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


7-1-2002

Carpenter v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 95-9001




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"Carpenter v. Vaughn" (2002). 2002 Decisions. Paper 367.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/367


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PRECEDENTIAL

       Filed July 1, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-9001

JAMES H. CARPENTER,

v.

DONALD T. VAUGHN, Warden, State Correctional
Institution at Graterford, PA*

JAMES HENRY CARPENTER,

       Appellant

(*See Court Order of 10/19/99 Amending Caption)

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(Dist. Court No. 91-cv-00934)
District Court Judge: James F. McClure, Jr.

Argued January 19, 2001

Before: BECKER, Chief Judge, ALITO, and
ROTH, Circuit Judges

(Opinion Filed: July 1, 2002)




       Billy H. Nolas (argued)
       David Wycoff
       Defender Association of Philadelphia
       Federal Court Division
       437 Chestnut Street, Suite 510
       Philadelphia, PA 19106

        Attorneys for Appellant

       D. Michael Fisher
       Attorney General
       William H. Ryan, Jr.
       Executive Deputy Attorney General
       Director, Criminal Law Division
       Robert A. Graci
       Assistant Executive Deputy Attorney
       General Law and Appeals
       Criminal Law Division
       Stuart Suss (Argued)
       Senior Deputy Attorney General
       Appeals and Legal Services Section
       Criminal Law Division
       Office of the Attorney General
       2490 Boulevard of the Generals
       Norristown, Pennsylvania 19403

        Attorneys for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

James Carpenter appeals the denial of his petition for a
writ of habeas corpus. Convicted in Pennsylvania state
court of first-degree murder and sentenced to death,
Carpenter has pursued a long course of post-conviction
litigation in the state and federal courts. In this appeal, he
raises numerous arguments, challenging both the guilt and
penalty phases of his trial. Some of the claims that he now
advances had been fairly presented to the state courts at
the time of the District Court decision and are properly
before us. Other claims had not been exhausted at the time
of the District Court decision, but the Commonwealth has

                                 2


waived exhaustion of those claims, and consequently they
too are properly before us. Still other claims were never
raised in the District Court but were presented to the state
courts after the District Court issued its decision. We
decline to entertain those claims here.

We find no merit in the guilt-phase claims that are
properly before us for review. However, we reverse the
decision of the District Court with respect to Carpenter’s
sentence because we conclude that his trial counsel
provided ineffective assistance at the penalty phase when
he failed to object to a highly misleading answer given by
the trial judge in response to a jury question about the
availability of parole if Carpenter was sentenced to life
imprisonment.

I.

The evidence at trial revealed that Jimmie Lee Taylor was
stabbed in the heart on South Penn Street in York,
Pennsylvania, on the night of September 30, 1983. He was
pronounced dead at 10:58 p.m. at York Hospital. The
Commonwealth’s principal witness at trial was Ruth Helen
Emmil, who had previously been Taylor’s girlfriend but had
left him to live with Carpenter. Emmil testified that Taylor
had previously threatened and harassed her and that
Carpenter had spoken to Taylor in an attempt to stop the
harassment. In May of 1983, Taylor -- apparently without
provocation -- hit Carpenter in the face with a hatchet,
breaking his jaw and knocking him unconscious.

At trial, Emmil gave the following account of the events
on the night of Taylor’s death. She and Carpenter had been
drinking with another couple in a bar in York. Both couples
left for another bar and were walking down South Penn
Street when they encountered Taylor at about 9:30 p.m.
As Taylor approached the group, Emmil expressed
apprehension. Taylor, who was carrying a six-pack of beer,
asked Emmil and the other couple if they wanted some
beer. At this point, the other couple proceeded on to the
other bar without Carpenter and Emmil. Without
provocation, Carpenter took a knife from his pocket and
stabbed Taylor in the chest, piercing his sternum and

                                3


heart. Carpenter wiped the knife with a handkerchief and
tossed both the knife and the handkerchief over a fence
into the backyard of a nearby house. (The items were later
found by the owner of the house.) Carpenter and Emmil
then proceeded to meet the other couple at the bar as
planned and had some drinks.

When first questioned by the police, Emmil did not reveal
what she knew about the stabbing, but she explained at
trial that Carpenter had threatened to kill her if she told
anyone what had happened. To add credibility to his threat,
Emmil said, Carpenter had told her that he had previously
killed an ex-girlfriend. The Commonwealth also presented a
witness at trial who testified that Carpenter had offered him
$500 to kill Taylor.

Carpenter testified in his own defense. He basically
agreed with Emmil’s version of the events leading up to the
stabbing, but he claimed that it was Emmil who had
stabbed Taylor and had disposed of the knife and
handkerchief. He admitted that, after the stabbing, he had
asked a friend to purchase a knife similar to the one used
by Emmil because he was sure that the police would
suspect him and he hoped to confuse them. Carpenter also
admitted his animosity toward Taylor and that he had
threatened revenge shortly after Taylor had attacked him
with the hatchet, but he claimed that his desire for revenge
had subsided with the passage of time. According to
Carpenter, it was Emmil, not he, who could not forget
about the hatchet incident or Taylor’s harassment.

The jury believed Emmil’s version of the events and found
Carpenter guilty of first-degree murder on January 20,
1984. Pursuant to 42 Pa. Cons. Stat. S 9711(a), a
sentencing hearing was conducted in front of the same
jury. The prosecution sought to establish one aggravating
circumstance -- that Carpenter had "a significant history of
felony convictions involving the use or threat of violence to
the person." 42 Pa. Cons. Stat. S 9711(d)(9). The
Commonwealth presented evidence that Carpenter had
prior convictions for third-degree murder and assault by a
prisoner. The jury was instructed on three possible
mitigating circumstances: 1) that Carpenter was under the
influence of an extreme mental or emotional disturbance; 2)

                                4
that Carpenter acted under extreme duress or under the
substantial domination of another person; and 3) that
Carpenter’s character and record and the circumstances of
his crime were mitigating factors. See 42 Pa. Cons. Stat.
S 9711(e)(2), (5), & (8). The jury found that one aggravating
circumstance existed and that it outweighed any mitigating
circumstances. Accordingly, the jury sentenced Carpenter
to death. See 42 Pa. Cons. Stat. S 9711(c)(1)(iv).

Post-trial motions were filed in and denied by the Court
of Common Pleas of York County, and Carpenter was
formally sentenced. On direct appeal, the Supreme Court of
Pennsylvania affirmed the conviction and sentence of death.
Commonwealth v. Carpenter, 515 A.2d 531 (Pa. 1986).
Thereafter, Carpenter sought post-conviction relief in both
the state and federal courts. In order to decide which
claims are properly before us for review, we must trace the
complicated procedural history of Carpenter’s various
petitions and appeals.

II.

A.

In 1989, Carpenter filed his first petition for post
conviction relief under Pennsylvania’s Post Conviction Relief
Act ("PCRA"), 42 Pa. Cons. Stat. SS 9541 et seq. The Court
of Common Pleas denied relief, and Carpenter appealed to
the state supreme court.

In July 1991, while his first PCRA petition was pending
before the Pennsylvania Supreme Court, Carpenter filed a
petition in the United States District Court for the Middle
District of Pennsylvania seeking a writ of habeas corpus
under 28 U.S.C. S 2254. The District Court stayed the
federal proceedings until the Pennsylvania Supreme Court
decided Carpenter’s appeal. In 1992, the Pennsylvania
Supreme Court affirmed the denial of Carpenter’s first
PCRA petition. Commonwealth v. Carpenter, 617 A.2d 1263
(Pa. 1992). In 1993, Carpenter filed an amended petition for
writ of habeas corpus with the District Court.

In November 1994, the District Court issued an opinion

                                5


in the habeas proceeding. Carpenter v. Vaughn , 888 F.
Supp. 635 (M.D. Pa. 1994). After identifying 25 claims that
had been raised in either the original or the amended
federal habeas petition,1 the Court rejected most of those
_________________________________________________________________

1. As stated by the District Court, these claims were:

       (1) ineffective assistance of counsel for allowing   the jury to hear that
       petitioner had a prior criminal record;

       (2) ineffective assistance of counsel for failure to question
       prospective jurors on their attitudes towards the death penalty;

       (3) ineffective assistance of counsel for failure to present mitigating
       evidence of Carpenter’s background during the penalty phase;

       (4) ineffective assistance of counsel for failure to object to an
       erroneous jury instruction concerning duress in the penalty phase;

       (5) ineffective assistance of counsel for failure to object to the trial
       court’s answer to a jury question;

       (6) ineffective assistance of counsel for failure to object to Emmil’s
       testimony that she had no criminal record or prior arrest;

       (7) ineffective assistance of counsel for failure to prepare Carpenter
       for his trial testimony;

       (8) ineffective assistance of counsel for failure to object to the
       prosecution’s reference to a lie detector test;

       (9) ineffective assistance of counsel for failure to object to a
       statement in the prosecution’s closing argument, that defense
       counsel and the district attorney agreed that whoever had killed the
       victim was guilty of first-degree murder;

       (10) ineffective assistance of counsel for failure to object to the
       omission of a jury charge on a potential verdict of second-degree
       murder;

       (11) ineffective assistance of counsel for failure to object to the
       omission of a jury charge on a potential verdict of third-degree
       murder based upon voluntary intoxication;

       (12) ineffective assistance of counsel for failure to object to the jury
       instruction on aggravating and mitigating circumstances, and on the
       imposition of the death penalty;

       (13) ineffective assistance of counsel for failure to request jury
       instructions on the mitigating circumstances of extreme mental or
       emotional disturbance and duress;

                                6


claims. All but one of the claims rejected at this point had
been considered by the Pennsylvania Supreme Court (either
_________________________________________________________________

       (14) ineffective assistance of counsel for failure to object to the jury
       instruction on duress as a mitigating factor, which erroneously
       applied the same standard for duress as that required for a
       complete defense to a crime;

       (15) ineffective assistance for failure to object to the erroneous
       instruction in answer to the question from the jury[mentioned in
       issue 5 above];

       (16) ineffective assistance of counsel for failure to call for testimony
       at trial an eyewitness who would have corroborated petitioner’s
       version of events;
       (17) ineffective assistance of counsel for failure to object to the
       prosecutor’s statement that Carpenter deserved the death penalty
       because he "had his chance," having previously been released on
       parole after a conviction for third-degree murder;

       (18) the trial court’s instructions failed to allo w the jury to consider
       all of the relevant mitigating factors;

       (19) the parole officer’s testimony during the pen alty phase
       improperly directed the jury’s attention toward the possibility of
       parole;

       (20) ineffective assistance of counsel for failure   to argue available
       mitigating factors to the jury;

       (21) ineffective assistance of counsel for failure to object to improper
       voir dire questions by the Commonwealth concerning prospective
       jurors’ attitudes toward the death penalty;

       (22) ineffective assistance for failure to challen ge the
       Commonwealth’s exercise of peremptory challenges during jury
       selection (should investigation reveal improper challenges);

       (23) ineffective assistance of counsel for failure to argue that the
       victim’s prior assault on Carpenter constituted a mitigating
       circumstance;

       (24) ineffective assistance of counsel for failure to present evidence,
       to argue to the jury, and to request a jury instruction regarding
       mitigating factors recognized in Penry v. Lynaugh, 492 U.S. 302
       (1989);

       (25) certain official documents including the tria l transcript are
       incorrect and unreliable and do not accurately reflect the

                                7


on direct appeal or in reviewing Carpenter’s first PCRA
petition) and were therefore exhausted. However, the Court
also rejected one additional claim (Claim #24) -- that trial
counsel was ineffective for failing to argue and present
evidence on the mitigating factors recognized in Penry v.
Lynaugh, 492 U.S. 302 (1989) -- that had never been
raised in the state courts and was thus not exhausted. The
Court nevertheless rejected this claim on the merits on the
ground that Carpenter had not shown that he had"cause"
for the failure to exhaust or that a miscarriage of justice
would occur if the claim was not considered. In addition,
the Court observed that trial counsel could not have been
expected to predict Penry, which was not decided until after
Carpenter’s sentencing. See Carpenter v. Vaughn , 888 F.
Supp. at 657.

The District Court permitted Carpenter to provide factual
support for three of his claims2 and ordered supplemental
briefing on three others.3 Two of these latter claims --
Claims 5 and 15 -- alleged that trial counsel was ineffective
at the penalty phase in connection with an allegedly
erroneous answer given by the judge to a question asked by
the jury. The District Court addressed these claims in
relation to Simmons v. South Carolina, 512 U.S. 154 (1994),
in which the majority held that "[w]here the State puts the
_________________________________________________________________

       proceedings in the trial court. [The District Court noted but did not
       number this final claim.]

888 F. Supp. at 641-42.

2. These claims were: (21) "ineffective assistance of counsel for failure to
object to improper voir dire questions by the Commonwealth concerning
prospective jurors’ attitudes toward the death penalty; (22) ineffective
assistance of counsel for failure to challenge the Commonwealth’s
exercise of peremptory challenges during jury selection; and (25) certain
documents which are part of the trial record are incorrect and
unreliable." 888 F. Supp. at 642.

3. These claims were: "(5) ineffective assistance of counsel for failure to
object to the trial court’s answer to a jury question; (15) ineffective
assistance for failure to object to the erroneous instruction in answer to
the question from the jury [mentioned in issue 5 above]; and (16)
ineffective assistance of counsel for failure to call for testimony at trial
an eyewitness who would have corroborated petitioner’s version of
events." 888 F. Supp. at 642.

                                8


defendant’s future dangerousness in issue, and the only
available alternative sentence to death is life imprisonment
without possibility of parole, due process entitles the
defendant to inform the capital sentencing jury . . . that he
is parole ineligible." Id. at 178 (O’Connor, J., concurring in
the judgment); see also id. at 163-64 (plurality opinion).4
The District Court rejected Carpenter’s ineffective
assistance argument on the ground that trial counsel was
not ineffective in failing to make a Simmons objection to the
judge’s answer since Simmons had not been decided at the
time. However, the District Court held that a Simmons "due
process claim was inherent in the claim of ineffective
assistance of counsel presented to the state courts," and
the District Court therefore ordered supplemental briefing
on the question whether Simmons could be applied
retroactively. 888 F. Supp. at 651.

The District Court also requested further briefing on the
claim that counsel was ineffective for failing to call an
eyewitness who allegedly would have corroborated
Carpenter’s version of the events (Claim #16). The Court
stated that this claim was not exhausted and that there
was no "cause" to excuse the failure to present the claim to
the state courts. However, the District Court ordered
further briefing because the Court believed that a
miscarriage of justice might occur if the claim was not
considered. See id. at 655.

In May 1995, after considering the additional briefing, the
District Court denied all of the claims that had been left
open by its earlier decision. See Carpenter v. Vaughn, 888
F. Supp. 658, 668 (M.D. Pa. 1995). The Court held that
Simmons applied retroactively5 but that Carpenter’s claim
failed on the merits because at trial the prosecution had
not made a direct argument regarding Carpenter’s future
dangerousness. See id. The Court disposed of the ineffective
assistance claim regarding the eyewitness by holding that
the eyewitness’s proffered testimony would not have
_________________________________________________________________

4. See also Kelly v. South Carolina, 534 U.S. 246 (2002); Shafer v. South
Carolina, 532 U.S. 36, 39 (2001).

5. The Supreme Court subsequently held to the contrary in O’Dell v.
Netherland, 521 U.S. 151 (1997).

                                9


bolstered Carpenter’s version of the events. Accordingly, the
Court decided that no miscarriage of justice would result
from refusal to review the merits of the claim. See id. at
665. Finally, because Carpenter failed to provide any
factual basis for the three claims that the Court had
permitted him to renew, the Court rejected these three
claims. See id. at 668.

Carpenter filed a notice of appeal to our Court after the
District Court granted a certificate of probable cause for
appeal. Shortly thereafter, Carpenter filed a motion to hold
the appeal in abeyance so that he could file a second PCRA
petition. We granted that motion.

Carpenter returned to the state courts and filed a second
PCRA petition in January 1996. This petition included
claims that Carpenter had raised in the District Court, as
well as others that he had not. The Court of Common Pleas
denied the petition, and the Pennsylvania Supreme Court
affirmed in January 1999. Commonwealth v. Carpenter, 725
A.2d 154 (Pa. 1999). Carpenter then filed a motion with this
Court seeking a remand so that the District Court could
decide whether to permit him to amend his S 2254 petition
to add the claims that had been rejected by the state courts
in the second PCRA proceeding but that had not yet been
presented to the District Court. We denied the motion for
remand.

Now on appeal before us, Carpenter asserts claims that
come to us in three different procedural postures: (1) claims
that were asserted in the original or amended S 2254
petition and that already were properly exhausted when the
S 2254 petition was before the District Court; (2) claims
that were asserted in the original or amended S 2254
petition, that were unexhausted when presented to the
District Court, but that were later raised in the state courts
in Carpenter’s second PCRA petition; and (3) claims that
were never presented to the District Court but were raised
in the second PCRA petition. At oral argument and in a
supplemental brief, the Commonwealth expressly waived
the exhaustion requirement for the second category of
claims noted above.

                                10


B.

1. Under the version of the federal habeas statute in
effect when Carpenter’s original and amended habeas
petitions were filed, a federal court was prohibited from
granting a writ of habeas corpus to a state prisoner unless
(1) the petitioner had exhausted the remedies available in
the state courts, (2) no state corrective process was
available, or (3) circumstances existed that rendered such
process "ineffective to protect the petitioner’s rights." See 28
U.S.C. S 2254(b) (1988) (amended 1996). A prisoner was
deemed not to have exhausted state remedies if the
prisoner had the right under state law to raise his or her
claims by any available procedure. See 28 U.S.C. S 2254(c)
(1988) (amended 1996).

Congress amended the habeas statute when it passed the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 110 Stat. 1214, Pub. L. No. 104-132, and the
amendments went into effect on April 24, 1996. AEDPA
made important changes in the standards to be applied in
determining whether to grant the writ, see 28 U.S.C.
SS 2254(d) and (e); Williams v. Taylor , 529 U.S. 362, 411-13
(2000), but AEDPA did not change the previously noted
exhaustion requirements. See 28 U.S.C. SS 2254(b) & (c).
However, new provisions did address issues relating to
exhaustion. One such provision permits a federal court to
deny an unexhausted claim on the merits "if it is perfectly
clear that the applicant does not raise even a colorable
federal claim." Lambert v. Blackwell, 134 F.3d 506, 514-15
(3d Cir. 1997) (quotation and citation omitted) (construing
28 U.S.C. S 2254(b)(2)). In addition, AEDPA provides that a
state may not be deemed to have waived exhaustion and
may not be estopped from relying on the exhaustion
requirement unless the state, through counsel, expressly
waives the requirement. See 28 U.S.C. S 2254(b)(3).

In order for a claim to be exhausted, it must be"fairly
presented" to the state courts "by invoking one complete
round of the State’s established appellate review process."
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). If a
claim has not been fairly presented to the state courts and
it is still possible for the claim to be raised in the state

                                11


courts, the claim is unexhausted. Under pre-AEDPA law,6 if
a petition contains both exhausted and unexhausted
claims, it is a "mixed" petition and, unless the petitioner
elects to withdraw the unexhausted claim, the entire
petition should be dismissed without prejudice, thereby
leaving the petitioner free to return to the state courts to
exhaust. See Rose v. Lundy, 455 U.S. 509 (1982).
If a claim has not been fairly presented to the state
courts but state law clearly forecloses review, see Lovasz v.
Vaughn, 134 F.3d 146, 148 (3d Cir. 1998), 28 U.S.C.
S 2254(b)(1)(B) (1988) (amended 1996), exhaustion is
excused, see, e.g., Lambert, 134 F.3d at 513, 517-19;
Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996), but the
doctrine of procedural default may come into play. A
procedural default occurs when a prisoner’s federal claim is
barred from consideration in the state courts by an
"independent and adequate" state procedural rule. See, e.g.,
Doctor, 96 F.3d at 683. Federal courts may not consider the
merits of a procedurally defaulted claim unless the
applicant establishes "cause" to excuse the default and
actual "prejudice" as a result of the alleged violation of the
federal law or unless the applicant demonstrates that
failure to consider the claim will result in a fundamental
"miscarriage of justice." Coleman v. Thompson, 501 U.S.
722, 750 (1991).

C.

When the District Court dismissed Carpenter’s S 2254
petition, most of the claims contained in that petition had
been exhausted because they had been presented to the
Pennsylvania Supreme Court either on direct appeal or in
Carpenter’s first PCRA petition. Some of Carpenter’s claims,
however, had not been presented to the state courts. The
District Court treated these claims as procedurally
defaulted and proceeded to apply the "cause and prejudice"
and "miscarriage of justice" standards to these claims. This
was error.
_________________________________________________________________

6. As noted, under 28 U.S.C. S 2254(B)(2), it is now permissible under
some circumstances for an unexhausted claim to be rejected on the
merits.

                                12


Although Carpenter had already filed one PCRA petition
by the time he filed his federal petition, Carpenter’s ability
to assert the new claims in state court was not clearly
foreclosed. In Banks v. Horn, 126 F.3d 206 (3d Cir. 1997),
the petitioner, like Carpenter, had been sentenced to the
death penalty and had already gone through one round of
PCRA proceedings when he filed a S 2254 petition
containing both exhausted and unexhausted claims. We
first acknowledged that the provisions of the PCRA provide
that relief is precluded if a prisoner’s claim has been
previously litigated or waived through failure to raise the
issue at trial, on appeal, or in a prior state post-conviction
proceeding. See id. at 211 (citing 42 Pa. C. S.SS 9543(a)(3)
& 9544(b)). We then examined decisions of the
Pennsylvania Supreme Court in death penalty cases and
found that "notwithstanding a procedural bar, it is possible
that in a death penalty case the Pennsylvania Supreme
Court will not refuse either to entertain a second PCRA
petition or to address the claims raised in it." Id. at 212.
Accordingly, we held that the district court had erred in
treating the petitioner’s claims as procedurally defaulted
when state remedies were not clearly foreclosed. See id. at
213.

Although Carpenter filed his S 2254 petition before we
decided Banks, the survey of the legal landscape in Banks
is equally applicable to Carpenter’s petition because the
Pennsylvania Supreme Court did not end its practice of
relaxing waiver rules in death penalty cases until 1998. See
Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998)
("While it has been our ‘practice’ to decline to apply
ordinary waiver principles in capital cases, we will not
longer do so in PCRA appeals."). Therefore, the claims in
Carpenter’s S 2254 petition that had not yet been raised in
the state courts at the time of the District Court decision
were not exhausted, and it was a mistake for the District
Court to treat these claims as procedurally defaulted.
Instead, it should have dismissed Carpenter’s "mixed"
petition without prejudice.

D.

Subsequent developments, however, permit us to
entertain those claims in this appeal. Although some of the

                                13


claims in Carpenter’s petition were not exhausted at the
time of the District Court’s decision, the Commonwealth
has expressly waived the requirement of exhaustion with
respect to these claims. We accept that waiver and
accordingly may consider two categories of claims in this
appeal.

The first consists of those claims that had been properly
presented to the state courts at the time of the District
Court decision. Based on our review of the record, these
claims are: (1) that trial counsel was ineffective in failing to
object at the guilt phase to testimony implying that
Carpenter had a prior criminal record [DC 1; Carp.X; A.III];7
(2) that trial counsel was ineffective because he did not
adequately prepare Carpenter for his trial testimony and
did not question Carpenter adequately when he testified
[DC 7, 8; Carp.XI; A.II]; (3) that the jury was improperly
precluded from giving exculpatory and mitigating effect to
Carpenter’s drug and alcohol use [DC 11; Carp. XII; A.IV];
(4) that the notes of testimony from the trial and capital
sentencing proceedings are not full and accurate and
thereby deprived Carpenter of meaningful appellate review
[DC 25; Carp.XVI]; (5) that the penalty-phase instructions
unconstitutionally suggested that the jury had to be
unanimous about any mitigating circumstance before it
could be given effect in the sentencing decision 8 [DC 12;
Carp.II; C.VIII]; (6) that the sentencing jury was prevented
from considering and giving effect to relevant mitigating
evidence when the trial court gave an incorrect charge on
duress [DC 4, 14; Carp.VI]; and (7) that Carpenter was
denied the effective assistance of counsel when his attorney
failed to object on state-law grounds to an allegedly
_________________________________________________________________

7. "DC 1" means this was Claim #1 in the District Court’s first opinion.
"Carp.X" means this was Issue X in Carpenter’s brief in this appeal.
"A.III" means this was issue A.III in the Commonwealth’s brief in this
appeal.

8. The Commonwealth asserts that this claim was not raised to the
District Court, but we view paragraph 12L of Carpenter’s S 2254 petition
as raising this issue. However, because we hold that Carpenter’s
sentence cannot stand for another reason, the question whether this
issue is properly before us is of no consequence.

                                14


erroneous answer given by the trial judge in response to a
question asked by the jury.

The second category of claims consists of those that were
contained in the original or amended habeas petition but
that had not been properly presented to the state courts at
the time of the District Court decision. These claims are: (1)
that trial counsel was ineffective in failing to call an
eyewitness who would have provided exculpatory evidence9
[DC 16; Carp.VII; B.I; C.XI]; (2) that the Eighth and
Fourteenth Amendments were violated because the trial
court provided the jury with inaccurate sentencing
information about parole and counsel made no effort to
correct the trial court’s error10[DC 5, 15; Carp.III; A.VI;
B.III;C.XII]; and (3) that trial counsel was ineffective in
failing to investigate, develop, and present significant
mitigating evidence11 [DC 3, 24; Carp.I; A.V, B.II, C.XIII].

In this appeal, Carpenter also advances claims that he
never presented to the District Court but that he did
present (unsuccessfully) to the state courts in his second
PCRA petition. Since the District Court had no opportunity
to review these claims, the District Court did not err in
failing to render any decision concerning them. As a result,
we have no basis for reversing the decision of the District
Court with respect to these claims. The claims that are not
properly before us are: (1) that trial counsel was ineffective
in failing adequately to counter the prosecution’s evidence
of an aggravating circumstance [Carp.I]; (2) that trial
counsel was ineffective because he made an inadequate and
harmful closing argument [Carp.I; C.VII]; (3) that the sole
aggravating circumstance found is unconstitutional
_________________________________________________________________

9. The Commonwealth asserts that, in the District Court, Carpenter
argued only that the eyewitness would have corroborated Carpenter’s
testimony and not that the eyewitness’s testimony would have been
helpful in other ways. We discuss that issue infra at pp. 23-24.

10. We view this claim as subsumed with the claim raised in the state
courts.

11. Because we hold that Carpenter’s sentence cannot stand for another
reason, we find it unnecessary to reach this ineffective assistance claim,
and thus we need not decide which portions of the argument are
properly before us.

                                15


because it was based on an unconstitutional prior
conviction [Carp.IV; C.V]; (4) that the sole aggravating
circumstance in this case is unconstitutionally vague
[Carp.V; C.VI]; (5) that Emmil was an unreliable witness
and that counsel provided ineffective assistance with
respect to this witness [Carp.VIII; C.III]; (6) that trial
counsel was ineffective in failing to object to opinion
testimony of parole officer Jefferies [Carp.IX; C.IV]; (7) that
trial counsel was ineffective in failing to object to a variety
of errors [Carp.XIII]; (8) that Carpenter was denied the
effective assistance of counsel on direct appeal[Carp.XIV;
C.IX]; (9) and that Carpenter is entitled to habeas relief
because of the cumulative prejudicial effect of the errors
[Carp.XV; C.X].

III.

We turn to the merits of Carpenter’s guilt-phase claims
that are properly before us for review.12 We will discuss
these claims seriatim, but since most of them involve
allegations of the ineffectiveness of trial counsel, we will
first discuss the test for ineffective assistance claims.

In order for a defendant to gain relief based on a
constitutional claim that his counsel was ineffective, the
defendant must satisfy the two-pronged test announced in
Strickland v. Washington, 466 U.S. 668 (1984). The
defendant must show "(1) that counsel’s representation fell
below an objective standard of reasonableness and (2) that
there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been
different." United States v. Nino, 878 F.2d 101, 103 (3d Cir.
1989) (citing Strickland, 466 U.S. at 687-96). Both
Strickland prongs must be met in order to merit relief. Nino,
878 F.2d at 104.

With regard to the first prong, the Supreme Court has
instructed that "[t]he proper measure of attorney
performance" is "reasonableness under prevailing
_________________________________________________________________

12. In so doing, we apply the pre-AEDPA version of 28 U.S.C. S 2254,
because Carpenter filed his petition before the effective date of AEDPA.
See Henderson v. Frank, 155 F.3d 159, 163 (3d Cir. 1998).

                                16


professional norms," Strickland, 466 U.S. at 688, that
"[j]udicial scrutiny of counsel’s performance must be highly
deferential," and that "a court must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance." Id. at 689.
With regard to the second prong, a reasonable probability
is one that is "sufficient to undermine confidence in the
outcome." Id. at 694.

Under the pre-AEDPA version of 28 U.S.C. S 2254, a state
court’s legal conclusion regarding either prong of the
Strickland test must be reviewed de novo. See Berryman v.
Morton, 100 F.3d 1089, 1094 (3d Cir. 1996). State court
findings of fact, however, are presumed correct if there was:
(1) a hearing on the merits of a factual issue, (2) made by
a state court of competent jurisdiction, (3) in a proceeding
to which the petitioner and the state were parties, (4) and
the state court’s determination is evidenced by a written
finding, opinion, or other reliable and adequate written
indicia. See 28 U.S.C. S 2254(d); Reese v. Fulcomer, 946
F.2d 247, 254 (3d Cir. 1991). If these requirements are met,
" ‘[t]he underlying facts about counsel’s performance are
entitled to the presumption of correctness under 28 U.S.C.
S 2254(d), if fairly supported by the record.’ " Id. (citation
omitted)

Where, as in this case, the District Court has not held an
evidentiary hearing or engaged in independent fact finding
and the evidence is limited to that contained in the state
court record, our review of the District Court’s decision is
plenary. See Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir.
1989); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993).
With these standards in mind, we now consider Carpenter’s
claims.

A.

Carpenter argues that his trial counsel was ineffective
because he did not immediately object to testimony that
implied that Carpenter had a prior criminal record. The
prosecution called as a witness Carpenter’s parole officer
Donald M. Jefferies, who testified about a conversation he
had with Carpenter after Taylor attacked him with a

                                17


hatchet. At the beginning of his testimony, Jefferies stated
that he was employed as a parole agent by the
Pennsylvania Board of Parole. He later testified that he
warned Carpenter not to try to get even with Taylor.
According to Jefferies, he said something like:"[Y]ou can’t
do it by yourself, this is what we have police for. This is
what my job is to help you out with the situation ." NT-II at
50 (emphasis added). Carpenter argues that any reasonable
juror would conclude from this testimony that Carpenter
had a criminal record sufficiently serious to require that he
be monitored on parole.

Trial counsel did not immediately object to Jefferies’
testimony, but instead objected three witnesses later.
Counsel explained that he did not hear the testimony
because Carpenter was talking to him at the time and that
he objected when someone brought the statements in
question to his attention. Although the trial judge believed
that Jefferies’s statements might have been somewhat
prejudicial, the judge did not think that the prejudice was
severe enough to justify a mistrial. The judge offered to give
a curative instruction, but Carpenter’s attorney declined
because he thought that the instruction would do more
harm than good. In this appeal, Carpenter argues that his
trial counsel was ineffective, not because he refused a
curative instruction, but because of his initial failure to
object.

On direct appeal, Carpenter contended that the
disclosure of Jeffries’s occupation and his acquaintance
with Carpenter tainted the trial, but the Pennsylvania
Supreme Court rejected that argument, concluding that
this information resulted in "little, if any, prejudice" since
there "there are an infinite variety of ways that[Carpenter]
might otherwise know a person who was a parole officer."
Commonwealth v. Carpenter, 515 A.2d at 535. In his first
PCRA petition, Carpenter returned to this ground,
contending that his trial attorney had rendered ineffective
assistance by failing to object to the testimony in question,
but the Pennsylvania Supreme Court again disagreed. The
Court reasoned that the ineffective assistance claim
necessarily failed in view of its holding on direct appeal that
Carpenter had not been prejudiced by Jefferies’s

                                18


statements. Commonwealth v. Carpenter, 617 A.2d at 1266.
The District Court similarly rejected this claim, noting that
counsel eventually objected and moved for a mistrial and
that the alleged prejudice was "at best speculative."
Carpenter v. Vaughn, 888 F. Supp. at 648.

We see no merit in this claim. First, we do not think that
Carpenter has established that counsel’s handling of this
matter fell below the minimally acceptable constitutional
standard. No evidence has been called to our attention that
contradicts counsel’s testimony that Carpenter was talking
to him and distracted him when the testimony in question
came in, and the record clearly shows that counsel
subsequently addressed the issue by making an objection
and moving for a mistrial. While it is obviously important
for a trial attorney to maintain concentration on the
testimony of adverse witnesses, we cannot say that
counsel’s momentary distraction, under the circumstances,
was enough to render his performance constitutionally
deficient. Moreover, we agree with the Pennsylvania
Supreme Court and the District Court that the prejudice
prong of Strickland is not met. Jeffries’s comments do not
"undermine confidence in the outcome" of the trial.
Strickland, 466 U.S. at 694.

B.

Carpenter next contends that trial counsel was ineffective
in (a) preparing Carpenter to testify and (b) questioning him
when he took the stand. When Carpenter testified, he did
so largely in a narrative fashion, and he made some
damaging statements. He admitted that he had a desire to
attack Taylor after Taylor hit him with the hatchet; that he
had slept with another woman when he was mad at Emmil;
that he had lied to the police; and that he had urged
another witness to lie to the police. Most important,
Carpenter testified that Emmil had told him that she was
about to take a police polygraph test. (The results of the
polygraph, however, were not disclosed.)

In an evidentiary hearing in the first PCRA proceeding,
Carpenter and his attorney testified about their pre-trial
preparation. According to Carpenter, his attorney spent

                                19


little time with him before trial. Carpenter testified that his
attorney met with him twice for a total of 15 minutes and
that a defense investigator met with him for about an hour.
Tr. of PCRA Proceeding 7/20/89, at 7-9, 29. Trial counsel,
however, testified that he met with Carpenter numerous
times, that he had "quite lengthy discussions about his
testimony," and that Carpenter also gave him"extensive
notes. Id. at 51. Trial counsel stated that Carpenter insisted
on the defense that Emmil had stabbed Taylor. Id . at 52-
53. Trial counsel testified that he told Carpenter that this
story did not seem as believable as Emmil’s and that he
mentioned an alternative defense but that Carpenter"was
quite clear, I’m sure, the whole way through that this was
his approach and there were no other alternatives." Id. at
54.

The PCRA court and the state supreme court plainly
credited the testimony of Carpenter’s attorney. The state
courts noted that Carpenter "was very familiar with the
criminal justice system and there was extensive preparation
of [Carpenter] for this trial." Commonwealth v. Carpenter,
617 A.2d at 1270. The state supreme court added:"Under
such circumstances, we agree that counsel cannot be
blamed for [Carpenter’s] voluntary decision to expand his
prepared testimony and make damaging remarks." Id.

Carpenter contends that these findings are not
adequately supported by the record. Carpenter argues that,
although his attorney testified that he met with him at
length, "there is no evidence that trial counsel spent any
time preparing Mr. Carpenter to testify." Appellant’s Br. at
165. Carpenter also maintains that "there is no evidence to
support the state court’s claim that Mr. Carpenter’s
damaging statements resulted from a decision to‘expand
his prepared testimony.’ " Id.

We believe that the findings of the state courts are
adequately supported by the testimony of Carpenter’s
attorney. As noted, Carpenter’s trial attorney testified that
he and Carpenter had "quite lengthy discussions about his
testimony." Tr. of PCRA Proceeding 7/20/89 at 51. See also
id. at 52. While it does not appear that counsel stated
directly that the damaging statements about which
Carpenter now complains were not included in the
                                20


testimony that counsel and Carpenter discussed, that is a
fair inference from the record.

We also note that some of the damaging testimony now
cited by Carpenter would very likely have come out on
cross-examination even if Carpenter’s testimony had been
presented in closely controlled question-and-answer form.
For example, a cross-examiner would very likely have
elicited that Carpenter wanted to strike back at Taylor after
Taylor hit him with a hatchet and that Carpenter had lied
to the police. While Emmil’s out-of-court statement that she
had taken a polygraph would not have been admissible,
there is nothing in the record to suggest that Carpenter’s
attorney had any advance warning that Carpenter would
recount that statement.

In view of the testimony of Carpenter’s attorney, which
the state courts reasonably credited, we reject Carpenter’s
claim that his attorney fell below the minimum
constitutional standard in preparing him to testify and in
conducting the direct examination.

C.

Carpenter contends that the trial court erred in failing to
give an instruction on intoxication at the guilt or penalty
stage and that the trial counsel was ineffective for failing to
attempt to argue intoxication. The Pennsylvania Supreme
Court rejected these arguments in the first PCRA petition,
finding that there was no evidence at trial that Carpenter
was drunk or unaware of what he was doing. See
Commonwealth v. Carpenter, 617 A.2d at 1268. Since there
was no evidence to support a request for an instruction on
intoxication, the Court reasoned, Carpenter’s counsel was
not ineffective in failing to ask for the charge or argue the
issue to the jury. The District Court rejected this claim on
similar grounds. See Carpenter v. Vaughn, 888 F. Supp. at
653.

Carpenter argues that the evidence at trial raised the
possibility that he was intoxicated at the time of the
stabbing. Thus, he argues, his attorney should have
requested, and the court should have given, an intoxication
instruction, which might have persuaded the jury that he

                                21


lacked the capacity to form the intent to kill and therefore
might have resulted in a verdict of third-degree, rather than
first-degree, murder. In response, the Commonwealth
contends that the evidence showed that Carpenter was
clearly not intoxicated at the time of the murder. Moreover,
the Commonwealth argues that trial counsel was not
ineffective since, even if he could have pursued an
intoxication defense, it would have been tactically unwise to
argue alternative theories to the jury -- i.e., that Carpenter
did not commit the murder but that, if he did, he was
intoxicated at the time.

Under 18 Pa. Cons. Stat. S 308, intoxication is not a
defense to a criminal charge "except that evidence of such
intoxication or drugged condition of the defendant may be
offered by the defendant whenever it is relevant to reduce
murder from a higher degree to a lower degree of murder."
The Pennsylvania Supreme Court has interpreted this to
mean that "in order for intoxication to reduce murder from
a higher to a lower degree, it must be proven that the actor
was overwhelmed to the point of losing his faculties and
sensibilities." Commonwealth v. Breakiron, 571 A.2d 1035,
1041 (Pa. 1990) (citing Commonwealth v. Reiff , 413 A.2d
672, 674 (Pa. 1980)).

In Commonwealth v. Reiff, supra, the evidence at trial
showed that the defendant had consumed two-and-one-half
quarts of beer and smoked marijuana the night of a
murder. The Supreme Court of Pennsylvania affirmed the
trial court’s refusal to give an intoxication instruction:

       Drinking and intoxication are not synonymous terms;
       therefore a jury instruction on intoxication is not
       warranted because evidence of drinking is introduced
       at trial. It is the intention of the legislature that a
       defendant be overwhelmed or overpowered by alcoholic
       liquor to the point of losing his or her faculties or
       sensibilities before an intoxication instruction be given.

        In the instant case, there was no evidence that
       appellant was intoxicated or had lost his faculties or
       sensibilities. In Commonwealth v. Kichline, 468 Pa. 265
       (1975), this Court stated that there must be sufficient
       evidence of intoxication in the record to bring that

                                22


       issue into the case before the trial court is required to
       instruct the jury on an intoxication defense. As there
       was insufficient evidence of intoxication in the record,
       the trial court did not err in refusing to instruct the
       jury on an intoxication defense.

Id. at 674.

In the present case, Emmil testified that she and
Carpenter had smoked marijuana on the evening of the
killing. She also testified that they had drunk together for
about an hour. Trial Tr., 1/18/84 at 22-24. Likewise,
Carpenter and others testified that he had drunk several
beers and smoked some marijuana on the night in
question. The Pennsylvania Supreme Court held, however,
that this evidence was insufficient to justify an intoxication
instruction. We cannot review this decision on a question of
state law, and this holding dooms Carpenter’s ineffective
assistance claim, since his attorney cannot have been
ineffective for failing to request an instruction that was
unavailable.
Moreover, at the PCRA evidentiary hearing, trial counsel
provided a perfectly reasonable tactical explanation for his
decision not to attempt to mount an intoxication defense.
After observing that he did not think the defense was
"available,"counsel added:

       And I certainly wouldn’t stand up to the jury and argue
       it, given Mr. Carpenter’s story, the testimony he gave
       as to his version of events.

PCRA Hearing, 7/20/89, at 54. This was a reasonable
tactical decision.

D.

Carpenter argues that he was denied the effective
assistance of counsel because his trial attorney failed to
call an eyewitness named Frankie Stewart who could have
helped his case either by corroborating his testimony to
some degree or by providing an entirely different defense
theory. Before trial, Stewart provided three accounts of the
Taylor homicide. AB at 140-43; Carpenter v. Vaughn, 888 F.

                                23


Supp. at 662-64. Stewart’s first version, as recounted in a
police report, was as follows:

       [Stewart] was at 49 S. Penn St. and was leaving. She
       saw the victim walking with a [Caucasian] male and a
       [Caucasian] female. She saw the female turn to the
       victim and make a motion. The victim then fell to the
       position in which he was lying upon the arrival of the
       officers. The suspects then walked south on the
       sidewalk to King St. and turned west on King. A few
       seconds thereafter, the officers arrived.

Id. at 662-63.

Stewart’s second account was also set out in a police
report:

       FRANKIE STEWART . . . was leaving her parents’ home
       located directly across from 50 S. Penn St. when she
       observed the victim fall over backwards to the sidewalk
       and observed two persons walking away from the
       victim. Frankie Stewart stated that she had . . . seen
       the two actors in the area before and that she could
       i.d. the two actors if she saw them again. She stated
       that she knew the one actor as BOB--that he’s always
       down at PAUL BROWN’S place on W. Princess St.

Id. at 663.

Stewart’s third version was recounted in a verbatim
statement taken during police questioning:

       Q Will you tell me what you heard or observed?
       A I was coming out of my parents’ home at 49 S.
       Penn St. I was going toward my car. I looked across the
       street and I seen a man on the ground. Two white
       people walked around the corner. During this time a
       police officer was coming down the street. I hailed him
       down. That’s it.

       . . . .

       Q At any time did you see these 2 white persons near
       where Jimmy had fallen?

       A No.

                                24


       Q Do you know a HELEN RUTH EMEL [sic]?

       A Yes.

       Q Do you know a JAMES CARPENTER?

       A Yes, I do but I didn’t know that was his last name
       till I saw it in the paper.

       . . . .

       Q Did you see those people in the area?

       A Nope.

Id. at 663-64.

In a recent affidavit, Stewart stated, "I was at my mom’s
house and I had been drinking a lot. I was just starting to
leave my mom’s house and I saw Jimmy Lee [Taylor] fall.
James Carpenter was not in the immediate area when
Jimmy Lee [Taylor] was stabbed." Appellant’s Br. at 143
n.89.

Carpenter argues that Stewart’s statement that a white
woman turned toward Taylor and made "a motion" just
before he fell would have corroborated his testimony that
Emmil stabbed Taylor since Emmil is white. But by the
same token, any of the three accounts provided by Stewart
before trial would have contradicted Carpenter’s testimony
in important respects. Carpenter, an African American,
claimed that Emmil had killed Taylor, and both he and
Emmil agreed that they were the only other persons present
at the time. Therefore, testimony from Stewart either 1) that
two Caucasians were present when Taylor was stabbed, 2)
that "BOB" had killed Taylor,13 or 3) that Carpenter was not
in the area when Taylor was killed, would have been
fundamentally inconsistent with Carpenter’s account.
Moreover, Stewart’s admission that she "had been drinking
a lot" probably would have undermined the value of her
testimony. Under these circumstances, it was objectively
reasonable for Carpenter’s counsel not to call Stewart as a
_________________________________________________________________

13. As the District Court noted, " ‘Bob’ was later located by the York
police and was able to account for his whereabouts at the time of the
murder." Carpenter v. Vaughn, 888 F. Supp. at 665.

                                25


witness to "corroborate" his client, and Carpenter was not
prejudiced by the lack of such "corroboration."

We also see no merit in Carpenter’s alternative
suggestion that counsel was ineffective in failing to present
a defense in which Stewart would testify and Carpenter
would either not testify at all or testify differently. We have
found no indication that this argument was made in the
state courts or the District Court. But in any event, in view
of the inconsistencies in Stewart’s accounts and the
testimony of Carpenter’s attorney that Carpenter was
insistent on telling his story (and Carpenter’s briefs do not
point to any contradictory evidence), the decision not to
pursue the alternative approach now suggested did not
violate Carpenter’s constitutional right to the effective
assistance of counsel.

E.

Carpenter argues that the trial transcripts are inaccurate
and that this prevented him from obtaining meaningful
appellate review. However, the Pennsylvania Supreme Court
noted that "[t]he PCRA court . . . found as a fact that the
trial transcript had not been altered by anyone to
[Carpenter’s] detriment." Commonwealth v. Carpenter, 725
A.2d at 169. See also Commonwealth v. Carpenter , No.
2014, at 34-35 (Pa. Ct. Comm. Pl. 7/31/90) (App. Vol. I, at
103-04) ("The defendant is obsessed with the idea that
[there was a conspiracy to alter the transcript] . . . .
However, this was categorically denied by the defendant’s
trial counsel . . . . There is positively no evidence to support
the defendant’s claim."). The District Court gave Carpenter
an opportunity to proffer factual support for this claim, but
Carpenter did not submit any. Carpenter v. Vaughn, 888 F.
Supp. at 668. Even now on appeal, Carpenter provides no
support for this claim. He asks for an evidentiary hearing,
but he fails to specify what in the record is inaccurate or to
state what would be presented at an evidentiary hearing.

We find this claim to be without merit. In Tedford v.
Hepting, 990 F.2d 745 (3d Cir. 1993), we explained:

       Analysis properly begins with the observation that
       plaintiff does not have a constitutional right to a totally

                                26


       accurate transcript of his criminal trial. His
       constitutional rights would be violated only if
       inaccuracies in the transcript adversely affected the
       outcome of the criminal proceeding. And, since the jury
       which convicted plaintiff and sentenced him to death
       acted on the basis of the evidence they saw and heard,
       rather than on the basis of the written transcript of the
       trial--which was, of course, non-existent until after the
       trial was completed--this means that a constitutional
       violation would occur only if the inaccuracies in the
       transcript adversely affected appellate review in the
       state courts. The threshold question, therefore, is . . .
       whether plaintiff has alleged deficiencies in the trial
       transcript substantial enough to call into question the
       validity of the appellate process in the state courts.

Id. at 747.

Here, Carpenter clearly has not "alleged deficiencies in
the trial transcript substantial enough to call into question
the validity of the appellate process in the state courts." Id.
Nor has he alleged that any specific issue for appellate
review was hampered by inaccuracies in the trial transcript.
See id. The state courts’ finding of fact that the trial
transcripts are accurate has a more than adequate basis in
the record. Thus, this claim is without merit.14

The remainder of Carpenter’s guilty-phase claims were
raised in the federal courts for the first time in his appellate
brief to us. Accordingly, these claims are not part of the
S 2254 petition that he filed in the District Court and are
not properly before us for review.

IV.

We now turn to the penalty phase of Carpenter’s trial.
Although several arguments relating to the performance of
_________________________________________________________________

14. We also note that Carpenter’s prior appellate counsel stated in a
declaration: "Mr. Carpenter . . . believed that there was a conspiracy . . .
to alter the case transcripts and to hurt him. He complained of days of
testimony being appended to the record after the trial ended. His
ramblings were illogical and made no sense to me." Id. (quoting
Declaration of C.N. Patterson P2).

                                27


trial counsel at the penalty phase are properly before us, we
find it necessary to address only one -- the claim that trial
counsel was ineffective in failing to object to the judge’s
answer to a question asked by the jury shortly before it
returned its verdict of death. We hold that this claim has
merit and requires that the writ be granted as to
Carpenter’s sentence unless a new penalty-phase trial is
held.

Under Pennsylvania law, a defendant convicted of first-
degree murder had to be sentenced to death or life
imprisonment, 18 Pa.C.S.S 1102(a), and a defendant
sentenced to life could not be paroled, 42 Pa.C.S.S 9756(c);
61 Pa.C.S. S 331.21; Commonwealth v. Yount , 615 A.2d
1316 (Pa.Super. 1992), unless the sentence was first
commuted by the governor to a term of years. See Myers v.
Gillis, 93 F.3d 1147, 1154 (3d Cir. 1996). As previously
noted, the aggravating circumstance charged in this case
was that Carpenter had "a significant history of felony
convictions involving the use or threat of violence to the
person." 42 Pa. C. S.S 9711(d)(9). To establish this
aggravating circumstance, the prosecution proved that
Carpenter had previous convictions for third-degree murder15
and assault by a prisoner. The jury was also aware that
Carpenter had been released on parole after serving time
for the prior murder and that he had threatened to get
revenge on the prosecution’s chief witness.

After a period of deliberation, the jury sent out a note
inquiring: "Can we recommend life imprisonment with a
guarantee of no parole." The judge responded as follows:

       The answer is that simply, no absolutely not. Moreover,
       ladies and gentlemen, you talk about recommendation.
       I don’t know exactly what you mean, but I assume you
       remember what I told you before, that you as a jury at
       this point are not making a recommendation of death
       or life imprisonment. I hope you understand that.

        You folks are actually fixing the sentence, and not
_________________________________________________________________

15. Under Pennsylvania law, third degree murder is any murder not of
the first degree (an intentional killing) or second degree (felony murder).
See 18 Pa.C.S. S 2502.

                                  28


       the Court. It is not the recommendation. Whether you
       mark on there death, that’s the sentence and there is
       nothing this Court can do about it. The Court has
       nothing to do on it. If you mark life imprisonment,
       there is nothing this Court can do about it or wants to
       do about it, because that decision is entirely up to you
       as members of the jury. So, I hope you understand
       that it is not a recommendation, it is a sentence that
       will bind all of us here to whatever you fix and it’s
       going to have to be very simply death or life
       imprisonment. And the question of parole is absolutely
       irrelevant. I hope you understand that.

Trial counsel did not object to this answer or request
clarification or amplification. After less than nine minutes
of additional deliberation, the jury returned a verdict of
death.

In the appeal from the   denial of Carpenter’s first PCRA
application, Carpenter   contended that his attorney was
ineffective in failing   to object to the judge’s answer to the
jury. The Pennsylvania   Supreme Court responded to this
argument as follows:

       As can be seen, the trial court was concerned that the
       jury may have misunderstood that they were setting
       the sentence and not making a recommendation. We
       think he adequately explained that the jury sets the
       sentence and whatever it may be will be carried out
       without interference from any other source. To
       underscore this, he repeated that the court would not
       tamper with their verdict and that the question of
       parole is irrelevant. Read in context, we find nothing
       improper with this explanation and reject Appellant’s
       tortured reading of three words.

Commonwealth v. Carpenter, 617 A.2d at 1269.

Commenting on this analysis, the District Court stated:

       The problem with   this reading of the jury’s question is
       that its obvious   import is overlooked. The jury did not
       just ask whether   it was recommending a sentence; it
       asked whether it   could recommend a particular
       sentence, one of   life imprisonment without parole. The

                                  29


       rather obvious concern reflected in such a question is
       not a recommendation, but whether petitioner would
       be paroled if a death sentence was not returned. Unlike
       the Supreme Court of Pennsylvania, we do not find this
       interpretation of the jury’s question and the trial
       court’s response to be a "tortured reading" of the
       question and answer, nor do we see this reading as
       petitioner’s overzealous attempt to "manufacture an
       error."

Carpenter v. Vaughn, 888 F.Supp. at 645-50.

We must agree with the District Court in this regard.16
While it was prudent for the trial judge, in answering the
jury’s question, to emphasize that its verdict was not
merely a recommendation, it is apparent that the jury’s
concern centered on the availability of a sentence of life
imprisonment without parole. And the judge’s initial
response -- "The answer is that simply, no absolutely not"
-- clearly conveyed the misleading impression that such a
sentence was not available. In a case in which it had been
proven that the defendant was a homicidal recidivist who
had previously been paroled and in which it was apparent
that the jury was concerned about the possibility of future
parole, this was a potentially devastating message, and
there are strong grounds for believing that it had a
devastating effect in this case. It was also, as noted, a plain
misstatement of Pennsylvania law, under which a person
serving a life sentence that has not been commuted to a
term of years may not to be paroled. See Commonwealth v.
Clark, 710 A.2d 31, 35 (Pa. 1998).
_________________________________________________________________

16. The first sentence is somewhat unclear as to whether the "no
absolutely not" applies to the "recommendation" part of the question or
the "life imprisonment with a guarantee of no parole" part, but we
suggest that common sense makes it more likely that the judge was
talking about the latter. This supposition is strengthened by the fact that
the second sentence begins with the word "moreover," and then proceeds
to explain that the jury is not "recommending" anything. "Moreover"
implies that the Court was moving on to a new topic and if the
"recommendation" issue was a new topic, then the first sentence was
about the "life with no parole" point. The court did conclude its answer
by stating that "the question of parole is absolutely irrelevant," but that
does not do anything to undercut the belief that it is possible.

                                30


On receiving the jury’s question, the trial judge appears
to have focused on the jury’s use of the word "recommend"
and to have overlooked the issue of parole. This was a
situation in which assistance from counsel might very well
have corrected the problem. The trial judge knew that
Carpenter could not be paroled while serving a life
sentence. If Carpenter’s attorney had told the judge that his
answer inadvertently conveyed the contrary impression and
thus misstated Pennsylvania law on a point that could play
a critical role in the jury’s decision, we have little doubt
that the judge would have corrected his answer. But
counsel did not object. The failure to object under these
circumstances fell below an objective standard of
reasonableness, and there is a reasonable probability that,
but for counsel’s error, the jury would not have returned a
verdict of death. See Strickland, 466 U.S. at 687-96. We
recognize that the trial judge ended his answer to the jury
by stating that "the question of parole is absolutely
irrelevant," but as a practical matter, this brief and weak
statement was not likely to erase the highly prejudicial
impact of the false impression that Carpenter might be
paroled if he was not executed.

The comments made by the Pennsylvania Supreme Court
in Carpenter’s first PCRA appeal do not convince us either
that counsel’s failure to object was objectively reasonable or
that an objection would not have assisted his client. As
previously noted, in response to the argument that the trial
judge’s answer misled the jury to believe that parole would
be available if Carpenter was sentenced to life
imprisonment, the Pennsylvania Supreme Court stated that
Carpenter was relying on "a tortured reading of three
words" (i.e., "no absolutely not") and that"[r]ead in context"
there was "nothing improper with [the judge’s] explanation."
617 A.2d 1269. The Pennsylvania Supreme Court also
stated that Carpenter’s argument took "a phrase out of
context and read into it his own meaning." Id .

We recognize that it can be argued that the state
supreme court’s remarks in effect approved the response
that the trial judge gave to the jury -- i.e., held that the
response was not erroneous as a matter of state law-- but
we reject this reading because it squarely conflicts with the

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governing state statutes. As noted, under state law,
Carpenter could not have been paroled while serving a life
sentence. The state supreme court can hardly have meant
to suggest that it was proper for the trial judge to give the
jury false information about this important feature of state
law.

Instead, we believe that the state supreme court was
addressing the argument that was presented to it-- that
Carpenter’s attorney was constitutionally ineffective in
failing to object to the judge’s answer -- and that the state
supreme court’s comments were meant to say one or both
of the following: (a) that counsel’s performance was not
objectively unreasonable because the "three words" at issue
were unimportant when read in "context" or (b) that
Carpenter was not prejudiced by those "three words,"
again, because they were unimportant when read in
"context." Commonwealth v. Carpenter, 617 A.2d at 1269.

In this pre-AEDPA case, we must conduct a de novo
review of the application of both prongs of the Strickland
standard, and for the reasons already explained, we must
respectfully disagree with the Pennsylvania Supreme
Court’s evaluation of the significance of the "three words" in
question. Unlike the state supreme court, we think that,
particularly when read in the context of the evidence
presented to the jury and the evident concern that
prompted the jury’s question, those words carried a great
potential for harm. We also think that counsel made a very
serious mistake in failing to realize the danger presented by
the trial judge’s answer and in failing to point out the
problem to the judge. The jury’s question should have put
counsel on alert, and the first words out of the judge’s
mouth in response should have triggered deafening alarm
bells in counsel’s head.

We thus hold that the failure of trial counsel to object
based on state law17 to the judge’s answer to the jury’s
_________________________________________________________________

17. The Appellee’s brief (at 21 (brackets added)) states:

       The Commonwealth assumes, for purposes of this brief, that
       counsel may be found ineffective for purposes of federal habeas
       corpus review when the allegation of ineffectiveness is premised

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question violated Carpenter’s constitutional right to the
effective assistance of counsel. To dispel any possible
confusion, we emphasize that our holding is not based on
any other federal constitutional right or on Simmons.18 We
accept the precise argument that Carpenter made in his
first PCRA appeal: that the failure of his trial counsel to
object based on state law constituted ineffective assistance
of counsel.

In light of this holding, we see no need to reach any of
the other contentions that are properly before us and that
relate to alleged ineffective assistance at the penalty phase.19
Nor is it necessary to consider whether the penalty-phase
instructions regarding mitigating circumstances provide a
_________________________________________________________________

       exclusively upon the failure to raise a state law claim. Compare
       Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992), cert. denied, 508 U.S.
       912 (1993) (pre-AEDPA), with id. at 807-08 (Newman, J.,
       dissenting), and with Sellan v. Kuhlman, 63 F.Supp.2d 262 (E.D.N.Y.
       1999) (per Trager, J.)(post-AEDPA)"[overruled on this point by Sellan
       v. Kuhlman, 261 F.3d 303,309 (2d Cir. 2001)].

The contrary argument seems implausible, but the issue has not been
briefed, and for present purposes, it is sufficient to accept the
Commonwealth’s assumption.

18. As previously noted, see supra at 8-9 & n. 4, Simmons and its
progeny concern a capital defendant’s due process right to an instruction
at the penalty phase on the possibility of parole when the prosecution
puts the defendant’s future dangerousness in issue and the only
alternative to the death penalty is life imprisonment without parole. Our
decision here is not based on due process but on the right to the
effective assistance of counsel, and our decision is not based on the
prosecution’s raising of the issue of the defendant’s future
dangerousness but on defense trial counsel’s failure to object when the
trial judge gave a dangerously misleading response to the jury’s question
about the availability of a life sentence without parole.

19. In the brief filed on Carpenter’s behalf in this appeal, his present
attorneys argue Carpenter’s trial counsel did not provide effective
representation at the penalty phase because he allegedly did not
adequately investigate, develop, and present mitigating evidence. We
have no reason to believe that at any future penalty phase proceeding
Carpenter’s present attorneys will not diligently investigate, develop, and
present, and will not be given the opportunity to present, any such
evidence.

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ground for relief under Mills v. Maryland, 486 U.S. 367
(1988), and Frey v. Fulcomer, 132 F.3d 916 (3d Cir. 1997),
cert. denied, 524 U.S. 911 (1998). Mills and Frey provide
guidance with respect to the instructions that should be
given at any subsequent penalty phase trial. Likewise, we
do not find it necessary to address the instruction on
duress given at the penalty phase. The state courts
recognized that this charge was inappropriate, and thus
there is no reason to believe that the same charge will be
given at any subsequent penalty phase trial.

V.

For the reasons explained above, we affirm the decision
of the District Court in part and reverse in part and remand
for the sole purpose of granting a writ of habeas corpus
unless, within a time to be set by the District Court, a new
penalty phase trial is held or the petitioner is resentenced
to a term of life imprisonment.
A True Copy:
Teste:

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

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