answer to this inquiry does not display an intent
to interfere with the presentation of mitigating evidence that is

                                44
strong enough to preclude a showing of prejudice. To us, the
only thing that Thomas clearly disclaimed at his colloquy was a
desire to testify on his own behalf.

      The followup questions asked by the Commonwealth fare
even worse. At most, Thomas’ responses indicate that he had no
witnesses to call at his sentencing:

       [THE COMMONWEALTH]: Mr. Thomas, do
       you have any witnesses that you would like to call
       at this time at this stage of the proceeding?

       [THOMAS]: No.

       [THE COMMONWEALTH]: Are you sure about
       that?

       [THOMAS]: No.

       [* * *]

       THE COURT: You mean no, you don’t have any
       witnesses to call.

       [THOMAS]: Right.

       [THE COMMONWEALTH]: There is no witness
       in existence you would like to call, sir, at this
       time. Yes or no?


                              45
       [THOMAS]: I said no.

This exchange provides no support for the Commonwealth’s
argument that Thomas would have prevented the presentation of
all mitigating evidence.

        Nor does Thomas’ refusal to stipulate to his age and
education tip the scales in the Commonwealth’s favor. We
agree with the Commonwealth that Thomas’ age and education
are relatively innocuous facts, and Thomas’ decision not to
stipulate to them is odd. We cannot agree, however, that this
proves that Thomas was not prejudiced. While Thomas’ refusal
to stipulate is consistent with the Commonwealth’s position, it
is equally consistent with other scenarios that the record
supports. Indeed, Thomas has claimed that he did not
understand the nature and purpose of mitigating evidence.
Thomas’ failure to stipulate could be viewed as a symptom of
this fundamental misunderstanding, and not as an affirmative
declaration against the presentation of all mitigating evidence.

        In sum, this case bears no resemblance to Landrigan and
Taylor. Thomas never indicated that he would interfere with or
otherwise prevent the presentation of all mitigating evidence,
regardless of its nature. At sentencing, Thomas’ colloquy
focused on two very specific questions: 1) whether he desired to
testify on his own behalf; and 2) whether he had any other
witnesses to call. That he answered “no” to both does not mean
that, had effective counsel prepared mental health evidence, he

                              46
would have also declined its presentation. Therefore, we cannot
conclude that Thomas’ conduct at sentencing eliminated all
possibility that counsel’s performance caused him prejudice.9

                               3.

        The Commonwealth also argues that Thomas was not
prejudiced because the evidence of Thomas’ mental health
history aggravated more than it mitigated. The Commonwealth
points to various negative statements in Thomas’ psychological
evaluations, including those that described him as having “little
understanding of his social and moral responsibility,” and as a
“sexual deviate with sadistic tendencies.” Some of these
evaluations even recommended Thomas’ incarceration because
“he is a serious threat in the community,” and “a dangerous
criminal.”     The Commonwealth also notes that certain
evaluations documenting Thomas’ mental health history
referenced two other criminal incidents that the Commonwealth


       9
        In assessing Thomas’ ability to show prejudice under
Strickland, the only question we answer here is whether
Thomas would have waived his right to present mitigating
evidence had he been represented by effective counsel. As a
result, we offer no opinion on whether a waiver of the right to
present mitigating evidence must be “informed and knowing.”
See Landrigan, 550 U.S. at 479 (“We have never imposed an
‘informed and knowing’ requirement upon a defendant’s
decision not to introduce evidence.”).

                               47
did not introduce at sentencing: 1) in 1975, Thomas sodomized
five police horses with a broom handle, killing one of them; and
2) in 1976, Thomas sexually assaulted an infant girl. As a
result, the Commonwealth questions not only whether the
inclusion of Thomas’ mental health history could have possibly
changed the result of his sentencing, but also whether effective
counsel would have even introduced any of it for the jury’s
consideration.

        While we agree with the Commonwealth that some of
Thomas’ mental health history paints him in a negative light, we
are not convinced that the death penalty is a fait accompli even
if evidence of Thomas’ mental health history were available at
sentencing. Certainly, evidence that Thomas is a sadistic and
dangerous sexual deviate who committed at least one prior act
that bears resemblance to the crime in this case is not mitigating.
Additionally, the quantity of aggravating evidence that the jury
already did consider was significant. But Thomas’ mental
health history acts as a common thread that ties all this evidence
together. A single juror may well have believed that this
unifying factor explained Thomas’ horrific actions in a way that
lowered his culpability and thereby diminished the justification
for imposing the death penalty. See Penry v. Lynaugh, 492 U.S.
302, 319 (1989) (“‘[E]vidence about the defendant’s
background and character is relevant because of the belief, long
held by this society, that defendants who commit criminal acts
that are attributable . . . to emotional and mental problems, may
be less culpable than defendants who have no such excuse.’”

                                48
(quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring))).        Therefore, there exists a
reasonable probability that effective counsel would have chosen
to present evidence of Thomas’ mental health history, and that
its presentation would have convinced at least one juror to
sentence Thomas to life imprisonment. While Thomas’ crimes
were heinous, and while it may be that the death penalty was
properly imposed, we cannot conclude, on this record, that he
was not prejudiced by trial counsel’s alleged deficiencies at
sentencing.

                               V.

       We agree with the District Court that Thomas cannot
prevail on the three claims before us on his appeal, but we
disagree with the District Court that Thomas’ sentence should
be vacated. Although the absence of any evidence of a pre-
sentencing investigation in this case seems to suggest that none
occurred, it is simply not sufficient to overcome the presumption
of effectiveness that we are bound to apply. As a result, we will
vacate the District Court’s sentencing decision, and remand the
case for an evidentiary hearing concerning the extent, if any, of
Thomas’ counsel’s pre-sentencing investigative efforts to obtain
mitigating evidence.




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