2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-2005

Fountain v. Kyler

Precedential or Non-Precedential: Precedential

Docket No. 03-4777

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"Fountain v. Kyler" (2005). 2005 Decisions. Paper 589.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

 FOR THE THIRD CIRCUIT

 

No. 03-4777

 

CHARLES VINCENT FOUNTAIN,

 Appellant

v.

KENNETH D. KYLER;

ATTORNEY GENERAL FOR

THE COMMONWEALTH OF PENNSYLVANIA

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 02-cv-00897)

District Judge: Honorable James M. Munley

 

Argued July 11, 2005

Before: SLOVITER and McKEE, Circuit Judges,

and FULLAM, District Judge *

(Filed: August 25, 2005)

 

R. Damien Schorr, Esq.(Argued)

1015 Irwin Drive

Pittsburgh, PA 15236

Attorney for Appellant

 

* Hon. John P. Fullam, Senior Judge, United States District

Court for the Eastern District of Pennsylvania, sitting by

designation.
The District Court had jurisdiction pursuant to 28 U.S.C. 1

§§ 1331, 2254; this court has jurisdiction pursuant to 28 U.S.C. §§

1291, 2253, 2254.

2

James P. Barker, Esq. (Argued)

Office of District Attorney

Front & Market Streets

Dauphin County Courthouse

Harrisburg, PA 17101

Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this case, we are asked to extend the jurisprudence

regarding ineffective assistance of counsel to counsel’s failure to

predict the Pennsylvania Supreme Court’s later ruling regarding

the non-retroactivity of an amended death penalty statute. We

decline to extend the law that far.

Charles Vincent Fountain, who is currently serving a life

sentence for a 1976 homicide, appeals from the denial by the

United States District Court for the Middle District of

Pennsylvania of his application for a writ of habeas corpus. 

After the District Court’s denial, we issued a certificate of

appealability (“COA”) on the sole issue of whether his “remand

counsel was ineffective for advising him not to appeal. . . .” 

App. at 5. The resolution of this question turns on whether

Fountain’s remand counsel provided ineffective assistance for

advising him not to take an appeal following his remand

proceedings due to her belief – that later proved to be erroneous

– that the Pennsylvania courts would give retroactive effect to a

death penalty statute enacted after Fountain’s alleged crime.1

I.

In order to resolve this matter, we must set forth in some
3

detail the procedural posture of Fountain’s case, as well as the

various developments in Pennsylvania capital punishment law

that occurred in the late 1970’s.

In late September 1976, a jury sitting in the Court of

Common Pleas for Dauphin County found Fountain guilty on

one count of murder in the first degree and on two counts of

robbery for the 1976 robbery and murder of Joseph Geller. See

generally Commonwealth v. Fountain, 402 A.2d 1014 (Pa.

1979). At sentencing, the jury recommended a punishment of

death for the murder conviction. In returning its recommended

sentence, the jury utilized the then-applicable death-penalty

provisions of Pennsylvania’s Sentencing Code. Id. at 1015.

After this bifurcated trial, Fountain’s trial counsel

requested leave to withdraw. The court granted this request and

thereupon appointed Marilyn Zilli, who was then serving as

Assistant Public Defender for Dauphin County, to represent

Fountain. 402 A.2d at 1015. Zilli represented Fountain in the

post-verdict proceedings before the Court of Common Pleas, on

Fountain’s direct appeal to the Supreme Court of Pennsylvania,

and on the subsequent remand to the Court of Common Pleas.

The trial court followed the jury’s recommendation and

imposed the death penalty on Fountain for the murder

conviction; it further imposed two sentences of ten to twenty

years for the robbery convictions. 402 A.2d at 1015. Fountain

thereafter filed a direct appeal to the Pennsylvania Supreme

Court in which he argued, inter alia, that Pennsylvania’s death

penalty scheme was unconstitutional and that his trial counsel

had provided ineffective assistance at both stages of the

bifurcated trial. Id. at 1015-16.

Meanwhile, in November 1977, while Fountain’s case

was pending on direct appeal, the Supreme Court of

Pennsylvania held in Commonwealth v. Moody, 382 A.2d 442

(Pa. 1977), that the provisions of the Pennsylvania Sentencing

Code pertaining to the imposition of the death penalty were

unconstitutional. Specifically, the Moody Court found that the

Sentencing Code did not allow a jury to consider sufficiently the

particular circumstances of the crime or the character and record
4

of the individual offender. 382 A.2d at 444-49. Of course, the

provisions held unconstitutional in Moody were the very

provisions that the jury and judge had utilized in determining

and imposing Fountain’s punishment. On September 13, 1978,

in direct response to the Moody decision, the Pennsylvania

General Assembly passed a new death penalty sentencing statute

to remedy the previous law’s constitutional shortcomings.

On July 5, 1979, the Supreme Court of Pennsylvania,

relying on its holding in Moody, ruled on Fountain’s direct

appeal and vacated his death sentence. Fountain, 402 A.2d at

1015 (“Moody . . . requires the vacation of the death penalty

imposed in this case and a remand for resentencing.”). With

respect, however, to Fountain’s claims of ineffective assistance

of trial counsel, the Court determined that there was “an

insufficient record” to resolve those issues and thus remanded

the case “to the trial court to conduct an evidentiary hearing on

all preserved claims of ineffective assistance of trial counsel.”

Fountain, 402 A.2d at 1015-16.

Pursuant to this directive, the Court of Common Pleas

conducted an evidentiary hearing regarding Fountain’s

ineffectiveness claims. On December 20, 1979, the court issued

an opinion holding that Fountain’s trial counsel had provided

constitutionally-effective representation. The following day the

court sentenced Fountain to a term of life imprisonment for the

murder conviction and a consecutive sentence of ten to twenty

years for the robbery convictions.

Following the trial court’s rejection of Fountain’s claims

of ineffective assistance of trial counsel, Attorney Zilli wrote her

client a letter in January 1980, the attorney-client communication

upon which Fountain grounds his case. In this letter, Zilli

advised Fountain not to appeal from the court’s decisions on

remand because, in her professional opinion, the risks involved

were too great. In pertinent part, the letter, dated January 7,

1980, read as follows:

As I indicated to you when you were here for

resentencing, we must now make a decision

whether to appeal [the Court of Common Pleas’]
5

finding that counsel rendered effective assistance

in your case.

I have done more research in the area and must tell

you I do not feel an appeal should be taken. My

reasons are as follows. First, I do not believe that

we would get a favorable decision from the

Supreme Court. The Court will most likely not

overturn [the Court of Common Pleas’] decision.... 

Secondly, even if the Supreme Court were to

[reverse] . . . the result would not really be

favorable. Such a decision would mean that you

would be granted a new trial. I must be honest and

say that if you are tried again, I have absolutely no

doubt that you will be found guilty again. At that

point, we would have real problems. As I’ve

explained to you, the law now appears to provide

that you could be subject to the death penalty

again. I’ll admit the law is not clear but the “if” is

not really on your side. I believe it’s simply too

risky.

Please consider all this and call me with your

decision.

Supp. App. at 1.

On January 16, 1980, Fountain wrote Zilli a response

letter in which he wrote that there was “no need in giving [the

Commonwealth] another shot at me as far as the death sentence

goes. . . .” Supp. App. at 3. He thus told Zilli that she could

“drop the [a]ppeal, only under the [u]nderstanding[] that we

know that I would be [s]ubject to the [d]eath [s]entence, should I

be granted a new trial. . . .” Id. As later found by the Superior

Court of Pennsylvania, Fountain abided by counsel’s advice and

thus “ask[ed] Zilli not to pursue appellate proceedings so that he

would not be subject to the death penalty again.” App. at 46.

Shortly after Zilli and Fountain exchanged these

communications, and after the time for Fountain to file an appeal

had passed, the Supreme Court of Pennsylvania decided
 Justice Larsen, joined by Justices Flaherty and Kauffman, 2

dissented from the majority’s decision in Story II. Relying on, inter

alia, Dobbert v. Florida, 432 U.S. 282 (1977), those Justices

concluded that the 1978 legislation should be given retroactive

effect. Story II, 440 A.2d at 493-509 (Larsen, J., dissenting).

6

Commonwealth v. Story, 440 A.2d 488 (Pa. 1981) (“Story II”),

which held that the revised death penalty statute could not be

applied retroactively, a holding contrary to Zilli’s implicit

prediction. In that case, a jury had convicted Stanton Story for a

1974 murder; Story received a death sentence for this crime.

Story II, 440 A.2d at 489. On direct appeal, the Supreme Court

of Pennsylvania held that the murder conviction had been

improperly obtained, and thus granted him a new trial.

Commonwealth v. Story, 383 A.2d 155 (Pa. 1981) (“Story I”). 

In the interim between the 1974 murder and the decision in Story

I, the Pennsylvania Supreme Court had decided Moody and, in

turn, the General Assembly had promulgated the 1978 revamped

death penalty provisions.

At Story’s retrial, a jury again found him guilty of murder

and the Commonwealth, relying on the post-Moody 1978 death

penalty provisions, sought and obtained another death sentence.

Story II, 440 A.2d at 489. On appeal, however, the Supreme

Court of Pennsylvania held that the 1978 provisions did not have

retroactive force and thus were only applicable to murders

committed on or after the statute’s date of enactment, September

13, 1978. Id. at 490. Because the death penalty provisions in

effect at the time of Story’s crime had been found

unconstitutional, see Moody, 382 A.2d at 444, the Court vacated

Story’s sentence of death and imposed a sentence of life

imprisonment. 440 A.2d at 492.2

In December 1996, some fifteen years after he was

resentenced, Fountain filed a petition for collateral relief

pursuant to the Pennsylvania Post-Conviction Relief Act

(“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541 et seq., in the Court

of Common Pleas for Dauphin County. This petition raised

many claims, including Fountain’s claim that, by advising him

not to pursue a direct appeal following the remand proceedings,

Zilli had failed to provide effective assistance in dereliction of
 Notably, Fountain did not file his federal habeas

3

application within the applicable limitations period. Specifically,

because his conviction became “final” prior to the effective date of

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Fountain needed to file his application within a year

of that statute’s enactment, less the time any properly filed

collateral petition was pending in state court. Merritt v. Blaine,

326 F.3d 157, 161 (3d Cir. 2003). Although Fountain’s first PCRA

petition tolled the filing period, his second did not; rather, because

the Superior Court found the second petition untimely, it was not

“properly filed” and thus did not serve to toll the running of the

statute of limitations. See Pace v. DiGuglielmo, U.S. , 125

S. Ct. 1807, 1814 (2005) (“Because the state court rejected

petitioner’s PCRA petition as untimely, it was not ‘properly filed,’

and he is not entitled to statutory tolling under [28 U.S.C.] §

2244(d)(2).”). That being said, the Commonwealth did not raise

the statute of limitations issue in the District Court; likewise, the

District Court did not itself sua sponte raise the issue either. Cf.

7

his rights under the Sixth Amendment to the United States

Constitution. On June 5, 1998, the court denied Fountain’s

petition in all respects.

In an opinion and order dated August 24, 1999, the

Superior Court of Pennsylvania affirmed the denial of Fountain’s

PCRA petition and, in so doing, rejected, inter alia, Fountain’s

claim that Zilli’s performance on remand fell below a

constitutionally acceptable level. The Supreme Court of

Pennsylvania denied allocatur on January 20, 2000.

In March 2000, Fountain filed a second PCRA petition in

state court. On April 9, 2001, the court ruled that the petition

was untimely and thus denied relief; although Fountain appealed

this decision to the Superior Court of Pennsylvania, that court

also denied relief. Fountain did not seek allocatur with the

Supreme Court of Pennsylvania.

In May 2002, Fountain filed a 28 U.S.C. § 2254

application for a writ of habeas corpus in the United States

District Court for the Middle District of Pennsylvania raising

multiple issues. The District Court did not hold a hearing and 3
United States v. Bendolph, 409 F.3d 155, 166 (3d Cir. 2005) (en

banc). Moreover, in addition to its failure raise the issue below, the

Commonwealth’s appellate brief also failed to address the

limitations issue. Under these circumstances, we will deem the

statute of limitations defense waived. See generally Robinson v.

Johnson, 313 F.3d 128, 134 (3d Cir. 2002) (holding that “the

AEDPA limitations period is subject to . . . waiver”); Laborers’

Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.

1994) (“An issue is waived unless a party raises it in its opening

brief. . . .”).

8

rejected all of Fountain’s claims (App. 6, 28).

In its Memorandum and Order dated November 18, 2003, 

the District Court found that Fountain had procedurally defaulted

the vast majority of his claims; it did, however, address on the

merits whether Zilli “was ineffective for failing to properly

advise [Fountain] of the consequences of his right to appeal. . . .” 

App. at 21. Applying the standards contained in the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the District Court held that the Superior Court’s

resolution of that issue had not “‘resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law. . . .’” App. at 24 (quoting 28 U.S.C. §

2254(d)(1)). The District Court further stated that “[t]here exists

no basis for the issuance of a [COA].” App. at 25.

Nonetheless, this court granted Fountain’s request for a

COA. Specifically, we granted Fountain’s request for a COA

“with regard to the appellant’s claim that remand counsel was

ineffective for advising him not to appeal and failing to file a

notice of appeal following resentencing.” App. at 5. That is the

sole issue before this court.

II.

Due to the fact that the District Court did not conduct an

evidentiary hearing on Fountain’s § 2254 application, this

court’s review is plenary. Slutzker v. Johnson, 393 F.3d 373,

378 (3d Cir. 2004); Everett v. Beard, 290 F.3d 500, 507 (3d Cir.

2002). Our de novo review of the District Court’s decision is

governed by the provisions of AEDPA which provide the federal

courts with specific standards for review of state court
9

adjudications. Under AEDPA, federal habeas relief on any

claim decided in a state court is precluded unless the state

court’s adjudication “resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1) (emphasis added).

A state-court decision is “contrary to” clearly established

federal law if (1) the state court applied a rule that contradicts

the governing law as set forth in the Supreme Court’s cases, or

(2) the state court confronted a set of facts that are materially

indistinguishable from a Supreme Court decision and

nevertheless arrived at a result different from the Court’s

precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000)

(O’Connor, J.); Lewis v. Johnson, 359 F.3d 646, 657-58 (3d Cir.

2004); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888

(3d Cir. 1999) (en banc). In turn, satisfaction of the

“unreasonable application” prong of 28 U.S.C. § 2254(d)(1)

requires a habeas petitioner to show that the state court’s

application of Supreme Court precedent was “objectively

unreasonable.” Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d

Cir. 2003). Thus, a federal court’s mere disagreement with the

state court’s application of Supreme Court precedent is not

sufficient; rather, a state court adjudication fails the

“unreasonable application” test only if the state court identified

the correct governing legal rule but unreasonably applied it to

the particular case or if the state court either unreasonably

extended a legal principle from Supreme Court precedent to a

new context in which it should not apply or where it

unreasonably refused to extend such a principle to a new context

in which it should apply. Gattis v. Snyder, 278 F.3d 222, 234

(3d Cir. 2002).

We digress from consideration of the substantive merits

of Fountain’s petition to address the Commonwealth’s

contention that Fountain has waived review of the issue denoted

in the COA because he failed to raise a claim of ineffective

assistance pertaining to Zilli’s advice in the District Court. See

generally Bailey v. United Airlines, 279 F.3d 194, 203-04 (3d

Cir. 2002) (“Because Bailey has not pointed to anything in the

record to demonstrate that he raised this issue with the District
 For the reasons explained by this court in Lewis v. 4

Johnson, 359 F.3d 646 (3d Cir. 2004), the Superior Court’s

10

Court . . . we will not consider this issue.”).

The Commonwealth is correct that Fountain’s original

May 2002 pro se application for a writ of habeas corpus did not

explicitly seek relief from the District Court with respect to the

advice that Zilli provided following the remand proceedings. 

But see United States v. Garth, 188 F.3d 99, 108 (3d Cir. 1999)

(“When properly viewed through the more forgiving lens used to

construe pro se habeas petitions, we conclude that the claim . . .

was properly before the District Court.”). Nonetheless, after

filing his original application with the District Court, Fountain

filed a motion for leave to amend. The Commonwealth did not

oppose this motion and, on August 28, 2002, the District Court

granted it.

As a result, on September 17, 2002, Fountain filed an

amendment to his habeas corpus application in which he

specifically raised the issue of Zilli’s purported ineffectiveness.

Fountain further asked the District Court to incorporate by

reference into his § 2254 application all of his previous PCRA

filings addressing Zilli’s advice and actions. The District Court

granted this request. In sum, Fountain properly presented the

issue of Zilli’s ineffectiveness to the District Court. As a result,

we reject the Commonwealth’s waiver argument and hold the

issue is properly before us.

We turn now to the merits. In conducting our analysis,

we must apply the AEDPA standards to the August 1999 opinion

of the Pennsylvania Superior Court – the highest substantive

state court decision addressing the issue. In rejecting Fountain’s

ineffective assistance of counsel claim, the Superior Court first

applied its decisions in, inter alia, Commonwealth v. Bronaugh,

670 A.2d 147 (Pa. Super. Ct. 1995), and Commonwealth v.

Fanase, 667 A.2d 1166 (Pa. Super. Ct. 1995), and determined

that, “by asking Zilli not to pursue appellate proceedings,”

Fountain had “waived” his right to seek appellate review. Due to

this waiver, the court concluded that his claim of ineffective

assistance was untenable. App. at 45-46.4
application of the waiver rule was indeed “contrary to” federal law.

According to this state-law waiver rule, which Pennsylvania courts

have traditionally applied in ineffective assistance of counsel cases

involving counsel’s failure to file an appeal, “trial counsel cannot

be held ineffective for failing to file an appeal when his client has

not asked him to do so.” Lewis, 359 F.3d at 658 (discussing

Commonwealth v. Dockins, 471 A.2d 851 (Pa. Super. Ct. 1984));

see also Fanase, 667 A.2d at 1169. In Lewis, we held that this per

se waiver rule was “‘contrary to’ clearly established law,”

specifically, Strickland v. Washington, 466 U.S. 668 (1984). 359

F.3d at 659. In the instant case, although the Superior Court

applied the Fanase/Dockins waiver rule in rejecting Fountain’s

claim of ineffective assistance of counsel, it also rendered an

alternative holding in which it addressed the merits of the claim

irrespective of the purported waiver. And, as explained above, the

Superior Court’s on-the-merits resolution of Fountain’s claim was

not contrary to or an unreasonable application of federal law.

Therefore, due to its substantive resolution of the ineffectiveness

issue, the Superior Court’s alternative holding based on the nowdebunked waiver rule as announced in Dockins and Fanase is

irrelevant.

11

The court further noted, however, even apart from Fanase

and the waiver rule, “the substance of [Fountain’s] claim of

ineffective assistance of counsel is without merit.” App. at 46.

The court stated:

The law concerning retroactivity of death

penalty statutes was uncertain at the time Zilli’s

advice was rendered and followed. Pennsylvania

law seemed to suggest a favorable outcome for

[Fountain], while a U.S. Supreme Court case

[Dobbert v. Florida, 432 U.S. 282 (1977),]

suggested that the newly enacted death penalty

might have applied. Zilli advised [Fountain] of his

options, and gave her professional opinion not to

pursue an appeal.

[Fountain] argues the counsel’s advice was

not reasonable. . . . A review of the record

supports the finding by the PCRA court that Zilli
 We acknowledge that, because the Supreme Court issued 5

its decision in Strickland after Fountain’s conviction became final,

Fountain’s case presents a potential non-retroactivity problem. See

generally 28 U.S.C. 2254(d)(1); Teague v. Lane, 489 U.S. 288

(1989) (plurality opinion) (holding that new rules of law should not

ordinarily be applied retroactively to cases on collateral review);

Lloyd v. United States, 407 F.3d 608, 611 (3d Cir. 2005)

(“Generally, a new rule of criminal procedure will not be

applicable to those cases which have become final before the new

rule is announced.”) (internal citation, quotations, and alterations

omitted). The Supreme Court, however, has noted that “a court

need not entertain the [non-retroactivity issue] . . . if the State has

not raised it. . . .” Goeke v. Branch, 514 U.S. 115, 117 (1995) (per

curiam); see also Horn v. Banks, 536 U.S. 266, 271 (2002) (per

curiam); Lewis, 359 F.3d at 653 n.4. Thus, although we are free to

12

had a reasonable basis for her actions. It is

reasonable that in the face of uncertainty as to the

applicability of the death penalty, when counsel is

convinced that her client will be convicted if

retried, allowing the life sentence to stand may be

more prudent than taking [an] appeal. The PCRA

court found Zilli’s actions had a “reasonable basis”

and we find no error on this point. 

[Fountain] further argues that counsel’s

failure to take appeal was predicated on incorrect

interpretation of the law, and therefore proof of

ineffectiveness. The fact that the law prohibiting

retroactive application of death penalty statutes

became codified after Zilli advised [Fountain] is

not evidence of ineffective assistance of counsel. 

Counsel can not be held ineffective for failing to

predict future developments in the law.

App. at 47-49 (internal citations and footnotes omitted).

The test announced in Strickland v. Washington, 466 U.S.

668 (1984), applies to the question of whether Zilli was

constitutionally ineffective in rendering her advice regarding

Fountain’s appeal. Roe v. Flores-Ortega, 528 U.S. 470, 476-77

(2000). Under the two-prong test of Strickland, a prisoner bears 5
raise sua sponte the non-retroactivity issue, we are not bound to do

so and decline to take such a course of action in this case. Cf.

Schiro v. Farley, 510 U.S. 222, 229 (1994) (“[A] State can waive

the Teague bar by not raising it. . . . Although we undoubtedly

have the discretion to reach the State’s Teague argument, we will

not do so in these circumstances.”); Wilmer v. Johnson, 30 F.3d

451, 455 (3d Cir. 1994) (“Although we have the discretion to reach

the . . . [non-retroactivity issue] sua sponte . . . we decline to do so

in this case.”).

 We note in passing that, in ascertaining prejudice in a 6

failure to appeal case, the focus ordinarily should not be on the

substantive merits of the hypothetical appeal but rather on whether

counsel’s constitutionally deficient performance deprived the

defendant of an appeal that he otherwise would have taken. FloresOrtega, 528 U.S. at 484. As noted by the Supreme Court, “it is

unfair to require . . . [a] defendant to demonstrate that his

hypothetical appeal might have had merit . . . . Rather, we require

the defendant to demonstrate that, but for counsel’s deficient

conduct, he would have appealed.” Id. at 486.

13

the burden of showing: (1) that counsel’s representation fell

below an “objective standard of reasonableness”; and (2) that

there is a “reasonable probability” that this ineffectiveness

prejudiced the outcome. 466 U.S. at 688, 693.6

As the above-quoted excerpts from the Superior Court’s

August 1999 opinion make patent, the court analyzed whether

Zilli’s advice and actions were objectively reasonable; therefore,

the court applied the correct rule as set forth in the relevant

Supreme Court cases – i.e., Strickland and its progeny. 

Moreover, the Superior Court did not confront a set of facts that

were materially indistinguishable from a Supreme Court decision

and nevertheless arrive at a result different from the Supreme

Court’s precedent. Lewis, 359 F.3d at 657-58. Thus, the

Superior Court’s decision was not “contrary to” clearly

established federal law. Id.

Furthermore, the Superior Court’s determination that

Zilli’s advice and actions were objectively reasonable was not an

“unreasonable application of” federal law. Under Strickland, a

reviewing court must “evaluate the [reasonableness of the
14

challenged] conduct from counsel’s perspective at the time,” 466

U.S. at 689; thus, this court must judge the reasonableness of

Zilli’s conduct based on the law and the facts as they were

known in January 1980.

As noted by the Superior Court in its August 1999

opinion, the United States Supreme Court had decided Dobbert

v. Florida, 432 U.S. 282 (1977), shortly before Zilli rendered her

advice to Fountain. In that case, the State of Florida charged

Ernest Dobbert with several murders alleged to have occurred

between December 1971 and April 1972. In July 1972,

however, the Florida judiciary struck down Florida’s death

penalty statute. Subsequently, the Florida legislature passed a

new death penalty statute, which corrected the constitutional

problems of the prior law. Dobbert was tried, convicted, and

sentenced to death under this revised statute. 432 U.S. at 288-

90.

In rejecting Dobbert’s Ex Post Facto Clause challenge,

the Supreme Court found no constitutional problem with the

application of the new death penalty procedures to his case. It

concluded that “the changes in the law are procedural, and on the

whole ameliorative . . . .” Dobbert, 432 U.S. at 292. The Court

found dispositive the fact that the new statute “simply altered the

methods employed in determining whether the death penalty was

to be imposed . . . [and thus made] no change in the quantum of

punishment attached to the crime.” Id. at 293-94. The Court also

rejected Dobbert’s argument that there was, for constitutional

purposes, no death penalty “in effect” at the time his crimes were

alleged to have occurred. Id. at 297-98. Noting that Florida’s

prior death penalty statute had not yet been found

unconstitutional at the time of Dobbert’s killings, the Court

opined that, irrespective of whether or not the old statute would

in the future withstand constitutional attack, it clearly indicated

Florida’s view regarding the severity of murder and of the

degree of punishment which the legislature wished to impose

upon murderers. The Court found that “[t]he statute was

intended to provide maximum deterrence, and its existence on

the statute books provided fair warning as to the degree of

culpability which the State ascribed to the act of murder.” 432

U.S. at 297.
15

Considered in perspective of the Supreme Court’s

analysis in Dobbert, a prudent defense lawyer operating in

January 1980 could have reasonably concluded that

Pennsylvania’s post-Moody death penalty provisions might have

retroactive effect. Specifically, counsel could have reasonably

concluded that, like the statute at issue in Dobbert, the 1978

Pennsylvania provisions merely effected procedural, as opposed

to substantive, changes in the law. Indeed, like the Florida

statute at issue in Dobbert, the 1978 Pennsylvania provisions

“simply altered the methods employed in determining whether

the death penalty was to be imposed . . . [and did not effect a]

change in the quantum of punishment attached to the crime.” 

Dobbert, 432 U.S. at 293-94. Considering that Pennsylvania

had a then-presumably valid death penalty statute on the books at

the time of Fountain’s alleged crime, counsel could likewise

have analogized Fountain’s situation to that of Dobbert’s and

reasonably concluded that the Pennsylvania courts would find

that the prior law’s “existence on the statute books provided fair

warning as to the degree of culpability which the State ascribed

to the act of murder.” Dobbert, 432 U.S. at 297.

To be sure, several Pennsylvania state court decisions

circa 1980 suggested that Pennsylvania’s 1978 post-Moody

death penalty statute may not have had retroactive effect. See,

e.g., Commonwealth v. Crowson, 412 A.2d 1363, 1366 (Pa.

1979) (“At the time of this prosecution, the only valid penalty

for murder of the first degree was life imprisonment. . . . 

Accordingly, we vacate the judgment of sentence of death and

impose a sentence of life imprisonment.”); Commonwealth v.

Edwards, 411 A.2d 493, 494 (Pa. 1979) (“The sentence of death

imposed for the murder of the first degree conviction is vacated

and a sentence of life imprisonment is substituted therefore. The

statute authorizing the death sentence was declared

unconstitutional by this Court in [Moody].”). But see 

Commonwealth v. Kalck, 87 A. 61, 64 (Pa. 1913) (“[S]tatutes

which relate to procedure . . . are not to be considered ex post

facto, even though the effect may be to enhance the severity of

the punishment.”). Moreover, Pennsylvania has a long-standing

and codified rule of statutory construction that presumes the

non-retroactivity of statutes. See Commonwealth v. McKenna,

383 A.2d 174, 181 n.13 (Pa. 1978) (“In Pennsylvania there is a
 As suggested by Judge McKee during oral argument, the 7

objective reasonableness of Zilli’s advice is further buttressed by

the fact that three Pennsylvania Supreme Court Justices dissented

from the majority’s holding in Story II that Pennsylvania’s 1978

death penalty provisions did not apply retroactively. Story II, 440

A.2d at 493-509 (Larsen, J., dissenting). Indeed, those Justices

opined that Dobbert had “implicitly overrule[d]” the previous statelaw cases relied on by the Story majority. Story II, 440 A.2d at 493

(Larsen, J., dissenting). Zilli’s advice and performance can hardly

be considered “objectively unreasonable” considering that Justices

Flaherty, Kauffman, and Larsen all reached the same conclusion as

the one she feared – that the 1978 statute applied retroactively to

pre-1978 crimes. At the very least, the Justices’ dissent certainly

indicates that reasonable legal minds operating in 1980 could have

differed on the question.

16

presumption that statutes are not to have retroactive effect.”); 1

Pa. Con. Stat. Ann. § 1926 (“No statute shall be construed to be

retroactive unless clearly and manifestly so intended by the

General Assembly.”). Nonetheless, considered in perspective of

Dobbert, the state of the law regarding the retroactivity (or lack

thereof) of Pennsylvania’s post-Moody death penalty provisions

was certainly an open question in January 1980. Thus, Zilli’s 7

advice, see Supp. App. at 1 (“I’ll admit the law is not clear but

the ‘if’ is not really on your side. I believe it’s simply too

risky.”), was reasonable, notwithstanding the fact that her feared

outcome did not occur.

We note that the record demonstrates that Zilli rendered

her advice only after undertaking what appears to have been a

conscientious examination of the law. During the PCRA hearing

before the Court of Common Pleas, she testified that she

researched the issue thoroughly, discussed the matter with her

colleagues at the Dauphin County Public Defender’s Office, and

was in contact with the death penalty experts throughout the case

before recommending to Fountain that he not proceed.

In sum, in advising Fountain not to appeal, Zilli’s conduct

did not fall below an “objective standard” of reasonableness. 

Strickland, 466 U.S. at 688. Thus, in finding that Zilli had acted

“reasonably,” App. at 48-49, the Superior Court did not reach an
17

outcome “contrary to, or involv[ing] an unreasonable application

of,” clearly established federal law. 28 U.S.C. § 2254(d)(1). 

This court, therefore, will decline to grant Fountain’s petition for

a writ of habeas corpus. Cf. United States v. Gonzalez-Lerma,

71 F.3d 1537, 1542 (10th Cir. 1995) (“Clairvoyance is not a

required attribute of effective representation.”); Wajda v. United

States, 64 F.3d 385, 388 (8th Cir. 1995) (“[C]ounsel’s

performance is not deficient by failing to predict future

developments in the law.”); Elledge v. Dugger, 823 F.2d 1439,

1443 (11th Cir. 1987) (“Reasonably effective representation

cannot and does not include a requirement to make arguments

based on predictions of how the law may develop.”).
18

III.

For the above reasons, we will affirm the District Court’s

order denying Fountain’s application for a writ of habeas corpus.

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