                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2003

Banks v. Horn
Precedential or Non-Precedential: Precedential

Docket 99-9005




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PRECEDENTIAL

       Filed January 14, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-9005

GEORGE E. BANKS,
       Appellant

v.

MARTIN HORN, Commissioner, PA Dept of Corrections;
JAMES PRICE, Superintendent of State Correctional
Institute Greene; RAYMOND J. COLLERAN,
Superintendent State Correctional Institute Waymart;
COMMONWEALTH OF PENNSYLVANIA

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 99-cv-00438)
District Judge: Honorable James F. McClure, Jr.

Argued April 2, 2001 and
On Remand from the United States Supreme Court
by Order of June 17, 2002

Before: SLOVITER, ROTH and RENDELL, Circuit Ju dges

(Filed: January 14, 2003)




       Albert J. Flora, Jr., Esq. [ARGUED]
       33 West South Street
       Wilkes-Barre, PA 18701
       William Ruzzo, Esq.
       400 Third Avenue, Suite 109
       Kingston, PA 18704
        Counsel for Appellant
       George E. Banks

       Scott C. Gartley, Esq. [ARGUED]
       David W. Lupas, Esq.
       Office of District Attorney
       200 North River Street
       Luzerne County Courthouse
       Wilkes-Barre, PA 18711
        Counsel for Appellee
       Commonwealth of PA

       Peter Goldberger, Esq.
       Law Office of Peter Goldberger
       50 Rittenhouse Place
       Ardmore, PA 19003-2276
        Counsel for Amicus-Appellant
       PA Association of Criminal Defense
       Lawyers

       Louis M. Natali, Esq. [ARGUED]
       Turner & McDonald
       1725 Spruce Street
       Philadelphia, PA 19103
        Counsel for Amicus-Appellants
       PA Association of Criminal Defense
       Lawyers and Louis M. Natali

OPINION OF THE COURT

RENDELL, Circuit Judge:

In Horn v. Banks, 122 S. Ct. 2147 (2002), the United
States Supreme Court directed us to analyze whether Mills
v. Maryland, 486 U.S. 367 (1988), could be retroactively
applied under the principles articulated in Teague v. Lane,
489 U.S. 288 (1989), for purposes of our collateral review of

                                2


George Banks’s conviction and sentence. As a result, the
Court reversed that portion of our opinion in Banks v.
Horn, 271 F.3d 527 (3d Cir. 2001), dealing with Teague. We
now conclude that Mills did not announce a new rule of
constitutional law for retroactivity purposes, and thus that
our analysis and resolution of Banks’s Mills claims was
proper. Accordingly, we will endorse the reasoning set forth
in the remainder of our prior opinion.

I.

George Banks was sentenced to death for the murder of
thirteen people in Wilkes-Barre, Pennsylvania, in 1982. His
conviction and sentence were upheld by the Supreme Court
of Pennsylvania on direct appeal, Commonwealth v. Banks,
521 A.2d 1 (Pa. 1987), and on appeal for state post-
conviction relief. Commonwealth v. Banks, 656 A.2d 467
(Pa. 1995). Banks then sought a writ of habeas corpus in
the Middle District of Pennsylvania, which was denied in
August of 1999. Banks v. Horn, 63 F. Supp. 2d 525 (M.D.
Pa. 1999).

On October 31, 2001, we reversed the District Court and
granted Banks a provisional writ of habeas corpus, finding
meritorious Banks’s argument that his death sentence was
unconstitutional. Banks v. Horn, 271 F.3d 527 (3d Cir.
2001) ("Banks I"). Specifically, we found that the sentencing
phase instructions and forms violated Mills v. Maryland,
486 U.S. 367 (1988). In Mills, the United States Supreme
Court reversed a death sentence where there was a
substantial probability that a reasonable jury could have
understood the sentencing instructions and forms to
disallow the consideration of mitigating factors not
unanimously found to exist. Id. at 384. In Banks I, we
concluded that based on the language of the instructions
and verdict slip employed in Banks’s penalty phase, a
reasonable possibility existed that the jurors believed they
were precluded from considering mitigating evidence they
had not found unanimously. Banks I, 271 F.3d at 547-551.

In reaching that conclusion, we were presented with the
question of whether Mills was applicable for purposes of our
collateral review of Banks’s conviction and sentence under

                                3


Teague v. Lane, 489 U.S. 288 (1989). In Teague, the
Supreme Court revolutionized the structure for analyzing
the retroactivity of criminal procedure decisions, holding
that, with rare exception, prisoners may not rely on"new
rules" -- essentially, rules not settled by pre-existing
precedent -- for purposes of federal habeas corpus review.
Id. at 299-301. Teague thus directed that new decisions of
constitutional criminal procedure that are favorable to a
prisoner are usually inapplicable once the prisoner has
fully exhausted her direct appeals, including the filing of a
writ of certiorari to the United States Supreme Court. Id.

Teague’s new rule of nonretroactivity was premised at
least in part on a respect for the workings of state courts
and state judges appropriate to our federal system. In
particular, the Supreme Court has noted that by validating
"reasonable, good-faith interpretations of existing
precedents made by state courts," the principles of
nonretroactivity established in Teague "effectuate[ ] the
States’ interest in the finality of criminal convictions and
foster[ ] comity between federal and state courts." Gilmore v.
Taylor, 508 U.S. 333, 340 (1993); see also Teague, 489 U.S.
at 308.

Because Banks’s conviction became final in October of
1987,1 eight months before the Supreme Court issued its
decision in Mills, one of the Commonwealth’s primary
arguments before us in Banks I was that Mills was not
applicable to Banks’s petition for habeas relief. We
disagreed. We reasoned that, although Teague"retroactivity
is a ‘threshold question,’ " Banks I , 271 F.3d at 541
(quoting Teague, 489 U.S. at 300), because the
Pennsylvania Supreme Court decision itself applied Mills
(albeit doing so unreasonably), neither Teague , nor its
underlying purposes, required us to perform a retroactivity
analysis of Mills. Banks I, 271 F.3d at 541-43. Instead, we
_________________________________________________________________

1. A conviction becomes final for Teague purposes "when the availability
of direct appeal to the state courts has been exhausted and the time for
filing a petition for a writ of certiorari has elapsed or a timely filed
petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390
(1994). Banks’s conviction was therefore final when the Supreme Court
denied certiorari on October 5, 1987. Banks v. Pennsylvania, 484 U.S.
873 (1987).

                                4


found it necessary only to review the merits of the
Pennsylvania Supreme Court’s decision, concluding:

       Teague teaches that the federal courts in habeas
       corpus proceedings should be reluctant to apply new
       rules of federal jurisprudence in state court cases
       decided before such new rules were handed down.
       Principles of comity and finality counsel that we
       maintain a circumscribed scope of habeas review. Here,
       however, . . . the Pennsylvania Supreme Court applied
       Mills. We are examining the application of Mills, not
       because we wish to impose a new rule not considered
       by the Pennsylvania Supreme Court, but as the court
       in fact did consider and apply it. In such a situation,
       Teague is not implicated. Accordingly, we need ask
       only whether the Pennsylvania Supreme Court’s
       application of Mills should be disturbed under [the
       appropriate standard of review].

Id. at 543 (citations omitted). Accordingly, we held that
resolution of the retroactivity of Mills under Teague was
unnecessary, and proceeded directly to our examination of
the merits of the Pennsylvania Supreme Court’s application
of Mills to the facts presented in Banks’s appeal. As noted
above, we resolved that question in Banks’s favor, holding
that the sentencing phase jury instructions and forms were
clearly unconstitutional, and therefore that the
Pennsylvania Supreme Court’s decision finding otherwise
involved an unreasonable application of established
Supreme Court precedent. Id. at 551.

In Horn v. Banks, 122 S. Ct. 2147, 2148 (2002) ("Banks
II"), the Supreme Court concluded otherwise, explicitly and
emphatically holding that "federal courts must address the
Teague question when it is properly argued by the
government." In doing so, the Court focused on its
statements in Caspari v. Bohlen, 510 U.S. 383 (1994), that
Teague’s "nonretroactivity principle prevents a federal court
from granting habeas corpus relief to a state prisoner based
on a" new rule, and thus that "if the State . . . argue[s] that
the defendant seeks the benefit of a new rule of
constitutional law, the court must apply Teague before
considering the merits of the claim." Id. at 389 (emphasis in
original). Applying these principles, the Supreme Court

                                5


found that it was "incumbent upon" us to "perform a
Teague analysis before granting respondent relief under
Mills," and that we "erred in concluding that [we] did ‘not
need to focus on anything other than the reasoning and
determination of the Pennsylvania Supreme Court.’ " Banks
II, 122 S. Ct. at 2150 (quoting Banks I, 271 F.3d at 541).
Accordingly, the Supreme Court "reverse[d][our] holding
that ‘Teague is not implicated’ by this case, and remand[ed]
for further proceedings consistent with" its decision. Banks
II, 122 S. Ct. at 2151 (quoting Banks I, 271 F.3d at 543).2

II.
We note at the outset that our determination as to the
merits of Banks’s Mills claim was not reviewed by the
Supreme Court. The Court thus did not vacate our previous
decision but only reversed that portion of our opinion that
concluded that a Teague analysis was unnecessary for our
review of Banks’s habeas petition. Accordingly, the sole
issue presently before us is whether our application of Mills
on habeas review of Banks’s sentence was improper under
the Supreme Court’s nonretroactivity jurisprudence. 3 To
provide background for the analysis, we first briefly discuss
the Court’s decision in Mills itself, then turn to an
examination of the Supreme Court’s retroactivity
framework.

A.

In Mills, the Court considered the constitutionality of a
set of jury instructions, as well as the implementing verdict
forms, that could be understood to prevent the
_________________________________________________________________

2. On July 12, 2002, Banks filed a Petition for Rehearing. The Supreme
Court recalled its issuance of judgment on July 17, but on August 26,
the Court denied rehearing and reissued judgment.

3. This is not the first time we have been presented with the issue of the
retroactivity of Mills. In Zettlemoyer v. Fulcomer, 923 F.2d 284, 306 n.19
(3d Cir. 1991), we "decided to reach the merits of the Mills claim . . .
[but] did not expressly hold whether Mills falls outside the Teague bar."
Frey v. Fulcomer, 132 F.3d 916, 920 n.4 (3d Cir. 1997). In Frey, we
noted the issue but did not reach it because the Commonwealth failed
to raise it, and we deemed it waived. Id.

                                6


consideration of mitigating circumstances if the jury was
not unanimous in finding the existence of such
circumstances. Mills, 486 U.S. at 371. That is, "even if
some or all of the jurors were to believe some mitigating
circumstance or circumstances were present, unless they
could unanimously agree on the existence of the same
mitigating factor, the sentence necessarily would be death."4
Id. (emphasis in original). The Court cited the following two
possibilities as constitutionally problematic:

       If eleven jurors agree that there are six mitigating
       circumstances, the result is that no mitigating
       circumstance is found. Consequently, there is nothing
       to weigh against any aggravating circumstance found
       and the judgment is death even though eleven jurors
       think the death penalty wholly inappropriate. . . .

        [In] a situation just as intuitively disturbing: All 12
       jurors might agree that some mitigating circumstances
       were present, and even that those mitigating
       circumstances were significant enough to outweigh any
       aggravating circumstance found to exist. But unless all
       12 could agree that the same mitigating circumstance
       was present, they would never be permitted to engage
       in the weighing process or any deliberation on the
       appropriateness of the death penalty.

Id. at 373-74 (citations omitted). Noting that imposition of
the death penalty under such circumstances would"be the
height of arbitrariness," id. at 374, it went on to state:

       It is beyond dispute that in a capital case the sentencer
       may not be precluded from considering, as a mitigating
       factor, any aspect of a defendant’s character or record
       and any of the circumstances of the offense that the
       defendant proffers as a basis for a sentence less than
       death. The corollary that the sentencer may not refuse
_________________________________________________________________

4. The Maryland Court of Appeals upheld the sentence of death. See Mills
v. State, 527 A.2d 3 (1987). Although it agreed that "if the statute and
form were read as petitioner suggested, jurors would be improperly
prevented from giving due consideration to mitigating evidence," see
Mills, 486 U.S. at 372 (emphasis in original), the Court of Appeals
adopted a construction of the statute exonerating it from the potential
constitutional issue. See Mills, 527 A.2d at 12-17.

                                7


       to consider or be precluded from considering any
       relevant mitigating evidence is equally well established.

Id. at 374-75 (first and third emphasis added) (quotations
and citations omitted). The Court then reiterated the
constitutional problem at hand: "[I]f petitioner is correct, a
jury that does not unanimously agree on the existence of
any mitigating circumstance may not give mitigating
evidence any effect whatsoever, and must impose the
sentence of death." Id. at 375. The Court stated that its
existing jurisprudence prohibited any "barrier to the
sentencer’s consideration of all mitigating evidence. . . .
[w]hatever [its] cause." Id. As the Court found a "substantial
probability" that reasonable jurors would have understood
themselves as being precluded from considering mitigating
evidence not found unanimously, the Court reversed Mills’s
sentence of death, concluding: "Under our cases, the
sentencer must be permitted to consider all mitigating
evidence. The possibility that a single juror could block
such consideration, and consequently require the jury to
impose the death penalty, is one we dare not risk." Id. at
384.

B.

Again, the sole issue before us is whether the rule
enunciated in Mills is retroactively applicable to Banks’s
appeal. Retroactivity analysis is governed by the principles
first articulated in Teague v. Lane, in which the Supreme
Court held that "[u]nless they fall within an exception to the
general rule, new constitutional rules of criminal procedure
will not be applicable to those cases which have become
final before the new rules are announced." Teague, 489
U.S. at 310. Application of this principle of retroactivity
proceeds in three steps. See, e.g., Caspari, 510 U.S. at 390.
First, we must determine when the defendant’s conviction
became final. Id. Second, we must survey the legal
landscape to determine whether or not the case in question
announced a new rule of constitutional law. Id. Finally, if
we determine that the case did announce a new rule, we
must consider whether it fits into one of the two exceptions
to nonretroactivity. Id. Those exceptions are reserved for (1)
rules that "place[ ] a class of private conduct beyond the

                                8


power of the State to proscribe, . . . or address[ ] a
substantive categorical guarantee accorded by the
Constitution, such as a rule prohibiting a certain category
of punishment for a class of defendants because of their
status or offense," or (2) "watershed rules of criminal
procedure implicating the fundamental fairness and
accuracy of the criminal proceeding." Saffle v. Parks, 494
U.S. 484, 494-95 (1990) (citations and internal quotations
omitted). Because the exceptions find rather narrow
applicability, however, the typically dispositive step in the
Teague retroactivity analysis is the determination of
whether the implicated constitutional principle qualifies as
a "new rule."

In Teague itself, the Court admitted that it is "often
difficult to determine" whether a case announces a new
rule, and explicitly avoided any "attempt to define the
spectrum of what may or may not constitute a new rule for
retroactivity purposes." Teague, 489 U.S. at 301. The
Supreme Court has further recognized that the inquiry is
particularly difficult where the decision in question merely
extended the reasoning of prior cases. See, e.g., Saffle, 494
U.S. at 488; Graham v. Collins, 506 U.S. 461, 467 (1993);
Butler v. McKellar, 494 U.S. 407, 412-13 (1990); see also
Mackey v. United States, 401 U.S. 667, 695 (1971) (Harlan,
J., concurring in judgments in part and dissenting in part)
(noting the "inevitable difficulties" in distinguishing new
rules from the application of old rules in analogous cases).

Perhaps as a result of the inevitable difficulty in
articulating one test to govern all possible retroactivity
scenarios, the Supreme Court has "stated variously the
formula for determining when a rule is new." O’Dell v.
Netherland, 521 U.S. 151, 156 (1997). Under the Court’s
original explication in Teague, "a case announces a new
rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government."
Teague, 489 U.S. at 301 (emphasis added). "To put it
differently," the Teague Court explained,"a case announces
a new rule if the result was not dictated by precedent
existing at the time the defendant’s conviction became
final." Id. (emphasis in original); see also, e.g., Graham, 506
U.S. at 467 ("A holding constitutes a new rule within the

                                9
meaning of Teague if it breaks new ground, imposes a new
obligation on the States or the Federal Government, or was
not dictated by precedent existing at the time the
defendant’s conviction became final." (quotations omitted)
(emphasis in original)). Similarly, the Court has stated that
previous precedents must not simply "inform, or even
control or govern" the analysis, but instead must"compel
the rule" sought by the defendant. Saffle, 494 U.S. at 491;
see also Butler, 494 U.S. at 415 (noting that it is
insufficient that a decision was considered to be controlled
or governed by prior opinions).

At the same time, the Court has focused on the decision-
making process confronting state court judges. See, e.g.,
O’Dell, 521 U.S. at 156 ("At bottom, . . . the Teague
doctrine ‘validates reasonable, good-faith interpretations of
existing precedents made by state courts even though they
are shown to be contrary to later decisions.’ " (quoting
Butler, 494 U.S. at 414)); Graham, 506 U.S. at 467; Teague,
489 U.S. at 308. And, in recent decisions, the Court has
approached the inquiry from the standpoint of a
"reasonable jurist." In Lambrix v. Singletary, 520 U.S. 518
(1997), for instance, the Court asked whether the
"unlawfulness of [the defendant’s] conviction was apparent
to all reasonable jurists." Id. at 527-28; see also id. at 531
(examining whether a "reasonable jurist . . . could have
reached a conclusion different from" the one ultimately
reached by the Supreme Court); id. at 526 (stating that our
inquiry is to "determine whether a state court considering
the defendant’s claim at the time his conviction became
final would have felt compelled by existing precedent to
conclude that the rule he seeks was required by the
Constitution" (quotations omitted)); O’Dell , 521 U.S. at 166
("Teague asks state court judges to judge reasonably, not
presciently."). In sum, "unless reasonable jurists hearing
petitioner’s claim at the time his conviction became final
‘would have felt compelled by existing precedent’ to rule in
his favor, we are barred from doing so now." Graham, 506
U.S. at 467 (quoting Saffle, 494 U.S. at 488).

                                10


III.

We hold that Mills did not announce a new rule of
constitutional law for retroactivity purposes, and
accordingly that our application of Mills on our habeas
review of Banks’s sentence was completely proper. 5 There
are four aspects to our reasoning: (1) the legal landscape at
the time of Banks’s conviction, (2) the Supreme Court’s
decision in Mills itself, (3) the relevant post-Mills decisions
of the Supreme Court, and (4) the opinions of our sister
Courts of Appeals who have addressed whether Teague
bars retroactive application of Mills.

Our "first and principal task" under Teague is to survey
the legal landscape to determine whether Mills "was
dictated by then existing precedent . . . that is,[whether]
the unlawfulness [of the situation in Mills ] was apparent to
all reasonable jurists." Lambrix, 520 U.S. at 527-28. As
discussed above, in Mills the Supreme Court reversed a
sentence of death where there was "a substantial
probability that reasonable jurors, upon receiving the
judge’s instructions in th[e] case, and in attempting to
complete the verdict form as instructed, . . . thought they
were precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of " any
particular circumstance. Mills, 486 U.S. at 384. We find
highly persuasive Banks’s argument that, given the legal
landscape, Mills represented merely an application of the
_________________________________________________________________

5. Because we conclude that Mills did not announce a new rule under
Teague, we need not address Banks’s arguments regarding whether Mills
falls within one of the two exceptions to nonretroactivity. We note,
however, that in Williams v. Dixon, 961 F.2d 448, 454-56 (4th Cir. 1992),
the Court of Appeals for the Fourth Circuit held that Teague does not
bar application of Mills (and McKoy v. North Carolina, 494 U.S. 433
(1990)) on habeas because they are "watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the
criminal proceeding." Graham, 506 U.S. at 478 (quotations omitted); see
also Gall v. Parker, 231 F.3d 265, 323 (6th Cir. 2000) (holding that Mills
did not announce a new rule under Teague but also finding that, even
if Mills did announce a new rule, it falls within the second Teague
exception); Jermyn v. Horn, No. 97-634, 1998 WL 754567, at *36-39
(M.D. Pa. Oct. 27, 1998) (holding that Mills is a new rule but falls within
the second Teague exception).

                                11


well established constitutional rule that the Eighth
Amendment prohibits all barriers to the sentencer’s
consideration of any and all mitigation evidence in the
penalty phase of a capital trial.

By the time Banks’s conviction became final in 1987, the
legal landscape was primarily defined by Supreme Court
case law spanning nearly a dozen years.6 We begin our
examination of this precedent with the Supreme Court’s
decision in Woodson v. North Carolina, 428 U.S. 280 (1976),
which struck down North Carolina’s mandatory death
penalty statute. Of the many constitutional flaws the
plurality found in North Carolina’s capital sentencing
structure,7 one particularly notable defect was its "failure to
allow the particularized consideration of relevant aspects of
the character and record of each convicted defendant before
the imposition upon him of a sentence of death." Woodson,
428 U.S. at 303; see also Roberts (Stanislaus) v. Louisiana,
428 U.S. 325 (1977) (striking down Louisiana’s mandatory
death penalty statute). The plurality reiterated that death
as a penalty is distinguishable in kind from all other
penalties, and held that "the fundamental respect for
humanity underlying the Eighth Amendment requires
consideration of the character and record of the individual
offender and the circumstances of the particular offense as
a constitutionally indispensable part of the process of
inflicting the penalty of death." Woodson, 428 U.S. at 304
(citations omitted); see also Roberts, 428 U.S. at 333-34
(plurality opinion) (noting that the Constitution requires a
"focus on the circumstances of the particular offense and
the character and propensities of the offender"); Jurek v.
_________________________________________________________________

6. It is worth noting that although the Supreme Court has instructed
that "the reasonable views of state courts are entitled to consideration"
as part of the legal landscape, Caspari v. Bohlen, 510 U.S. 383, 395
(1994), both parties have focused exclusively on Supreme Court
precedent. At any rate, we believe that here the Supreme Court’s case
law adequately depicts the legal landscape at the time of Banks’s
conviction.

7. The Court’s opinion in Woodson was a plurality of three -- Justices
Powell, Stevens, and Stewart. Justices Brennan and Marshall both
concurred in the judgment given their opinion that capital punishment
inherently violates the Eighth and Fourteenth Amendments.

                                12


Texas, 428 U.S. 262, 271 (1976) (plurality opinion) (stating
that the Eighth and Fourteenth Amendments require that
the sentencer be allowed to consider mitigating
circumstances).

The Court articulated the full import of Woodson ’s
constitutional directive more clearly in Lockett v. Ohio, 438
U.S. 586 (1978), in which it struck down a statute that
restricted the range of mitigating factors that could be
considered by a jury.8 Whereas Woodson involved a statute
precluding any consideration of mitigating evidence, Lockett
involved somewhat more complex questions: "which facets
of an offender or his offense [are] relevant in capital
sentencing," and "what degree of consideration of relevant
facets" does the Constitution require. Id. at 604. The Court
responded, in expansive language, that:

       [T]he Eighth and Fourteenth Amendments require that
       the sentencer . . . not be precluded from considering,
       as a mitigating factor, any aspect of a defendant’s
       character or record and any of the circumstances of
       the offense that the defendant proffers as a basis for a
       sentence less than death.

Id. (first emphasis added). The Court explained that:

       Given that the imposition of death by public authority
       is so profoundly different from all other penalties, we
       cannot avoid the conclusion that an individualized
       decision is essential in capital cases. The need for
       treating each defendant in a capital case with that
       degree of respect due the uniqueness of the individual
       is far more important than in noncapital cases. . . . .

        There is no perfect procedure for deciding in which
       cases governmental authority should be used to impose
       death. But a statute that prevents the sentencer in all
       capital cases from giving independent mitigating weight
       to aspects of the defendant’s character and record and
       to circumstances of the offense proffered in mitigation
_________________________________________________________________

8. Lockett’s plurality opinion was written by Chief Justice Burger and
joined by Justices Powell, Stevens, and Stewart. Justice Brennan took
no part in the case, and Justice Marshall again concurred on the ground
that capital punishment is always unconstitutional.

                                13


       creates the risk that the death penalty will be imposed
       in spite of factors which may call for a less severe
       penalty. When the choice is between life and death,
       that risk is unacceptable and incompatible with the
       commands of the Eighth and Fourteenth Amendments.

Id. at 605 (emphasis added). In Lockett , the Court stated in
unequivocal terms that to "meet constitutional
requirements, a death penalty statute must not preclude
consideration of relevant mitigating factors." Id. at 608.

Four years later, in Eddings v. Oklahoma, 455 U.S. 104
(1982), the constitutional rule articulated in Lockett was
first adopted and applied by a majority of the Court. In
Eddings, the statute in question allowed defendants to
present evidence of any mitigating circumstance-- unlike
the statute at issue in Lockett -- but the trial judge found
that he was unable to consider certain mitigating evidence
as a matter of law. Id. at 113. The Supreme Court reversed,
describing Lockett as requiring that "the sentencer in
capital cases must be permitted to consider any relevant
mitigating factor," id. at 112, and holding that:

       The limitations placed by these courts upon the
       mitigating evidence they would consider violated the
       rule in Lockett. Just as the State may not by statute
       preclude the sentencer from considering any mitigating
       factor, neither may the sentencer refuse to consider, as
       a matter of law, any relevant mitigating evidence . In
       this instance, it was as if the trial judge had instructed
       the jury to disregard the mitigating evidence proffered
       on his behalf. The sentencer . . . may determine the
       weight to be given relevant mitigating evidence. But
       they may not give it no weight by excluding such
       evidence from their consideration.

Id. at 113-115 (emphasis added). Thus, in Eddings, the
Lockett plurality’s constitutional rule was solidified as a
settled and prominent feature of the Supreme Court’s death
penalty jurisprudence; indeed, the Court thereafter
characterized the rule as one of the two prerequisites to a
valid death sentence imposed by the Eighth Amendment.
See California v. Brown, 479 U.S. 538, 541 (1987); see also
Penry v. Lynaugh, 492 U.S. 302, 318 (1989) (stating that by

                                14


early 1986 "it was clear from Lockett and Eddings" that the
Constitution prohibited a State from "prevent[ing] the
sentencer from considering and giving effect to evidence
relevant to the defendant’s background or character or to
the circumstances of the offense that mitigate against
imposing the death penalty"). The legal landscape at the
time of Banks’s conviction, however, was further shaped by
three additional cases in which the Court had occasion to
apply the Lockett/Eddings rule.

First, in Skipper v. South Carolina, 476 U.S. 1 (1986), the
Supreme Court relied on Lockett and Eddings to reverse the
defendant’s death sentence after the trial judge ruled that
certain mitigating evidence was inadmissible and prohibited
the sentencing jury from considering it. The Court began by
reiterating its "well established" Lockett /Eddings rule,
stating:

       There is no disputing that . . . in capital cases the
       sentencer may not be precluded from considering, as a
       mitigating factor, any aspect of a defendant’s character
       or record and any of the circumstances of the offense
       that the defendant proffers as a basis for a sentence
       less than death. Equally clear is the corollary rule that
       the sentencer may not refuse to consider or be
       precluded from considering any mitigating evidence.

Id. at 4 (quotations and citations omitted). The Court then
addressed the sole question before it: "whether the
exclusion from the sentencing hearing of the testimony
petitioner proffered . . . deprived petitioner of his right to
place before the sentencer relevant evidence in mitigation of
punishment." Id. Noting that it could"hardly be disputed"
that the exclusion did have that effect, id., the Court
concluded that "[t]he exclusion by the state trial court of
relevant mitigating evidence impeded the sentencing jury’s
ability to carry out its task of considering all relevant facets
of the character and record of the individual offender." Id.
at 8.

A year later, in California v. Brown, 479 U.S. 538 (1987),
the Court again affirmed the constitutional principles
established in Lockett and Eddings, but this time upheld
the underlying death sentence.9 In Brown, the defendant
_________________________________________________________________

9. The Supreme Court has made clear that Brown was not dictated by
Lockett and Eddings. See Saffle, 494 U.S. at 494. Nonetheless, the

                                15


challenged the constitutionality of "an instruction informing
jurors that they ‘must not be swayed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion or
public feeling.’ " Brown, 479 U.S. at 540. The Court began
by reiterating that the Eighth Amendment requires that
capital defendants be allowed to introduce any relevant
mitigating evidence, and further that consideration of such
evidence is a " ‘constitutionally indispensable part of the
process of inflicting the penalty of death.’ " Brown, 479 U.S.
at 541 (quoting Woodson, 428 U.S. at 304). Applying these
principles to the instruction before them, however, the
Court found that it merely "prohibit[ed] juries from basing
their sentencing decisions on factors not presented at the
trial, and irrelevant to the issues at the trial," limitations
fully consistent with the Constitution’s requirement that
the jury be allowed to consider any mitigating evidence.
Brown, 479 U.S. at 543; see also Saffle, 494 U.S. at 488-95
(holding that Teague precluded the defendant’s
constitutional challenge to a jury instruction requiring
jurors to avoid the influence of sympathy in sentencing).

Finally, in Hitchcock v. Dugger, 481 U.S. 393 (1987), the
Supreme Court unanimously reversed the defendant’s
death sentence where an "advisory jury was instructed not
to consider, and the sentencing judge refused to consider,
evidence of nonstatutory mitigating circumstances." Id. at
398-99. The Court held that such a circumstance"did not
comport with the requirements of Skipper, Eddings, and
Lockett," id. at 399 (citations omitted), which established
that "the sentencer may not refuse to consider or be
precluded from considering any relevant mitigating
evidence." Id. at 394 (quotations omitted). The Court
concluded, "[O]ur cases hold that the exclusion of
mitigating evidence of the sort at issue here renders the
death sentence invalid." Id. at 399; see also Burger v.
Kemp, 483 U.S. 776, 790 n.7 (1987) (affirming, in dicta, the
constitutional principles established in Lockett and
Eddings); Sumner v. Shuman, 483 U.S. 66, 75-76 (1987)
(same).
_________________________________________________________________

decision constitutes part of the legal landscape prior to Banks’s
conviction becoming final.

                                16


Although Banks relies primarily on the Lockett /Eddings
line of cases, we mention another Supreme Court case,
Andres v. United States, 333 U.S. 740 (1948), that was
cited in Mills and relied on by another Court of Appeals in
deciding this issue. See Mills, 486 U.S. at 377 & n.9; Gall
v. Parker, 231 F.3d 265, 323 (6th Cir. 2001). Andres
involved an assessment and interpretation of a federal
death penalty statute, and the question of whether a trial
court’s unanimity instructions pursuant to that statute
were erroneous. Id. at 746. The statutory scheme was
structured such that the finding of guilt meant the
automatic imposition of the death penalty unless the
verdict was qualified by the phrase "without capital
punishment." Id. The government argued that the jury’s
determination as to guilt was conclusive as to the death
penalty unless the jury then unanimously decided to
qualify the verdict. Id. The Supreme Court opined, however,
that the proper construction required that the "jury’s
decision upon both guilt and whether the punishment of
death should be imposed must be unanimous." Id. at 749.
That is, the Court required that the jury consider and be
unanimous that death should be the penalty imposed.
Although it recognized that "the interpretation .. . urged by
the Government cannot be proven erroneous with
certainty," the Court found its construction"more
consonant with the general humanitarian purpose of the
statute and the history of the Anglo-American jury system."
Id. at 748-49. The Court then held that the instruction
given to the jury by the District Court conveyed the
erroneous interpretation of the statute. Id. at 749-52.
Under the instructions given, the Court concluded, the jury
might have erroneously but "reasonably conclude[d] that, if
they [could not] all agree to grant mercy, the verdict of guilt
must stand unqualified." Id. at 752. Accordingly, the Court
overturned the sentence and ordered a new trial. Id.

Clearly, the Andres decision took place within a different
statutory context and, in our view, is not a model of clarity.
However, because it, like Mills, involved jury instructions on
unanimity in a capital case, Andres certainly plays some
role in the relevant legal landscape -- a conclusion
reinforced by the Court’s citation to it in Mills itself. See
Mills, 486 U.S. at 377 & n.9. At the very least, Andres

                                17


invokes a number of themes that, significantly, are
consistent with and complimentary to the Court’s later
constitutional death penalty jurisprudence. For instance,
Andres indicates a concern for particular clarity in capital
jury instructions, noting that doubts "should be resolved in
favor of the accused." Andres, 333 U.S. at 752; see also
Mills, 486 U.S. at 377. Further, it is particularly noteworthy
that the upshot of the Court’s decision was that the statute
and jury instructions were interpreted to avoid a situation
in which a juror could be prevented -- by operation of a
requirement for unanimity to avoid the death penalty, and,
accordingly, by the views of other jurors -- from giving
effect to his or her belief that death was an inappropriate
sentence under particular circumstances. Andres , 333 U.S.
at 748-52.

We agree with Banks that this legal landscape -- as
exemplified by Lockett and Eddings, but also including at
least Andres, Woodson, Skipper , Brown, and Hitchcock --
strongly supports Banks’s position that the Court in Mills
did not develop any new principle of law, but instead
merely relied upon clear and well established constitutional
rules, such that Mills was compelled and dictated by the
legal landscape, and no reasonable jurist could have
reached a different result. Insofar as the landscape
evidenced the Supreme Court’s unwavering recognition and
insistence that the Eighth Amendment prohibits any barrier
to the sentencer’s consideration of mitigating evidence, it
provided a clear indication that a jury instruction that
could work to prevent a juror from considering any and all
mitigating evidence, whether because of unanimity
requirements or otherwise, would be constitutionally infirm.

In reaching this conclusion, we are not unmindful of the
difficulty of employing Teague’s mandates to divine whether
the legal landscape supports a finding that a rule is or is
not new, given the Court’s various formulations of the
measuring stick for determining whether a particular case
does or does not announce a new rule. It is not precisely
clear just how short the "step" must be between existing
precedent and the current announcement, or how strong
the pull of precedent must be in a certain direction. There
certainly must be some gradation or difference, or the rule

                                18


in question would not be even arguably new. Thus, a
decision that does extend reasoning may nonetheless be
viewed as not "new" under Teague. The Supreme Court has
acknowledged as much when it has noted the difficulty of
determining whether a new rule was announced where"a
decision extends the reasoning of our prior cases." Saffle,
494 U.S. 488; see also Graham, 506 U.S. at 467; Butler,
494 U.S. at 412-13. To read certain of the operative terms
the Court has employed, such as "dictated" and
"commanded," narrowly, such that they would require
express direction from the existing precedent, would be to
unrealistically require courts to have anticipated all future
scenarios in order for later cases to not announce a new
rule. Another term the Court has used, "compel," has been
defined as to "force, drive, [or] impel." Webster’s Third New
Int’l Dictionary 463 (1993). This seems not only to be a
more functional description of the test, but it also fits nicely
with the concept of the "reasonable jurist" that is
referenced in many of the Court’s recent cases in this area.
That is, we ask whether the existing precedent set forth a
rule that all reasonable jurists would agree impels or drives
the result in the new situation presented. Here, the existing
case law clearly provided that sentencers could not be
prevented from considering any and all mitigating evidence.
In Mills, the Court merely recognized that the perceived
need for unanimity could constitute one such
unconstitutional barrier. Even if one were to question
whether the result was "dictated" or "commanded" by the
constitutional rule itself, it surely was compelled in the
sense that previous pronouncements would constrain all
reasonable jurists to conclude the situation in Mills to be
unconstitutional. It is perhaps this shading that
distinguishes our view of Mills from that of our concurring
colleague.10

The Supreme Court’s reasoning and rhetoric in Mills itself
follows form from the legal landscape, and bolsters the view
that it was not announcing a new constitutional rule.
Initially, we note that "[i]t is significant" that Mills did
_________________________________________________________________

10. In her concurrence, Judge Sloviter focuses on whether Mills was
"commanded" or "dictated" by the legal landscape in concluding that it
announced a new rule.

                                19
explicitly and heavily rely on controlling precedent. Lambrix,
520 U.S. at 528. Unlike the situation in Lambrix , in which
the Supreme Court found a "new rule" in part because the
underlying decision cited only a single case -- and with a
"cf." signal at that, see id. at 528-29 -- Mills is replete with
references to controlling precedent; the Court frequently
cited to and quoted from Lockett, Eddings, Skipper, and
Hitchcock. See Mills, 486 U.S. at 374-76. Moreover, the
Court used language in its analysis that does not merely
state, but indeed exhorts, the rich precedent compelling its
reasoning and result. The Court’s precise wording bears
repeating here:

       It would certainly be the height of arbitrariness to allow
       or require the imposition of the death penalty under
       the circumstances . . . postulated by petitioner . .. . It
       is beyond dispute that in a capital case " ‘the sentencer
       [may] not be precluded from considering, as a
       mitigating factor, any aspect of a defendant’s character
       or record and any of the circumstances of the offense
       that the defendant proffers as a basis for a sentence
       less than death.’ " Eddings v. Oklahoma , 455 U.S. 104,
       110, 102 S. Ct. 869, 874, 71 L.Ed.2d 1 (1982), quoting
       Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954,
       2964-2965, 57 L.Ed.2d 973 (1978) (plurality opinion)
       (emphasis in original). See Skipper v. South Carolina,
       476 U.S. 1, 4, 106 S. Ct. 1669, 1670-1671, 90 L.Ed.2d
       1 (1986). The corollary that "the sentencer may not
       refuse to consider or be precluded from considering
       ‘any relevant mitigating evidence’ " is equally "well
       established." Ibid. (emphasis added), quoting Eddings,
       455 U.S., at 114, 102 S. Ct., at 877.

       . . . .

        Under our decisions, it is not relevant whether the
       barrier to the sentencer’s consideration of all mitigating
       evidence is interposed by statute, Lockett v. Ohio,
       supra; Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct.
       1821, 95 L.Ed.2d 347 (1987); by the sentencing court,
       Eddings v. Oklahoma, supra; or by an evidentiary
       ruling, Skipper v. South Carolina, supra. The same
       must be true with respect to a single juror’s holdout
       vote against finding the presence of a mitigating

                                20


       circumstance. Whatever the cause, if petitioner’s
       interpretation of the sentencing process is correct, the
       conclusion would necessarily be the same: "Because
       the [sentencer’s] failure to consider all of the mitigating
       evidence risks erroneous imposition of the death
       sentence, in plain violation of Lockett, it is our duty to
       remand this case for resentencing." Eddings v.
       Oklahoma, 455 U.S., at 117, n., 102 S. Ct., at 878, n.
       (O’Connor, J., concurring).

        The critical question, then, is whether petitioner’s
       interpretation of the sentencing process is one a
       reasonable jury could have drawn from the
       instructions given by the trial judge and from the
       verdict form employed in this case.

Mills, 486 U.S. at 374-76. Given this language, it can
hardly be disputed that Mills did not announce a new rule.11
As the Court recognized, it was well established by the
Lockett/Eddings line of cases that the Constitution
prohibited any barrier to the jury’s consideration of
mitigating evidence, "[w]hatever the cause." Id. at 375. The
relevant cases had never indicated that the source or form
some particular barrier took would be relevant to its
constitutionality; instead they had consistently and
repeatedly prohibited, in clear language, any barrier. See,
e.g., Hitchcock, 481 U.S. at 394 ("[I]n capital cases, the
sentencer may not refuse to consider or be precluded from
considering any relevant mitigating evidence." (quotations
omitted)); Skipper, 476 U.S. at 4 (same); see also, e.g.,
Saffle, 494 U.S. at 491 ("Lockett and Eddings command
that the State must allow the jury to give effect to
mitigating evidence in making the sentencing decision.").
The extent of the relevant holding in Mills, then, was merely
its acknowledgment of a conclusion already required by the
governing constitutional rules: that if a jury instruction and
verdict form, because of its unanimity requirements,
_________________________________________________________________

11. Although it has been noted that for Teague purposes an opinion’s
language is not always "conclusive," see, e.g., Butler, 494 U.S. at 415,we
nonetheless find the Court’s rhetoric and reasoning in Mills to be unique
-- providing extensive "evidence tending to prove" that Mills did not
announce a new rule. O’Dell, 521 U.S. at 161 n.2.

                                21


precluded juror consideration of any and all mitigation
evidence, the resulting death sentence would be
unconstitutional. See McKoy v. North Carolina , 494 U.S.
433, 438 (1990) ("[A]llowing a ‘holdout’ juror to prevent the
other jurors from considering mitigating evidence violated
the principle established in Lockett v. Ohio, that a sentencer
may not be precluded from giving effect to all mitigating
evidence." (citation omitted)). That these constitutional
principles were settled before Mills is further evidenced by
the Maryland Court of Appeals decision reversed by the
Supreme Court in Mills itself, as the disagreement between
the Court of Appeals’ majority and dissenting opinions was
unrelated to the underlying constitutional rules that govern
capital sentencing. See Mills, 527 A.2d at 13; id. at 33
(McAuliffe, J., dissenting) ("[T]he majority and I are in
essential agreement as to the basic principles of law that
control in a capital sentencing proceeding. . . . A mitigating
circumstance . . . must be considered by each juror who
believes it to have been proven to exist, irrespective of
whether all jurors agree that it exists."); Mills, 486 U.S. at
372 ("The [Maryland Court of Appeals] did not dispute that
if the statute and form were read as petitioner suggested,
jurors would be improperly prevented from giving due
consideration to mitigating evidence."(emphasis in original));
see also Butler, 494 U.S. at 415 (indicating that actual
disagreement on a constitutional rule provides some
evidence that it is "new" under Teague).

Moreover, we note that recent Supreme Court references
to the Teague test have indicated that the"determinative
question" under Teague is whether reasonable jurists,
reading the case law in existence at the time the conviction
became final, could have concluded that Banks’s
sentencing "was not constitutionally infirm." Graham, 506
U.S. at 477 (emphasis in original); see also id. at 476 ("The
result in a given case is not dictated by precedent if it is
susceptible to debate among reasonable minds, or, put
differently, if reasonable jurists may disagree." (quoting
Stringer v. Black, 503 U.S. 222, 238 (1992) (Souter, J.,
dissenting)). Given the Supreme Court’s reliance on the
Lockett/Eddings rule as an established requirement of the
Eighth Amendment by the time Banks’s conviction became
final, we are persuaded that the relevant rule in Mills was

                                22


"apparent," and that no "reasonable jurist" could have
reached a different conclusion. Lambrix, 520 U.S. at 528;
see also, e.g., Butler, 494 U.S. at 415 (asking whether the
relevant outcome was "susceptible to debate among
reasonable minds"). Indeed, as the settled Lockett/Eddings
rule was a blanket prohibition on barriers to the jury’s
consideration of mitigating circumstances, we find
ourselves unable to construct any analytic framework,
consistent with the legal landscape, under which Mills
could have come out differently. Cf. Lambrix, 520 U.S. at
532 ("There were at least three different . . . approaches
that would have suggested a different outcome."). A failure
to decide Mills as the Court in fact decided it would not just
have taken an "illogical" or "grudging" application of the
Lockett/Eddings rule, Butler, 494 U.S. at 415, it would have
taken a completely untenable one. Any reasonable jurist
"would have felt compelled" to decide Mills accordingly.
O’Dell, 521 U.S. at 156 (quoting Lambrix, 520 U.S. at 527).

While the Commonwealth and our concurring colleague
seize on the fact that there were four dissenting justices in
Mills in arguing that "reasonable jurists" could have differed
on the outcome at the time of that case, a careful reading
of the Mills dissent makes clear that the dissenting justices
did not take issue with the principle that jurors must be
able to consider all mitigating factors without the
requirement of unanimity. The dissenters never questioned
the strong statements by the majority to the effect that the
result in Mills was mandated by the Lockett/Eddings line of
cases. Rather, they viewed the majority as having applied
the wrong test as to the probability that jurors
misunderstood the instructions in the factual setting
presented. See Mills, 486 U.S. at 394 (Rehnquist, J.,
dissenting) ("[T]he question is whether a reasonable juror
operating under the trial court’s instructions would have
considered evidence of mitigating circumstances in a
constitutional manner.").
Our conclusion finds support in the Supreme Court’s
decision in Penry v. Lynaugh, 492 U.S. 302 (1989). In
Penry, the Court considered a challenge to the Texas death
penalty scheme, which limited the jury’s consideration of
the appropriate sentence during a capital trial to resolving

                                23


three "special issues." Id. at 311-12. The precise question
before the Court was whether the defendant’s sentence was
unconstitutional "because the jury was not adequately
instructed to take into consideration all of his mitigating
evidence and because the terms in the Texas special issues
were not defined in such a way that the jury could consider
and give effect to his mitigating evidence in answering
them." Id. at 313. Despite Teague, the Court reversed the
death sentence, finding that the jury instructions and
special issues structure did not adequately allow the jury to
consider the defendant’s mitigating evidence of mental
retardation and an abused childhood. The Court stated that
Lockett and Eddings, along with Jurek v. Texas, 428 U.S.
262 (1976), "dictated" the rule that "Texas juries must,
upon request, be given jury instructions that make it
possible for them to give effect to th[e] mitigating evidence
in determining whether the death penalty should be
imposed." Penry, 492 U.S. at 318-19; see also Graham, 506
U.S. at 475 (indicating that the Lockett/ Eddings line of
cases prohibit situations in which "relevant mitigating
evidence [is] placed beyond the effective reach of the
sentencer," and require that the jury must have a"reliable
means of giving mitigating effect to" the mitigating evidence);12
Saffle, 494 U.S. at 491 (same).

In arguing for the nonretroactivity of Mills, the
Commonwealth invokes two other Supreme Court decisions
handed down after Mills. First, the Commonwealth relies on
the dissenting opinion and one of the concurring opinions
in McKoy v. North Carolina, 494 U.S. 433 (1990), to argue
that reasonable minds could have disagreed on the
_________________________________________________________________

12. Unlike our concurring colleague, we do not view Graham v. Collins as
adding anything of significance to the legal landscape. In Graham, the
Supreme Court decided that, unlike Penry-- in which the Court held
that the "special issues" structure did not give the jury a genuine
opportunity for consideration of diminished capacity attributes such as
mental retardation and an abused childhood -- the"special issues"
structure did place certain mitigating evidence such as youth, family
background and positive character traits within the sentencer’s "effective
reach." Graham, 506 U.S. at 475. Thus, a result in Graham’s favor was
not dictated by Penry and the Penry rule could not be given retroactive
effect.

                                24


outcome in Mills. See also Caspari, 510 U.S. at 395 (noting
that conflicting holdings of state and federal courts
indicates disagreement among reasonable minds); Sawyer v
Smith, 497 U.S. 227, 236-37 (1990) (noting that the fact
that three justices dissented in a prior case casts doubt on
the argument that the holding in that case was compelled
by prior precedent); Miller v. Lockhart, 65 F.3d 676, 686
(8th Cir. 1995) (citing opinions in McKoy). In McKoy, the
Supreme Court affirmed Mills unconditionally and applied it
to North Carolina’s sentencing scheme, holding that the
unanimity scheme there, precisely like the one in Mills,
unconstitutionally precluded jurors from giving effect to
evidence they might believe called for a sentence less than
death. McKoy, 494 U.S. at 439-440. In the dissenting
opinion and one of the concurring opinions, however, four
justices in McKoy expressed some level of disagreement
with the proposition that Mills was merely an application of
the Lockett/Eddings rule. See id. at 452-457 (Kennedy, J.,
concurring in the judgment); id. at 457-471 (Scalia, J.,
dissenting). But see id. at 445-452 (Blackmun, J.,
concurring) (stating that in Mills "[t]he Court concluded that
a rule mandating unanimous agreement before any juror
could consider a particular mitigating factor was forbidden
by [its] decisions in Lockett and Eddings" (citations
omitted)). Despite the Commonwealth’s suggestion
otherwise, we are unconvinced that McKoy evidences
anything but the correctness of our conclusion. The
concurring and dissenting opinions in McKoy are not
controlling authority, and our opinion today is in accord
with the Court’s majority opinions in both Mills and McKoy,
each of which independently makes clear that Mills was
premised on a straight-forward application of settled
constitutional precedent.13
_________________________________________________________________

13. Moreover, to the extent the Commonwealth relies on the McKoy
minority’s view that Mills was not actually decided on Lockett/Eddings
grounds, we are unpersuaded that their argument is particularly
relevant. Asking whether Mills is retroactive in this case is shorthand for
asking whether the rule Banks seeks to have applied on habeas -- that
the Constitution prohibits unanimity instructions that preclude jurors
from giving proper consideration to proffered mitigating evidence -- was
a new rule under Teague given the date his conviction became final. It
is for similar reasons that, as we discuss below, our decision here is not

                                25


Secondly, the Commonwealth places great reliance on the
Supreme Court’s reasoning in Saffle v. Parks, 494 U.S. 484
(1990). In Saffle, the Supreme Court upheld a jury
instruction that required the jury to "avoid any influence of
sympathy" in sentencing, finding that the rule sought by
Saffle, which was grounded in the principles established in
Lockett and Eddings, was a new rule under Teague. Id. at
487. According to the Court, "Lockett and Eddings [did] not
speak directly, if at all, to the issue presented" in Saffle,
"whether the State may instruct the sentencer to render its
decision on the evidence without sympathy." Id. at 490. In
so concluding, the Court noted a distinction between rules
relating "to what mitigating evidence the jury must be
permitted to consider in making its sentencing decision,"
and those relating "to how it must consider the mitigating
evidence." Id. (emphasis in original)."There is a simple and
logical difference," the Court stated, "between rules that
govern what factors the jury must be permitted to consider
in making its sentencing decision and rules that govern
how the State may guide the jury in considering and
weighing those factors in reaching a decision." Id. at 490.
An anti-sympathy instruction does not preclude the jury
from considering any mitigating evidence; it merely
instructs them to consider that evidence without recourse
to sympathy. See id. at 493 ("The State must not cut off full
and fair consideration of mitigating evidence; but it need
not grant the jury the choice to make the sentencing
decision according to its own whims or caprice.").
Accordingly, the Court concluded that Lockett and Eddings
do not prohibit such an anti-sympathy instruction. Id. at
490-94; see also Brown, 479 U.S. at 543 (affirming
constitutionality of an anti-sympathy instruction).
_________________________________________________________________

formally inconsistent with, for instance, the Eighth Circuit’s decision in
Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995), that Mills was a new rule.
Our conclusion that Mills may be retroactively applied on habeas is
essentially an acknowledgment that what Banks seeks (and what Mills
sought) is a clear application of the Lockett /Eddings rule, a
constitutional principle well settled prior to his conviction becoming
final. Thus, it could be argued that it is essentially irrelevant whether or
not the rule under inquiry was actually decided in Mills.

                                26


The Commonwealth, as well as our concurring colleague,
seizes on Saffle’s "what" versus "how" distinction as
supporting its view that Mills was a new rule; in effect, it
argues that jury unanimity requirements made
unconstitutional by Mills are nothing but a rule regarding
how the jury must consider mitigating evidence, i.e., the
jury must consider it unanimously. While perhaps
viscerally appealing, upon reflection this linguistic
shorthand does not withstand scrutiny. Indeed, we believe
that, if anything, Saffle supports the conclusion that Mills
did not announce a new rule. As discussed above, the harm
identified in Mills by the Supreme Court-- as well as the
dissenting opinion in the Maryland Court of Appeals-- was
the potential that jurors were precluded from considering
any and all mitigating evidence. See Mills, 486 U.S. at 375.
Quite unlike the anti-sympathy instruction considered in
Saffle, Mills does concern the precise harm addressed by
the Court in Lockett and Eddings: Its focus was on what --
i.e., any and all -- evidence jurors could consider. Although
"unanimously" is clearly an adverb, the meaning of the
term "unanimously" as used here does not actually relate to
"how" the jury is to view the evidence (as does sympathy).
Rather, here unanimity presents a barrier, potentially
preventing jurors from considering any and all mitigating
evidence. To the extent that Saffle suggests that such rules
are clearly prohibited by Lockett and Eddings, it lends
support to our conclusion here. See Saffle, 494 US. at 491
(stating that preventing a jury from "considering, weighing,
and giving effect to all of the mitigating evidence . . . .
come[s] under the rule of Lockett and Eddings").

Finally, we note that our conclusion finds additional
support in a recent ruling by the Court of Appeals for the
Sixth Circuit. In Gall v. Parker, 231 F.3d 265 (6th Cir.
2001), the Sixth Circuit held that application of Mills on
habeas was not prohibited by Teague, both because Mills
did not announce a new rule and because Mills falls within
the second of Teague’s exceptions to nonretroactivity. With
regard to the former conclusion, which is more relevant
here, the Sixth Circuit found that Mills was"dictated by the
Lockett rule," and emphasized the language in Mills quoted
above, in which the Supreme Court made "clear[that] it did
nothing more than apply Lockett to a new factual situation."

                                27


Id. at 323. The Sixth Circuit also noted the Supreme
Court’s citation in Mills to Andres v. United States, 333 U.S.
740 (1948), which the court characterized as "a half-
century old death penalty reversal" in which"the Court
granted a new trial after finding fault in instructions that
‘probab[ly]’ induced a ‘reasonable’ juror to conclude that
unanimity was needed to ‘qualify’ a verdict of guilty in order
to preclude a death sentence." Gall, 231 F.3d at 323
(quoting Andres, 333 U.S. at 752). "Given Lockett, Andres,
and the Court’s clear language in Mills," the Sixth Circuit
concluded that Mills did not impose a new constitutional
obligation. Gall, 231 F.3d at 323.14

It is worth emphasizing here that Banks’s case is far
stronger than the one presented to the Sixth Circuit in Gall.
Whereas Gall’s conviction became final in 1981, limiting the
legal landscape to primarily the plurality opinion in Lockett,
Banks’ conviction was not final until late in 1987, only
months before Mills and after the Supreme Court’s
decisions in Eddings, Skipper, and Hitchcock, in all of which
a clear majority of the Court applied the Lockett rule and
reversed a sentence of death.

In contrast to the Sixth Circuit’s decision in Gall, two
Courts of Appeals have held that Teague bars the
application of Mills on habeas. In Miller v. Lockhart, 65 F.3d
676 (8th Cir. 1995), the Eighth Circuit Court of Appeals
held that Mills announced a new rule, but did so in a case
_________________________________________________________________

14. Similarly, in an opinion we have previously referred to as "brief but
thoughtful," Frey v. Fulcomer, 132 F.3d 916, 920 n.4 (3d Cir. 1997), the
District of Delaware concluded in 1993 that the"requirement that juries
in capital cases be permitted to consider all mitigating factors and
aspects of a defendant’s character and to give effect to that evidence was
firmly established" in Lockett and Eddings. Deshields v. Snyder, 829 F.
Supp. 676, 688 (D. Del. 1993) (quoting Byrd v. Delo, 733 F. Supp. 1334
(E.D. Mo. 1990). Accordingly, the court found that Mills was "nothing
more than a mere extension of then existing precedent to a new factual
scenario." Id.; see also, e.g., Hopkinson v. Shillinger, 781 F. Supp. 737,
742 (D. Wy. 1991) ("The Eighth Amendment [under Lockett and Eddings]
prohibits barriers to consideration of mitigating evidence whether they
result from evidentiary rulings, statute, or jury instructions. Thus, Mills
and McKoy are simply different factual applications of that established
principle and are applicable [on habeas].").

                                28


in which, like Gall, only Lockett had been decided prior to
the defendant’s conviction becoming final. Id. at 685. The
question of whether Mills was dictated by the plurality
opinion in Lockett alone may be a close one-- as
demonstrated by the contradictory opinions of the Sixth
and Eighth Circuits -- but the answer to the question
before us is clear. When considering Lockett in conjunction
with Eddings, in which a majority of the Court adopted the
rule announced by the Lockett plurality, the result in Mills
was obvious, especially given the Court’s continued reliance
on and application of the Lockett rule, prior to Mills, in
cases such as Skipper and Hitchcock.

The Court of Appeals for the Fifth Circuit has also
repeatedly stated that Mills announced a new rule under
Teague. See Woods v. Johnson, 75 F.3d 1017, 1036 (5th
Cir. 1996); Nethery v. Collins, 993 F.2d 1154, 1161-62 (5th
Cir. 1993); Wilcher v. Hargett, 978 F.2d 872, 877-78 (5th
Cir. 1992); Cordova v. Collins, 953 F.2d 167, 173 (5th Cir.
1992). However, as we previously noted in Banks I, the
court has not analyzed or explained its conclusions. Banks
I, 271 F.3d at 542 n.16. Accordingly, we find little in the
Fifth Circuit’s decisions to persuade us that our application
of Mills is prohibited by Teague. 15

IV.

Our previous ruling in this case was reversed by the
Supreme Court only insofar as we held it unnecessary to
decide whether Mills had retroactive application. Because
we now hold that our application of Mills on habeas review
of Banks’s sentence was not prohibited by Teague , we do
not disturb the remainder of our previous opinion,
including its discussion and holding with regard to the
merits of Banks’s Mills claim. We merely augment that
opinion by essentially replacing its discussion of the Teague
_________________________________________________________________

15. We also note that in McDougall v. Dixon , 921 F.2d 518, 539 (4th Cir.
1990), the Court of Appeals for the Fourth Circuit indicated in dicta that
Mills and McKoy were new rules under Teague. In Williams v. Dixon, 961
F.2d 448, 453 n.3 (4th Cir. 1992), however, the court found it
unnecessary to consider whether Mills and McKoy were in fact new rules
because it held that they fell within the second Teague exception.

                                29


issue with the analysis here. Accordingly, our judgment
requiring a new penalty phase for Banks will remain
unchanged.
                                30


SLOVITER, Circuit Judge, concurring.

I continue to adhere to the judgment of the court
instructing the District Court to grant a provisional writ of
habeas corpus directed to the petitioner’s penalty phase.
However, my response to the issue on which the United
States Supreme Court remanded this case to us differs
from that of the majority.

I.

In its per curiam opinion remanding this case, Horn v.
Banks, 536 U.S. 266, 122 S. Ct. 2147 (2002), the Supreme
Court directed that we perform an analysis under Teague v.
Lane, 489 U.S. 288 (1989), as to the retroactive application
of Mills v. Maryland, 486 U.S. 367 (1988). The Court
believed that we had contravened Caspari v. Bohlen, 510
U.S. 383 (1994), "in which [the Court] held that federal
courts must address the Teague question when it is
properly argued by the government." Horn, 536 U.S. at ___,
122 S. Ct. at 2148. We must therefore, as a threshold
issue, address Teague which, although a plurality opinion,
has since been accepted by the Court as setting forth the
standard for retroactivity analysis.

The petitioner in Teague sought to challenge the
composition of his jury, as the prosecutor had used all 10
of his peremptory challenges to exclude blacks. Teague had
argued throughout, without success, that the jury was not
a fair cross section. His habeas petition in the Supreme
Court sought the benefit of its decision in Batson v.
Kentucky, 476 U.S. 79 (1986) (holding that under the Equal
Protection Clause the prosecutor had the burden to give a
race-neutral explanation for its use of peremptory
challenges to exclude black persons from the petit jury).
The Court had previously held in Allen v. Hardy , 478 U.S.
255 (1986) (per curiam), that Batson, which overruled a
portion of Swain v. Alabama, 380 U.S. 202 (1965), could
not be applied to a case on collateral review because Batson
constituted an " ‘explicit and substantial break with prior
precedent.’ " Teague at 295 (quoting Allen, 478 U.S. at 258).
Teague’s second contention in the Supreme Court, that he
established a violation of the Equal Protection Clause under

                                31


Swain, was procedurally barred because Teague never
presented that claim to the state courts.

Thus, the Court turned to Teague’s fair cross section
claim, where he relied on the holding in Taylor v. Louisiana,
419 U.S. 522 (1975), that the Sixth Amendment required
that the jury venire be drawn from a fair cross section of
the community. Teague sought to apply the holding in
Taylor to the composition of the petit jury. In holding that
acceptance of Teague’s claim would constitute a new rule
that it would not apply retroactively to cases on collateral
review, the Supreme Court reformulated the standard
previously enunciated in Linkletter v. Walker , 381 U.S. 618
(1965), and enunciated the principle that "[u]nless they fall
within an exception to the general rule, new constitutional
rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are
announced." Teague, 489 U.S. at 310. The Court explained
that "[a]pplication of constitutional rules not in existence at
the time a conviction became final seriously undermines
the principle of finality which is essential to the operation
of our criminal justice system." Id. at 309.

As to the definition of a "new rule," the Supreme Court
explained in Teague that "[i]n general . . . a case announces
a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government." Id. at
301. It continued, "a case announces a new rule if the
result was not dictated by precedent existing at the time the
defendant’s conviction became final." Id. The Court
recognized two exceptions to its rule of non-retroactivity,
both derived from Justice Harlan’s opinion in Mackey v.
United States, 401 U.S. 667, 675 (1971) (opinion concurring
in judgments in part and dissenting in part). The first is for
a rule that places " ‘certain kinds of primary, private
individual conduct beyond the power of the criminal law-
making authority to proscribe.’ " Id. at 311 (quoting
Mackey, 401 U.S. at 692). The second exception is for
"watershed rules of criminal procedure." Id.

In the Supreme Court’s opinion in Caspari, the Court
elaborated on the responsibility of a federal court faced with
a habeas petition seeking relief based on a rule announced
after the defendant’s conviction became final. Caspari, 510

                                32


U.S. at 390. The court must survey "the legal landscape" as
it existed on the date the defendant’s conviction became
final and then determine if "a state court considering [the
defendant’s] claim at the time his conviction became final
would have felt compelled by existing precedent to conclude
that the rule [he] seeks was required by the Constitution."
Id. (citations omitted). If the court determines that the
defendant seeks the benefit of a new rule, the court must
decide whether that rule falls within one of the two narrow
exceptions to the non-retroactivity principle. Id.

The rule on which Banks relies is that enunciated in
Mills. In Mills, the Supreme Court vacated a death sentence
where the sentencing court’s instruction left a substantial
probability that the jurors may have believed they had to be
unanimous on the existence of a particular mitigating
factor before it could be weighed against an aggravating
factor in determining whether the death sentence should be
imposed. 486 U.S. at 375-76, 384.

Banks contends that in 1987, at the conclusion of his
direct review in state court, the Supreme Court had decided
numerous cases creating the framework upon which Mills
was predicated, and that therefore Mills should not be
regarded as a new rule for purposes of non-retroactivity
under Teague. Banks argues that by the time his sentences
became final as defined under Teague and Caspari, the
Supreme Court had decided ten cases before Mills that
"embody the Eighth Amendment prohibition against a state
mandated process that creates a barrier to juror
consideration of indispensable evidence of the character
and record of an offender in a death penalty proceeding."
Appellant’s Supp. Br. at 3. He counts among those cases
Furman v. Georgia, 408 U.S. 238 (1972) (invalidating
procedures that created a substantial risk that death
penalty would be imposed in an arbitrary and capricious
manner), and, surprisingly, the three cases after Furman
that sustained the imposition of death sentences, Jurek v.
Texas, 428 U.S. 262 (1976); Gregg v. Georgia , 428 U.S. 153
(1976); and Proffitt v. Florida, 428 U.S. 242 (1976). Banks’
argument is that although the death sentencing schemes
were held constitutional in all three cases, the respective
schemes allowed the sentencer to consider the defendant’s
evidence of mitigating circumstances.

                                33


Banks states that in Woodson v. North Carolina , 428 U.S.
280 (1976), where sentences of death were overturned
because the jurors were prevented from considering all
mitigating circumstances, the Supreme Court "recognized
the constitutional requirement of an ‘individualized
sentencing’ in capital cases." Appellant’s Supp. Br. at 4.
The Woodson plurality gave three reasons for its holding:
the state statute at issue imposed a mandatory death
sentence for certain offenses; it provided no standards to
guide the jury in determining which offenders should be
sentenced to death; and it did not allow the sentencer to
consider the character and record of an offender and the
circumstances of the offense as part of the process of
inflicting the death penalty. 428 U.S. at 301-04.

Banks next notes the decision in Roberts v. Louisiana,
428 U.S. 325, 333-34 (1976), decided the same day as
Gregg, Proffitt, Jurek, and Woodson, which also struck
down the death penalty statute because, like that in
Woodson, it failed to provide for any meaningful
opportunity for consideration of the character and record of
the defendant or the circumstances of the crime. Banks
then emphasizes the decision in Lockett v. Ohio , 438 U.S.
586, 608 (1978), where the Supreme Court found
unconstitutional a state statute that allowed consideration
of only a limited number of mitigating factors. Continuing
along this line, Banks lists Eddings v. Oklahoma , 455 U.S.
104, 113-15 (1982), where the Supreme Court ruled that a
sentencing judge improperly decided, as a matter of law,
that he could not consider evidence of a defendant’s
troubled family history and emotional disturbance as
mitigating evidence.

He next references Skipper v. South Carolina, 476 U.S. 1,
4 (1986), holding that the trial judge improperly ruled that
the jury could not consider a defendant’s good conduct in
prison as mitigating evidence, California v. Brown, 479 U.S.
538, 541 (1987), upholding the sentence of death by
interpreting the jury instruction to be consistent with the
Eddings line of cases, and the opinion in Hitchcock v.
Dugger, 481 U.S. 393, 398-99 (1987), decided shortly
thereafter, where the Supreme Court held that a new
sentencing hearing was required because the advisory jury

                                34


and judge should have considered evidence of non-
statutory mitigating circumstances.

Banks argues that this line of cases, embodying the rule
that a jury in a capital case must be permitted to consider
all mitigating factors, compelled the holding in Mills that
"prohibited a state from requiring a jury to be unanimous
before they could find the existence of a particular
mitigating circumstance." Appellant’s Supp. Br. at 9. He
continues, "The Woodson-Lockett-Eddings-Dugger lines of
cases dictate such a result." Id. He relies on the following
language in Mills:

       Under our decisions, it is not relevant whether the
       barrier to the sentencer’s consideration of all mitigating
       evidence is interposed by statute, Lockett v. Ohio,
       supra; [citation omitted]; by the sentencing court,
       Eddings v. Oklahoma, supra, or by an evidentiary
       ruling, Skipper v. South Carolina, supra . The same
       must be true with respect to a single juror’s holdout
       vote against finding the presence of a mitigating
       circumstance. Whatever the cause . . . the conclusion
       would necessarily be the same: ‘Because the
       [sentencer’s] failure to consider all of the mitigating
       evidence risks erroneous imposition of the death
       sentence, in plain violation of Lockett, it is our duty to
       remand this case for resentencing.’ Eddings v.
       Oklahoma, 455 U.S., at 117, n. (O’Connor, J.,
       concurring).

Mills, 486 U.S. at 375, quoted in Appellant’s Supp. Br. at 9.

Banks finds further support in Penry v. Lynaugh , 492
U.S. 302 (1989),1 the only case in the series to consider the
retroactivity issue. The petitioner in Penry claimed, inter
alia, that he was sentenced to death in violation of the
Eighth Amendment because the jury was not adequately
instructed to take into consideration the mitigating
evidence of his mental retardation and abused background.
Under the state sentencing scheme, if the jury answered in
_________________________________________________________________

1. The holding in Penry rejecting the claim that the Eighth Amendment
prohibits the execution of a retarded person was abrogated in Atkins v.
Virginia, 122 S. Ct. 2242 (2002).

                                35
the affirmative all of the three "special issues" questions
required by the statute, the sentencing court was required
to impose the death sentence.2 The same statute had been
challenged previously in Jurek where the Court rejected the
challenge, holding that the state court would interpret the
second question to allow the jury to consider mitigating
evidence. The Penry petitioner argued that the jury would
not have been aware that the evidence on which he relied,
mental retardation and childhood abuse, could be
considered as mitigating circumstances unless it was so
instructed by the trial court. The Supreme Court agreed
that Penry had a right to resentencing, and remanded so
that a new sentencing hearing could be held with
instructions informing the jury that it could give effect to
the mitigating evidence of Penry’s mental retardation and
abused background in considering whether to impose a
death sentence. Id. at 328.

Before reaching its decision, the Court considered
whether granting Penry the relief he sought would create a
"new rule" under Teague. The Court concluded that it was
not applying a new rule under Teague because, at the time
the petitioner’s conviction became final, it had already been
decided in Lockett and Eddings that a state could not
prevent the sentencer from considering and giving effect to
mitigating evidence from the defendant’s background,
character or circumstances of the offense. Id. at 318.

The Commonwealth reads the pre-Mills cases differently
than does Banks, leading it to conclude that Mills
announced a new rule. It reads the decisions on which
Banks relies, Lockett, Eddings, Skipper, and Hitchcock,
which represent where the law stood at the time Banks’
conviction became final, as reversing the death sentences
imposed because the sentencer "had been entirely
precluded from considering a category of appropriate
_________________________________________________________________

2. The special issues were (1) whether the defendant’s conduct was
deliberate and with the reasonable expectation that death would result;
(2) whether there is a probability that the defendant would commit
criminal acts of violence that would be a continuing threat to society;
and (3) if raised by the evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in response to the provocation,
if any, by the deceased. Penry, 392 U.S. at 310.

                                36


mitigating evidence." Appellees’ Supp. Br. at 4. It points out
that in contrast to those cases, the Mills jury could hear
and consider any evidence of mitigation that the defendant
presented. The Commonwealth states that the Mills rule
(which declared unconstitutional the requirement that
jurors agree unanimously on a mitigating factor to be used
in the weighing step) went beyond the previously
enunciated principle that the jury must be allowed to
consider mitigating evidence. The Commonwealth argues
that Mills enunciated a new rule when it rejected, for the
first time, the requirement of unanimity on a particular
mitigating factor.

The Commonwealth also contends that the result in Mills,
a 5-4 decision, was not a foregone conclusion and"marked
a significant leap from prior precedent." Appellees’ Supp.
Br. at 4. It notes that four present Supreme Court justices
dispute that the Mills decision was " ‘controlled or governed’
by Lockett and Eddings, let alone dictated by those earlier
decisions." Id. at 9, citing McKoy v. North Carolina, 494 U.S.
433, 452-56 (1990) (Kennedy, J., concurring opinion); id. at
471 (Scalia, J., dissenting opinion, with Rehnquist, C.J.,
and O’Connor, J.).

The courts of appeals that have considered whether Mills
announced a new rule have divided on their view. In Gall v.
Parker, 231 F.3d 265, 322 (6th Cir. 2000), cert. denied, 533
U.S. 941 (2001), the Court of Appeals for the Sixth Circuit
held that the rule in Mills was not new. The court explained
that Lockett was firmly in place in 1981 when petitioner’s
conviction became final, and stated that a state court facing
the petitioner’s claim at that time would have felt compelled
to apply Lockett as Mills ultimately did in 1988. Id. at 323.
It further stated that Mills did not break new ground or
impose a new obligation on the states or federal
government. Id. See also DeShields v. Snyder, 829 F. Supp.
676, 687-88 (D.Del. 1993) (concluding Mills did not
announce a new rule for Teague purposes).

Unlike the Sixth Circuit, the Court of Appeals for the
Eighth Circuit concluded that Mills announced a new rule
that does not apply retroactively on collateral review. In
Miller v. Lockhart, 65 F.3d 676, 685-86 (8th Cir. 1995), the
court held that the result in Mills was not dictated by prior

                                37


cases and while Lockett may inform, control or govern Mills,
Lockett did not compel the further holding that a unanimity
requirement for mitigating circumstances is
unconstitutional. The Court of Appeals for the Fifth Circuit
reached the same conclusion in Cordova v. Collins, 953
F.2d 167, 173 (5th Cir. 1992), where the court stated that
it was precluded by Teague from applying Mills
retroactively.

I previously expressed my view that under the Teague
analysis the Supreme Court would likely view Mills as
announcing a new rule, and that it would not apply
retroactively. See Zettlemoyer v. Fulcomer, 923 F.2d 284,
316-17 n.3 (3d Cir. 1991) (Sloviter, J., dissenting).
Although I find the result reached by the majority
attractive, and I agree that Mills followed logically from
earlier cases, I regretfully cannot join the majority’s view
that Mills may be applied retroactively to Banks’ case
because Mills did not create a new rule for purposes of a
Teague analysis.
My view is informed in large part by several decisions of
the Supreme Court which, after analyzing Teague ,
characterized the rules at issue in those cases as new ones.
In Saffle v. Parks, 494 U.S. 484 (1990), Parks, a habeas
petitioner, claimed that a penalty phase jury instruction
telling the jury to avoid any influence of sympathy violated
his Eighth Amendment rights. Parks argued that jurors
must be allowed to base their sentencing decision upon
sympathy after hearing the mitigating evidence.

In concluding that the principle Parks advanced created
a new rule under Teague, the Supreme Court held that
Lockett and Eddings did not dictate such a result. Id. at
490. The Court explained that although the decisions in
Lockett and Eddings limit the ability of a state to define the
factual bases upon which the capital sentencing decision
must be made, they do not speak to whether the state may
instruct the sentencer to render its decision on the evidence
without sympathy. Id. As the Saffle Court explained,
"[t]here is a simple and logical difference between rules that
govern what factors the jury must be permitted to consider
in making its sentencing decision and rules that govern
how the State may guide the jury in considering and

                                38


weighing those factors in reaching a decision." Id. Because
it deemed the rule sought by Parks to be a new one, the
Court did not consider the merits of Parks’ proposed rule.
The Commonwealth relies on the distinction made by the
Supreme Court in Saffle between what mitigating evidence
the jury must be allowed to consider as opposed to how it
must consider the mitigating evidence. Appellees’ Supp. Br.
at 6.

Another application of the Teague new rule/existing rule
distinction is found in Butler v. McKellar, 494 U.S. 407
(1990). In that case, a habeas petitioner sought the benefit
of the holding in Arizona v. Roberson, 486 U.S. 675 (1988),
that the police may not initiate questioning after the
accused invokes his right to counsel in the context of a
separate investigation. Butler argued that Roberson should
be applied to his case because it did not establish a new
rule under Teague but merely followed the rule established
in Edwards v. Arizona, 451 U.S. 477 (1981), where the
Court held the police must refrain from further questioning
after the accused had invoked his right to counsel.

Butler noted that the Supreme Court had stated in
Roberson that the case was directly controlled by Edwards.
Nonetheless, the Court in Butler decided, in an approach
consistent with that it took in Saffle, that Roberson
announced a new rule because its result was not"dictated"
by the Edwards precedent. 494 U.S. at 409. The Court
explained that its outcome in Roberson was susceptible to
debate among reasonable minds, as evidenced by the
differing positions taken by judges of other courts. Id. at
415.
Thereafter, in Graham v. Collins, 506 U.S. 461 (1993), the
Court once again focused on the meaning of the statement
in Teague that a new rule is one that was not "dictated by
precedent existing at the time the defendant’s conviction
became final." Teague, 489 U.S. at 301. Graham, the
habeas petitioner, contended that the sentencing jury was
unable to give effect to mitigating evidence of his age,
background and character within the confines of the three
special issues questions in the same Texas sentencing
statute at issue in Penry. Although the Court in Penry had
required instructions that the jury should consider mental

                                39


retardation and childhood abuse as mitigating evidence, in
Graham the Court held that the relief Graham sought,
instructions that the jury consider age, background and
character as mitigating, would require announcement of a
new rule. Id. at 476-77. It stated that"the determinative
question [under Teague] is whether reasonable jurists
reading the case law that existed in 1984 could have
concluded that Graham’s sentencing was not
constitutionally infirm." Id. Because it could not say, even
with the benefit of the Court’s decision in Penry, that
reasonable jurists would be of one mind on Graham’s
claim, the ruling sought would be a new rule. The Court
noted the limited issue before it in Penry and stated that it
did not read Penry "as effecting a sea change in [the]
Court’s view of the constitutionality of the former Texas
death penalty statute; it does not broadly suggest the
invalidity of the special issues framework." Id. at 474. Thus,
it rejected Graham’s reliance on Penry. The language used
in the Graham opinion reiterates the need to show the
result was "commanded" by the earlier cases if it is not to
be viewed as a new rule. See id. at 475; see also Lambrix
v. Singletary, 520 U.S. 518, 528 n.3 (1997) (finding
Espinosa v. Florida, 505 U.S. 1079 (1992) (per curiam),
announced a new rule that was not dictated by precedent
where earlier cases did not compel the outcome because
they did not answer the definitive question before the
Court).

Although Mills can be viewed as establishing an
incremental step in the series of cases beginning with
Furman, I believe it is not commanded by the earlier cases
in the sense the Court approached that issue in Saffle,
Butler and Graham. Hence, I conclude that Mills established
a new rule within the Teague inquiry that does not apply
retroactively, unless it falls within one of the two exceptions
to Teague.

Those exceptions are narrow. The first exception, that for
new rules that place " ‘certain kinds of primary, private
individual conduct beyond the power of the criminal law-
making authority to proscribe,’ " Caspari , 510 U.S. at 396
(quoting Teague, 489 U.S. at 307), is plainly not applicable.
The manner in which the jury must consider mitigating

                                40
evidence does not relate to the "primary, private, individual
conduct" underlying the offense at issue.

Banks contends that if Mills created a new rule, the
second exception, that for " ‘watershed rules of criminal
procedure’ implicating the fundamental fairness and
accuracy of the criminal proceeding," id. (quoting Saffle,
494 U.S. at 495), applies but I cannot agree. The exception
is meant to apply only to a small core of rules requiring
observance of those procedures that are implicit in the
concept of ordered liberty. Graham, 506 U.S. at 478
(citations omitted). The Saffle Court gave as an example of
the type of rule falling within the second exception the rule
enunciated in Gideon v. Wainwright, 372 U.S. 335 (1963),
that a defendant has the right to be represented by counsel
in all criminal trials for serious offenses. See 494 U.S. at
495. In Teague, itself, the Court gave as illustrations for the
second exception the classic grounds for the issuance of a
writ of habeas corpus -- that the proceeding was
dominated by mob violence, that the prosecutor knowingly
used perjured testimony or that a conviction was based
upon a confession obtained by brutal methods. See Teague,
489 U.S. at 313 (citations omitted).

No Supreme Court case since Teague has held the
second exception applicable. For example, in Sawyer v.
Smith, 497 U.S. 227, 245 (1990), the Supreme Court found
that the rule in Caldwell v. Mississippi, 472 U.S. 320
(1985), which held that the Eighth Amendment prohibits
the imposition of a death sentence by a sentencer that has
been led to the false belief that the responsibility for
determining the appropriateness of the defendant’s capital
sentence rests elsewhere, does not satisfy the exception.
The Court stated that the second exception would apply
only to a new rule that, in addition to improving the
accuracy of trial, " ‘alter[s] our understanding of the
bedrock procedural elements’ " essential to the fairness of a
proceeding. 497 U.S. at 242 (citing Teague, 489 U.S. at 311
(citation omitted)). It further stated that it is" ‘unlikely that
many such components of basic due process have yet to
emerge.’ " Id. at 243 (quoting Teague, 489 U.S. at 313).

Although I believe that the rule in Mills is aimed at
improving the reliability of capital sentencing, in light of the

                                41


Supreme Court’s decisions in Saffle, Butler, and Graham I
cannot conclude that Mills alters our understanding of the
bedrock procedural elements essential to the fairness of a
proceeding. Therefore, I reject Banks’ argument that Mills
falls within the second Teague exception.

II.

Notwithstanding my view that Mills created a new rule
under Teague that does not fall within either of the Teague
exceptions, I believe that Teague does not apply in the
special circumstances under which the Pennsylvania
Supreme Court reviewed Banks’ post-conviction petition. I
note initially that in its opinion remanding to this court, the
Supreme Court focused only on our failure to analyze the
Teague issue and did not reach the merits of our holding in
Banks I "that the Pennsylvania Supreme Court ruling
involved an unreasonable application of Mills ." Banks v.
Horn, 271 F.3d 527, 545 (3d Cir. 2001). There would be no
basis therefore to assume that the Court rejected that
holding. But in light of my conclusion that Mills established
a new rule, it is incumbent on me to explain why I believe
we are free to apply Mills retroactively to Banks’ case. The
explanation lies in Pennsylvania’s unique relaxed waiver
rule in effect at the time of Banks’ state post-conviction
proceedings.

Banks’ 1983 conviction of first degree murder and related
crimes was affirmed by the Pennsylvania Supreme Court on
direct appeal in 1987. Commonwealth v. Banks, 521 A.2d 1
(Pa.), cert. denied, 484 U.S. 873 (1987). When Banks
appealed the trial court’s 1993 denial of his petition for
post-conviction relief to the Pennsylvania Supreme Court,
he asserted, among other claims, that the jury instructions,
jury poll and verdict slip violated Mills (decided after Banks’
direct appeal was completed) by suggesting that the jury’s
findings as to mitigating circumstances must be
unanimous. The Commonwealth argued that all of the
issues raised in the post-conviction petition were waived
because Banks failed to raise them on direct appeal. The
Pennsylvania Supreme Court agreed that some of the
issues could have been raised on direct appeal and thus
could be deemed waived under the Post Conviction Relief

                                42


Act, 42 Pa. Cons. Stat. SS 9541-46 ("PCRA"), but stated that
it would "address all of Appellant’s claims since the trial
court addressed all of those claims and since it is this
Court’s practice to address all issues arising in a death
penalty case irrespective of a finding of waiver."
Commonwealth v. Banks, 656 A.2d 467, 470 n.7 (Pa. 1995).
The first issue it addressed was Banks’ claim that the jury
instruction, jury poll and the verdict slip violated the
Supreme Court’s mandate in Mills.

The Pennsylvania Supreme Court considered the Mills
claim on the merits. This was the first time it did so. It
reviewed the jury instruction and found that it had
determined in another case that the instruction,"which
mirrors the language found in the death penalty statute of
[the Pennsylvania] Sentencing Code," did not violate Mills.
Id. at 470. It similarly held that the form of the verdict slip
did not violate Mills, and that the answers provided by the
jurors during the poll did not suggest that they believed
unanimity was required in finding mitigating
circumstances. Id.

A state conviction and sentence become final for
purposes of retroactivity analysis when the availability of
direct appeal to the state courts has been exhausted and
the time for filing a petition for a writ of certiorari has
elapsed or a timely filed petition has been finally denied.
Caspari, 510 U.S. at 390; Kapral v. United States, 166 F.3d
565, 572 (3d Cir. 1999). Although Banks’ direct appeal
technically had been exhausted, the Pennsylvania Supreme
Court treated his petition for collateral relief like a direct
appeal by considering his Mills claim on the merits.
Because the Pennsylvania Supreme Court applied the
relaxed waiver doctrine, Banks’ conviction was not final
within the meaning of Teague until the Pennsylvania
Supreme Court affirmed the denial of his PCRA petition and
his petition for a writ of certiorari was denied.

The Teague rule stems in large part from the desire to
accord comity to decisions of the state courts, which, in
their review of the case, did not have the opportunity to
analyze the effect of a subsequent Supreme Court decision.
The rationale for the comity principle has been articulated
most forcefully in the cases dealing with the exhaustion

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doctrine. More than a century ago, in Ex parte Royall, 117
U.S. 241, 251 (1886), the Supreme Court wrote that as a
matter of comity, federal courts should not consider a claim
in a habeas corpus petition until after the state courts have
had an opportunity to act.

After Congress’ 1948 codification of the exhaustion
doctrine at 28 U.S.C. S 2254, the Supreme Court in Rose v.
Lundy, 455 U.S. 509 (1982), analyzed the policies
underlying the statute as follows:

       The exhaustion doctrine is principally designed to
       protect the state courts’ role in the enforcement of
       federal law and prevent disruption of state judicial
       proceedings. [citation omitted]. Under our federal
       system, the federal and state ‘courts [are] equally
       bound to guard and protect rights secured by the
       Constitution.’ [citation omitted]. Because‘it would be
       unseemly in our dual system of government for a
       federal district court to upset a state court conviction
       without an opportunity to the state courts to correct a
       constitutional violation,’ federal courts apply the
       doctrine of comity, which ‘teaches that one court
       should defer action on causes properly within its
       jurisdiction until the courts of another sovereignty with
       concurrent powers, and already cognizant of the
       litigation, have had an opportunity to pass upon the
       matter.’ [citations omitted].

Id. at 518 (emphasis added).

More recently, in O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999), where the Court held that a state prisoner
must present his claims to a state supreme court in a
petition for discretionary review in order to satisfy the
exhaustion requirement, the Court explained that the
exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal
courts. It further stated, citing Rose,

       State courts, like federal courts, are obliged to enforce
       federal law. Comity thus dictates that when a prisoner
       alleges that his continued confinement for a state court
       conviction violates federal law, the state courts should

                                44


       have the first opportunity to review this claim and
       provide any necessary relief. [citations omitted]. This
       rule of comity reduces friction between the state and
       federal court systems by avoiding the ‘unseem[liness]’
       of a federal district court’s overturning a state court
       conviction without the state courts having had an
       opportunity to correct the constitutional violation in
       the first instance. [citations omitted].

Id. at 844-45. See also Duncan v. Walker , 533 U.S. 167,
178-79 (2001) (recognizing principle of comity set forth in
O’Sullivan and Rose). We also have recognized the same
rationale. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.
2000), cert. denied, 532 U.S. 980 (2001).

In this case, because of the application of Pennsylvania’s
unique relaxed waiver doctrine in capital cases, the
Pennsylvania Supreme Court not only had the first
opportunity to review Banks’ jury instructions, verdict slip,
and jury poll in light of Mills, but exercised that
opportunity. It thus treated that claim as on direct appeal
and there is no reason why, even though Mills announced
a new rule, the Pennsylvania Supreme Court’s resolution of
that issue should not be cognizable on federal habeas
review. I adhere to the majority’s judgment in our decision
filed October 31, 2001 that the Pennsylvania Supreme
Court’s ruling denying Banks’ claim under Mills was
unreasonable. Therefore, I concur in its judgment today.3
_________________________________________________________________

3. The unique circumstances presented by this case are unlikely to recur
because the Pennsylvania Supreme Court now strictly construes the
state’s Post Conviction Relief Act. In Commonwealth v. Albrecht, 720 A.2d
693, 700 (Pa. 1998), the Pennsylvania Supreme Court abandoned its
application of a relaxed waiver doctrine in capital cases in PCRA appeals
because the "ever-widening application of the doctrine has, in effect,
virtually eliminated any semblance of finality in capital cases, and
frustrated the efficient use of the resources of the court." Since Albrecht,
the Pennsylvania Supreme Court has ruled that claims of trial court
error, like the Mills claim in the present case, are not reviewable on
collateral review. See, e.g., Commonwealth v. Wallace, 724 A.2d 916, 921
n.5 (Pa. 1999) (finding claims of trial court error that could have been
raised on direct review waived). It has also rejected the argument that

                                45
A True Copy:
Teste:

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

the abrogation of the relaxed waiver rule should not apply retroactively
to PCRA petitions filed before Albrecht was issued. See Commonwealth v.
Bracey, 795 A.2d 935, 941 (Pa. 2001) (because Albrecht merely clarified
the court’s practice of relaxing its waiver rules in death penalty cases,
the defendant suffered no constitutional violation by its retroactive
application).

                                46
