### 1997 D e c i sion s O p inion s of the U nit e d

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. e du/thir dc ir c uit_1997/224Filed September 19, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 9003

GEORGE E. BANKS,

Appellant

v.

MARTIN HORN, Commissioner, PA Department of

Corrections; JAMES PRICE, Superintendent of the State

Correction al Institution at Greene; JOSEPH P.

MAZURKIEWICZ, Superintendent of the State Correctional

Institution at Rockview; THE COMMONWEALTH OF

PENNSYLVANIA

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 96

- 00294)

Argued August 12, 1997

BEFORE: SLOVITER, Chief Judge, and GREENBERG and

MCKEE, Circuit Judges

(Filed: September 19, 1997)

Albert J. Flora, Jr. (argued)

William Ruzzo

Office of Public Defender

Luzern e County Courthouse

Wilkes

- Barre, PA 18711

Attorneys for Appellant

Peter P. Olszewski, Jr. (argued)

Scott C. Gartley

Office of District Attorney

Luzerne County Courthouse

200 North River Street

Wilkes

- Barre, PA 18711

Attorneys for Appellees

OPINION OF THE COURTGREENBERG, Circuit Judge.

I. INTRODUCTION

George E. Banks appeals to this court from a final

judgment entered in the district court on August 30, 199 6,

denying his petition for a writ of habeas corpus under 28

U.S.C. S 2254. Banks committed the crimes leading to his

conviction and sentencing in the state court and finally to

his petition for habeas corpus on September 25, 1982,

when he shot 14 peo ple in Wilkes

- Barre, Pennsylvania,

killing 13 of them. The victims included Banks' four

girlfriends and their children, most of whom were Banks'

children as well. Banks, who was born from an interracial

relationship, apparently committed the murders be cause he

preferred his children to die rather than grow up in what he

thought was a racist world. See Commonwealth v. Banks,

521 A.2d 1, 4

- 7 (Pa. 1987) ("Banks I").

Prior to trial in the Luzerne County Court of Common

Pleas, Banks' attorney raised i ssues with respect to Banks'

competency to stand trial. Accordingly, the common pleas

court held several pre

- trial competency hearings pursuant

to the Pennsylvania Mental Health Procedures Act of 1976,

Pa. Stat. Ann. tit. 50 SS 7402

- 7403 (West Supp. 19 86), each

time concluding that Banks was competent to stand trial.

In addition, during the trial, Banks' attorney made several

unsuccessful motions seeking competency determinations.

During the trial, Banks' attorney attempted to establish

that Bank s was legally insane at the time of the offenses,

2

or, alternatively, that his capacity was diminished by

alcohol and pills, thereby precluding a finding offirst

degree murder. Against the advice of counsel, Ban ks

testified and offered a defense that the police, the Wilkes

Barre mayor, and the district attorney were conspiring

against him. Banks also cross

- examined a ballistic expert,

and directed counsel with respect to questions for cross

examination of several of the Commonwealth's witnesses.

On June 21, 1983, the jury convicted Banks of 12 counts

of first degree murder, as well as of third degree murder,

attempted murder, and other related counts. The next day

the jury voted to impose the death pe nalty. Accordingly, the

court sentenced Banks to 12 "consecutive" death sentences

and various consecutive terms of imprisonment.

Banks filed an appeal, and the Pennsylvania Supreme

Court affirmed his convictions and sentences in Banks I.The court u pheld the trial court's determination that Banks

was competent to stand trial, found that there was ample

evidence that Banks had the requisite intent to kill his

victims, and resolved the remaining issues on appeal

against Banks. Chief Justice Nix and Justice Zappala

dissented on the ground that the common pleas court made

the trial a mockery of justice by allowing Banks to take over

his own defense.

In February 1989 Banks filed a petition in the common

pleas court under the Pennsylvania Post Co nviction Hearing

Act ("PCHA"), 42 Pa. Cons. Stat. S 9541 et seq. (West 1982),

seeking relief from the judgment of conviction and

sentence. The Pennsylvania courts treated this petition as

if filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.

Cons. Stat. S 9541 (West Supp. 1997), which had replaced

the PCHA. See Commonwealth v. Banks, 656 A.2d 467, 469

n.4 (Pa. 1995) ("Banks II"). The common pleas court denied

him relief, and on appeal, the Pennsylvania Supreme Court,

finding all his claims meritless, affirmed in Banks II.

On February 21, 1996, after Governor Ridge signed a

warrant for his execution, Banks filed a motion in the

district court seeking leave to proceed in forma pauperis, a

motion to stay the execution, and a motion for a ppointment

of counsel. The district court granted the motion to proceed

3

in forma pauperis stayed the execution, provided for the

appointment of counsel, and directed Banks to file a

habeas petition by March 22 , 1996. Banks v. Horn, 928 F.

Supp. 512, 514 (M.D. Pa. 1996) ("Banks III"). Banks then

filed a petition raising the following claims:

1. He did not make a knowing, intelligent and

voluntary waiver of his Sixth Amendment right to

counsel before the trial court allowed him to assume

control of the presentation of evidence and cross

-

examination of witnesses;

2. He was not competent to waive his right to counsel;

3. He did not make a knowing, inte lligent and

voluntary waiver of his Fifth Amendment right against

self

- incrimination before the trial court allowed him to

assume control of the presentation of evidence and

cross

- examination of witnesses;

4. He wa s not competent to waive his Fifth

Amendment right against self

- incrimination;5. He was not competent to be tried and sentenced;

therefore, the trial court's judgment violated the Due

Process Clause of the Fourteenth Amen dment and the

Cruel and Unusual Punishment Clause of the Eighth

Amendment;

6. During the penalty phase of the trial the court's

instructions to the jury, the verdict slip, and the jury

poll all required the jury to find unanimously both

aggravating and mitigating circumstances in violation

of the Eighth Amendment;

7. The trial court's failure in the capital sentencing

part of the trial to instruct the jury on life

imprisonme nt without parole violated the holding in

Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct.

2187 (1994), that the Eighth Amendment required

such an instruction;

8. The lack of uniformity in death penalty procedures

in Pennsylvania did not provide a narrowing of

discretion in the imposition of a death sentence as the

Eighth Amendment requires;

4

9. The trial court's failure to instruct the jury that it

could render a verdict of life imprisonment based on a

finding of mercy violated the Eighth Amendment as

applied in California v. Brown, 479 U.S. 538, 107 S.Ct.

837 (1987);

10. Pennsylvania's Proportionality Revie w Statute

deprived Banks of his right to due process under the

Fourteenth Amendment;

11. The trial court's failure to voir dire prospective

jurors on whether they automatically would impose

death on a finding of fi rst degree murder was in

violation of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct.

2222 (1992).

Banks v. Horn, 939 F. Supp. 1165, 1166 (M.D. Pa. 1996)

("Banks IV").

Banks recognized that his habeas corpus petition faced a

procedural hurdle because he had not raised claims 7, 9,

and 11 in the state courts. Consequently, he filed a motion

to remand the petition to the state courts and to stay the

proceedings in the district court pending exhaustion of

claims 7, 9, and 11 in the stat e courts. See Banks III, 928

F. Supp. at 514. The Commonwealth opposed the motionand urged the district court to dismiss the petition as

mixed under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198

(1982), because it included both exhausted and

unexhauste d claims. By order of April 29, 1996, the district

court denied Banks' motion because in its view the

adoption in 1995 of the Capital Unitary Review Act, 42 Pa.

Cons. Stat. Ann. S 9570 et seq. (West Supp. 1997), which

limited death penalty appeals to o ne "unitary" direct appeal

of all issues, barred further review of Banks' case in the

state courts. See Banks III, 928 F. Supp. at 514. The

Commonwealth then filed a motion for reconsideration on

the ground that the Capital Unitary Review Act does not

apply to cases in which the death penalty was imposed

before January 1, 1996.

The district court agreed with the Commonwealth's

contention. It concluded, however, that in Pennsylvania "an

issue is waived for purposes of post conviction relief if the

petitioner failed to raise the issue and it could have been

5

raised before trial, at trial, on direct appeal, or in prior

collateral proceedings. 42 Pa. Cons. Stat. Ann.S 9544(b)

[(West Supp. 1997)]." Banks II I, 928 F. Supp. at 515. The

court then indicated that second or subsequent petitions

for post conviction relief will not be entertained in

Pennsylvania unless the petitioner makes a strong prima

facie showing that a miscarriage of justice may have

occ urred. There is a miscarriage of justice if the

proceedings resulting in conviction were so unfair that no

civilized society could tolerate them or if the defendant was

actually innocent of the crimes charged. Id.

The court found the innocence prong inapplicable to the

unexhausted claims and interpreted the other prong as

referring to errors which undermine the truth

- determining

process. The court concluded from its analysis of

Pennsylvania cases addressing similar claims that a

Pennsylvania cour t would not find that the allegations in

any of the unexhausted claims set forth circumstances

amounting to a miscarriage of justice. Id. at 518

- 21.

Therefore, the district court held that state law clearly

foreclosed review by the state courts of the unexhausted

claims which thus were procedurally barred. Id. at 521,

citing Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993).

Consequently, it concluded that Banks' petition was not

mixed under Rose v. Lundy, and it therefore denied the

Commonwealth's mot ion to dismiss the petition.

The Commonwealth then moved again to dismiss the

petition under Rose v. Lundy, this time alleging that Bankshad not exhausted his claim concerning waiver of his right

to counsel. The district court denied the motion beca use

Chief Justice Nix in Banks I based his dissenting opinion

precisely on that issue. Banks v. Horn, Civ. No. 96

- 0294, at

(M.D. Pa. July 11, 1996). Consequently, the district court

believed that the waiver of counsel contention was available

to the e ntire Pennsylvania Supreme Court, and thus had

been "fairly presented" to that court, even if only by the

dissent. The district court also found that the Pennsylvania

Supreme Court sufficiently addressed the issue in Banks II.

Thus, the stage was set for the district court to address

the exhausted claims on the merits and it did so in Banks

IV. The court began its analysis by discussing the effect of

6

the Antiterrorism and Effective Death Penalty Act of 199 6

("AEDPA"), Pub. L. No. 104

- 132, 110 Stat. 1214, which was

enacted on April 24, 1996, two months after Banksfiled his

habeas petition. The court noted that the courts of appeals

were divided on whether the AEDPA applies to cases

pending on the date o f its enactment, but found that it

need not resolve that question because it would make no

difference "if no factual matters arise which require the

application of the new standard of proof, or if no rule of law

is applicable which may not be `clearly established.' " Banks

IV, 939 F. Supp. at 1169, citing Dickerson v. Vaughn, 90

F.3d 87, 90 (3d Cir. 1996).

The court found that the outcome of this case would be

the same under the AEDPA and under prior law. Id. at

1176. The court also found that th e provisions in the

AEDPA pertaining to death penalty litigation procedures did

not apply because Pennsylvania's Capital Unitary Review

Act only applies to cases in which the death penalty was

imposed after January 1, 1996. Banks IV, 939 F. Supp. at

1 168. The district court ultimately rejected all of Banks'

exhausted claims on the merits but did not address claims

7, 9, and 11, which were procedurally barred.

In view of its conclusions, the court denied Banks'

petition. Nevertheless, it found tha t there was "probable

cause" to appeal, indicating that "[w]hile most of the claims

raised by Banks do not seem to be particularly close issues,

those issues related to the procedural bar at least are

sufficiently close for a certificate of probable ca use. We

therefore shall so certify. . . ." Id. at 1176. The court

extended the stay of execution "until final disposition of any

appeal . . . ." Id. Banks then appealed. We exercise plenary

review on this appeal. See Ross v. Petsock, 868 F.2d 639,

640 (3d Cir. 1989).Significantly, on January 15, 1997, after he filed this

appeal, Banks filed a second PCRA petition in the Luzerne

County Court of Common Pleas in which he raised claims

7, 9, and 11, the claims which the district court found were

pr ocedurally barred, as well as one additional claim. On

August 20, 1997, the common pleas court denied the

petition holding that it was procedurally barred.

Commonwealth v. Banks, Nos. 1290 etc., slip op. at 7 (C.P.

7

Ct. Aug. 20, 1997). Nevertheless, the court indicated that

"it may well be that the Supreme Court will review the

merits, and accordingly we will take the time to explain why

we believe and find each of the issues raised is without any

legal meri t." Id. The court then did exactly that.

II. DISCUSSION

We first address a preliminary procedural issue. As we

have indicated, Banks filed his petition before the effective

date of the AEDPA, but the district court adjudicated the

matter after tha t date. Nevertheless, in conformity with

prior law, the district court issued a certificate of probable

cause rather than a certificate of appealability as provided

in AEDPA. We have determined that under the AEDPA, 28

U.S.C. S 2253(c)(1), district cou rts can issue certificates of

appealability. United States v. Eyer, 113 F.3d 470, 472

- 74

(3d Cir. 1997). In this case we need not decide whether the

district court should have issued a certificate of

appealability rather than of probable cause as we wi ll treat

the certificate of probable cause as both a certificate of

probable cause and a certificate of appealability because we

ultimately may hold in some future case that the AEDPA

governs procedural issues on appeals filed after its effective

date . Furthermore, we face no issue regarding the scope of

the certificate, see 28 U.S.C. S 2253(c)(3), as we are

confining our disposition to the single issue on which the

district court granted the certificate. See Eyer, 113 F.3d at

474.

Banks argues that the district court erred in finding that

the relaxed waiver standard, applicable to death penalty

cases in Pennsylvania state courts, does not apply to

second or subsequent PCRA petitions. He contends that

"waiver will never be applied in a capita l case where the

result would be the imposition of a sentence of death in a

manner clearly contrary to the express law of the land," br.

at 18, even in a proceeding initiated by a second PCRA

petition. Thus, he urges that his petition was mixed

becaus e the Pennsylvania courts would not hold that hisunexhausted claims are procedurally barred. Therefore, in

his view the district court erred in not dismissing his

petition under Rose v. Lundy.

8

In order to pre vent federal habeas corpus review, a state

procedural rule must be "consistently or regularly applied."

Johnson v. Mississippi, 486 U.S. 578, 588

- 89, 108 S.Ct.

1981, 1988 (1988); see also Ford v. Georgia, 489 U.S. 411,

423

- 24, 111 S.Ct. 850, 857 (1991) . Nevertheless, the

Supreme Court has held that if a state supreme court

faithfully has applied a procedural rule in "the vast

majority" of cases, its willingness in a few cases to overlook

the rule and address a claim on the merits does not mean

that it does not apply the procedural rule regularly or

consistently. Dugger v. Adams, 489 U.S. 401, 410 n.6, 109

S.Ct. 1211, 1217 n.6 (1989). Accordingly, "an occasional

act of grace by a state court in excusing or disregarding a

state procedural rule doe s not render the rule inadequate"

to procedurally bar advancing a habeas corpus claim in a

district court. Amos v. Scott, 61 F.3d 333, 342 (5th Cir.

1995).

Therefore, we examine the decisions of the Pennsylvania

Supreme Court in death penalty cases to ascertain whether

that court consistently or regularly bars second or

subsequent PCRA petitions which may not meet the court's

criteria for such petitions, which include the existence of "a

strong prima facie showing . . . that a miscarriage of just ice

may have occurred." Commonwealth v. Beasley, 678 A.2d

773, 771 (Pa. 1996), cert. denied, 117 S.Ct. 1257 (1997).

We also consider whether the Pennsylvania Supreme Court,

in reviewing petitions, will treat particular issues on the

merits even though they appear to be procedurally barred

because, as the district court noted, under the PCRA, 42

Pa. Cons. Stat. Ann. S 9544(b) (West Supp. 1997), Banks'

claims 7, 9, and 11 appear to be waived and thus to be

procedurally barred in the state courts. See 42 Pa. Cons.

Stat. Ann. S 9543(a)(3) ("To be eligible for relief under [the

PCRA], the petitioner must plead and prove . . .[t]hat the

allegation of error has not been previously litigated or

waived."). We consider both points because in Pennsylvania

a procedural bar may arise with respect to a second or

subsequent PCRA petition as a whole or with respect to

particular issues within the petition.

Of course, review of the Pennsylvania Supreme Court

decisions is critical because as we explained in Toulson v.

9Beyer, 987 F.2d at 988

- 89, in the absence of a state court

decision indicating that a habeas corpus petitioner is

clearly precluded from state court relief, the district court

should dismiss the cl aim for failure to exhaust even if it is

not likely that the state court will consider petitioner's

claim on the merits. We more recently applied this policy in

Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996) (internal

quotation marks and citation o mitted):

[W]e must be certain that state review is clearly

foreclosed lest we deprive state courts of an

opportunity to correct their own errors, if any. It is

therefore not for this Court to decide whether the

Pen nsylvania courts will conclude that the defects in

the proceedings surrounding Doctor's conviction rise to

the level of a miscarriage of justice as defined by

Pennsylvania law. We cannot conclude that there is no

chance that the Pennsylvania courts would find a

miscarriage of justice sufficient to override the waiver

requirements and permit review under the PCRA.

See also Peoples v. Fulcomer, 882 F.2d 828, 831

- 32 (3d Cir.

1989).

Fortunately, we are not without guidance from the

Pennsylvania Supreme Court on whether that court

consistently or regularly applies procedural bars to second

or subsequent PCRA petitions in death penalty cases either

to the petition as a whole or as to issues within it. In

Commonwealth v. Szuchon, 633 A.2d 1098, 1099

- 1100 (Pa.

1993), the court initially rejected the petitioner's claims on

the merits. The court then found that those claims had

been litigated previously and thus could not be addressed

in a PCRA action, and ended by finding that because the

petitioner failed to meet the criteria for a second or

subsequent petition, the PCRA court did not err in denying

the petition. Thus, the court rejected the petitioner's claims

on the merits before finding them proced urally barred.

In Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995),

a death penalty case involving a second PCRA petition, the

court began by outlining the criteria for post conviction

relief under the PCRA. Then, after quoting the then existing

P CRA waiver provisions, it stated: "We note, however, that

10

it is this Court's practice to address all issues arising in a

death penalty case, irrespective of a finding of waiver." Id. at

356 n.6. The court then set forth the criteria forentertaining a second PCRA petition, after which it noted:

"[i]t is with awareness of this standard that we proceed to

consider Appellant's claims." Id. at 357.

In the balance of its Travaglia opinion, the court

extensive ly discussed the merits of all of petitioner's

numerous claims except for a claim previously litigated. Id.

at 365

- 66. The court even assumed arguendo for the

purposes of several claims that there is a right to effective

assistance of counsel on collat eral attack under the state

constitution, id. at 367

- 69, "[i]n the interest of giving a

condemned man the benefit of every possible doubt," id. at

367. The court's extensive discussion of claims pertaining

to post

- conviction proceedings, id. at 367

- 70, makes clear

that it did not limit its inquiry to whether there had been

a miscarriage of justice at trial, the applicable criterion for

entertaining a second petition. Indeed, the court did not

expressly address that question at all.

Finally, in Co mmonwealth v. Beasley, 678 A.2d 773, a

death penalty case, the Pennsylvania Supreme Court stated

that a "second or subsequent post

- conviction request for

relief will not be entertained unless a strong prima facie

showing is offered to demonstrate that a miscarriage of

justice may have occurred." Id. at 777. This standard

requires a showing of either actual innocence or that the

proceedings resulting in conviction were "so unfair that a

miscarriage of justice occurred which no civilized society

can tolerate." Id. The court found that the petitioner did not

meet either test, so that the PCRA petition "could be

dismissed on this ground alone." Id. However, the court

went on to state that "[n]evertheless, since this is a capital

case, this court wil l address appellant's claims." Id.

The court then noted that the petitioner still must comply

with the general requirements for filing a PCRA petition,

that is that the claims have not been previously litigated or

waived, or, if waived, that the waiv er is excused. Id. at 778.

The court found that pursuant to these requirements the

petitioner's ineffective assistance of counsel claims should

be addressed. Yet the court went further and addressed a

11

claim, the withholding of exculpatory evidence, unrelated to

the claim of ineffective assistance of counsel, without even

mentioning whether the issue had been previously litigated

(which we recognize is not likely) or waived. Id. at 783. The

court therefore decided Beasley on the merits rather than

on the basis of either of the two procedural bar rules: one

limiting second petitions as a whole, and one barring

consideration of waived or previously litigated claims.Indeed, the passage quoted above

-- "sin ce this is a capital

case, this court will address appellant's claims"

-- suggests

that the general rule concerning second PCRA petitions

does not apply to capital cases.

We conclude from Szuchon, Travaglia, and Beasley that,

notwithstanding a proce dural bar, it is possible that in a

death penalty case the Pennsylvania Supreme Court will

not refuse either to entertain a second PCRA petition or to

address the claims raised in it. Indeed, as we explained

above, the common pleas court in Banks' seco nd petition

apparently thought the same thing as it indicated that

despite its determination that the petition was barred "it

may well be that the Supreme Court" will review its merits.1

Accordingly, we conclude that the district court erred in

findin g Banks' unexhausted claims procedurally barred.

Although the district court correctly found in Banks III that

Banks' unexhausted claims do not meet the stated criteria

for Pennsylvania courts to consider a second PCRA petition,

we believe that Banks I II did not give adequate recognition

to the Pennsylvania Supreme Court cases demonstrating

that it effectively looks beyond those criteria in death

penalty cases.

In reaching our result, we have not overlooked the

Commonwealth's arguments that the P ennsylvania

Supreme Court has declared issues waived in some death

penalty cases. However, in the cases the Commonwealth

_________________________________________________________________

1. The common pleas court set forth that possibility because it believed

that the Supreme Court "may not always have found and enforced the

waiver rules." Commonwealth v. Banks, slip op. at 6. It was of the view,

however, that "a trial court has no authority to ignore the clear letter

and spirit of the legislative directions contained in the [PCRA]." Id. Of

course, we are deciding this case on the basis of what the Supreme

Court is likely to do.

12

cites, which we note in the main are direct appeals,

notwithstanding havi ng declared the issues in question

waived, the court nevertheless discussed their merits. See

Commonwealth v. Fisher, 681 A.2d 130, 136, 139

- 40 (Pa.

1996) (issue held waived but rejected on the merits);

Commonwealth v. Lewis, 567 A.2d 1376, 1381 (Pa. 1 989)

(noting that "[a]lthough waiver of any claim in a capital case

appears to be contradictory to the relaxed waiver rules

afforded [death penalty] appellants" claims may be waived,

but still considering the merits of the claim);

Commonwealth v. Pete rkin, 513 A.2d 373, 378

- 79 (Pa.

1986).The Commonwealth also cites Commonwealth v. Jasper,

610 A.2d 949, 953 n.6 (Pa. 1992), but that case merely

reaffirms "the rule that challenges to the selection of a jury

can be waived by a failure to object app ropriately." The

court nevertheless refused to address the waiver problem

"[b]ecause our law firmly disposes of the issue of

excludability on the merits." On the other hand,

Commonwealth v. DeHart, 650 A.2d 38, 43 (Pa. 1994),

which the Commonwealth al so cites, was a PCRA case, and

it provides some support for the Commonwealth's

arguments because there the court refused to address a

previously litigated claim. However, the court vacated the

sentence on other grounds.

We also have not overlooked t he Commonwealth's

contention that Banks does not meet the criteria cited in

Szuchon for entertaining a second PCRA petition. Szuchon,

633 A.2d at 1099

- 1100. Yet in Szuchon the court

entertained a petition which also failed to meet those

criteria, appa rently considering the case on the merits

rather than according to the procedural rule. Id. at 1099.

At most, the cases on which the Commonwealth relies,

including Szuchon, demonstrate that the Pennsylvania

Supreme Court does not apply the Pennsylvan ia procedural

bar rules consistently in death penalty cases. The cases do

not indicate that an examination of the merits of Banks'

claims is "clearly foreclosed" as Toulson requires for us to

find them procedurally barred. We said in Toulson that "we

are uncertain how the New Jersey state courts would

resolve the procedural default issue. In light of this, we will

13

not presume how the state courts would rule on

[petitioner's] claims." Toulson v. Beyer, 987 F.2d at 989. We

are no more certain as to how the Pennsylvania Supreme

Court will view Banks' claims 7, 9, and 11.

In this regard we point out that federal courts should be

most cautious before reaching a conclusion dependent

upon an intricate analy sis of state law that a claim is

procedurally barred. Toulson surely made that point clear

and the enactment of the AEDPA, which overall is intended

to reduce federal intrusion into state criminal proceedings,

reenforces the point. In questionable case s, even those not

involving capital punishment, it is better that the state

courts make the determination of whether a claim is

procedurally barred.

Finally, the Commonwealth contends that the 1995amendments to the PCRA, as distinguished from the

inapplicable Capital Unitary Review Act procedures, show

that Banks' petition is barred. See 42 Pa. Cons. Stat. Ann.

S 9545(b)(1) and (2) (West Supp. 1997). The Commonwealth

argues that any second PCRA petition Banks filed would be

untimely (a third ba sis for erection of a procedural bar),

and that even if timely his unexhausted claims fail to meet

the criteria for granting post

- conviction relief. Br. at 19

- 22.

While it is true that the text of the 1995 PCRA

amendments supports these contentions, it is not clear that

these amendments are dispositive. The Commonwealth

does not refer us to a Pennsylvania Supreme Court case

applying the PCRA as amended in 1995 to support its

views. Furthermore, in Szuchon and Beasley the

Pennsylvania Supreme Cour t addressed the merits of

claims which seemingly were precluded by the PCRA

provisions then in force. We also point out that the

Pennsylvania Supreme Court seems to exercise strong

control of procedures in death penalty cases. Indeed, on

August 11, 19 97, the court issued an order pursuant to its

administrative powers in Pa. Const. art. 5, S 10, in In re:

Suspension of the Capital Unitary Review Act etc., No. 224,

in which it suspended permanently the Capital Unitary

Review Act.

In the circumstan ces, we are not confident that the

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Pennsylvania Supreme Court, even in the face of the 1995

amendments to the PCRA, will abandon its practice of

reaching the merits of claims in PCRA petitions in capital

case s regardless of the failure of the petition to meet the

appropriate procedural criteria.2 Consequently, applying

Toulson, we cannot find that review of Banks' unexhausted

claims has been foreclosed.3

III. CONCLUSION

In concluding we make two point s. First, we are well

aware that notwithstanding this opinion, the Pennsylvania

Supreme Court may hold that Banks' unexhausted claims

are procedurally barred on any of the possible bases to

which we have made reference. Indeed, we are not holding

that they are not barred and certainly our opinion could

not have a preclusive effect on that point in the

Pennsylvania courts. We are holding only that we cannot

say with confidence that they are barred. Second, in

reaching our result we are sensitive to the independence of

the Pennsylvania courts and of that state's sovereignty.

Thus, we are reluctant to consider a habeas corpus claimat a time when a petitioner may be able to invoke a state

procedure to grant a remedy in the state courts if he is

__ _______________________________________________________________

2. In writing this opinion we have assumed, as did the common pleas

court when it denied Banks' petition on August 20, 1997, that the

Pennsylvania Supreme Court ultimately will decide whe ther claims 7, 9,

and 11 are procedurally barred. That assumption, however, may not be

correct because the 1995 amendments to the PCRA provide that an

order denying a petitioner relief in a case in which the death penalty has

been imposed "shall be rev iewable only by petition for allowance of

appeal to the Supreme Court." 42 Pa. Cons. Stat. Ann. S 9546(d) (West

Supp. 1997). However, because Banks has at least the opportunity to

seek leave to appeal in the Supreme Court (and failing to obtain that

le ave may be able to appeal to the Superior Court) we cannot say that

he has no further state remedies.

3. It is, of course, possible in death penalty cases (and other cases as

well) that future experience will show that the Pennsylvania Supreme

Court consistently and regularly applies the 1995 amendments to the

PCRA and thereby creates a procedural bar sufficient to satisfy the

standard of Johnson v. Mississippi, 486 U.S. at 589, 108 S.Ct. at 1988.

That time, however, has not yet been reached.

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entitled to relief. In view of our conclusions, we will vacate

the judgment of August 30, 1996, and will remand the case

to the district court to dismiss the petition without

prejudice as mixed.

A True Copy:

T este:

Clerk of the United States Court of Appeals

for the Third Circuit

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