2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-1-2009

Thomas v. Horn

Precedential or Non-Precedential: Precedential

Docket No. 05-9006

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________________

Nos. 05-9006 & 05-9008

______________________

BRIAN THOMAS,

Appellant in No. 05-9006

 v.

MARTIN HORN, Commissioner, Pennsylvania Department

of Corrections; DONALD T. VAUGHN, Superintendent of

the State Correctional Institution at Graterford; JOSEPH P.

MAZURKIEWICZ, Superintendent of the State Correctional

Institution at Rockview; THE DISTRICT ATTORNEY OF

PHILADELPHIA COUNTY

Appellants in No. 05-9008

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 00-cv-803

District Judge: The Honorable Louis H. Pollak

 
2

Argued May 1, 2009

Before: MCKEE, SMITH, and STAPLETON, Circuit Judges

(Filed: July 1, 2009)

Maureen Kearney Rowley

Billy H. Nolas (Argued)

Victor Abreu

David Wycoff

Federal Community Defender Office for the Eastern District

of Pennsylvania

Suite 545 West—The Curtis Building

601 Walnut Street

Philadelphia, PA 19106

Attorneys for Brian Thomas

David Curtis Glebe (Argued)

Thomas W. Dolgenos

Ronald Eisenberg

Arnold H. Gordon

Lynne Abraham

Robert M. Falin

Three South Penn Square

Philadelphia, PA 19107

Attorneys for Martin Horn, Donald Vaughn,

Joseph Mazurkiewicz, and the District Attorney

of Philadelphia County
We refer to Martin Horn, Donald Vaughn, Joseph 1

Mazurkiewicz, and the District Attorney of Philadelphia County

collectively as the “Commonwealth.”

3

 

 OPINION

 

SMITH, Circuit Judge.

In 1986, Brian Thomas was convicted in the Court of

Common Pleas of Philadelphia of murder in the first degree,

burglary, involuntary deviate sexual intercourse, and rape. The

jury sentenced him to death. Thomas was unsuccessful on direct

appeal, see Commonwealth v. Thomas, 561 A.2d 699 (Pa. 1989)

(hereinafter “Thomas I”), and in his state court petition for postconviction relief, see Commonwealth v. Thomas, 744 A.2d 713

(Pa. 2000) (hereinafter “Thomas II”). Thomas then petitioned

the District Court for habeas relief pursuant to 28 U.S.C. § 2254.

Thomas v. Beard, 388 F. Supp. 2d 489 (E.D. Pa. 2005)

(hereinafter “Thomas III”). The District Court granted Thomas

sentencing relief based on his trial counsel’s ineffectiveness, but

denied his guilt-phase claims. Id. at 536. Both Thomas and the

Commonwealth appealed. For the reasons that follow, we will 1

affirm the District Court’s guilt-phase determinations, but will

vacate the District Court’s order for sentencing relief, and
4

remand for an evidentiary hearing concerning the extent, if any,

of trial counsel’s pre-sentencing investigative efforts to obtain

mitigation evidence.

I.

On August 9, 1985, one of Linda Johnson’s roommates

walked into their Philadelphia apartment and found Johnson’s

dead body lying face-down on a broken box-spring in her room.

Johnson’s eyes and face were swollen, and her nose and right

temple were bleeding. She had a bite mark on her cheek and

bruises on her arms and thighs. She was naked from the waist

down, and blood was seeping from her vagina and rectum. A

blood-encrusted crutch was found near her body. It was also

determined that a television set and a can containing about

twenty-nine dollars in change were missing from the apartment.

An autopsy of Johnson revealed that she had three

fractured ribs and a twenty-three inch tear inside her body that

reached from her vagina to her chest cavity. A shirt also had

been inserted into her rectum, through her intestinal wall, and

into her abdominal cavity with a blunt instrument while she was

still alive. Additionally, sperm was found inside her vagina.

Three days after the discovery of Johnson’s body, the

Commonwealth arrested Thomas for her rape and murder, and

for burglarizing her apartment. At trial, three witnesses testified

that they had seen Thomas and Johnson together at or near her
5

apartment within hours of the discovery of her body. The

Commonwealth also introduced medical evidence that: the

sperm found in Johnson’s vagina was deposited around the time

that Thomas and Johnson were last seen together; the sperm was

deposited by a non-secretor (one who does not secrete traces of

blood in bodily emissions); Thomas was a non-secretor; blood

found on Thomas’ boxer shorts was human blood; and the bite

mark on Johnson’s cheek matched Thomas’ teeth. Finally, the

Commonwealth introduced evidence that Thomas was in

possession of both the missing television and the twenty-nine

dollars in change.

On February 6, 1986, the jury found Thomas guilty of

murder in the first degree, rape, involuntary deviate sexual

intercourse, and burglary. During the penalty phase, which

began later that day, the Commonwealth offered evidence of

three aggravating circumstances to support its request for the

death penalty: 1) killing while perpetrating another felony,

namely rape; 2) killing by means of torture; and 3) a significant

history of violent felony convictions. See 42 Pa. Cons. Stat. §

9711(d)(6), (8), (9). The Commonwealth relied on trial

evidence already presented to establish the first two aggravating

circumstances. To establish the third, the Commonwealth

offered evidence of Thomas’ 1978 conviction for felonious

aggravated assault and indecent assault on a three-year old,

which caused injuries to the child’s rectum and intestines, and

Thomas’ 1984 conviction for criminal trespass where Thomas

unlawfully entered a neighbor’s bedroom while she was
6

sleeping.

At the close of the Commonwealth’s penalty-phase

evidence, Thomas’ court-appointed counsel informed the court

that Thomas would not be presenting any mitigating evidence.

The court determined that Thomas should be colloquied

regarding the decision to present no mitigating evidence. After

this colloquy, Thomas, through his counsel, declined the

Commonwealth’s offer to stipulate to his age and to the fact that

he graduated from high school. As a result, Thomas presented

no evidence of mitigating circumstances during the penalty

phase. Nonetheless, in its penalty-phase charge to the jury, the

court recited all the mitigating circumstances listed in

Pennsylvania’s sentencing statute for first-degree murder, 42 Pa.

Cons. Stat. § 9711(e), and told the jury that “you may consider

anything as a mitigating circumstance.”

The jury found the three proposed aggravating

circumstances and no mitigating circumstances. Accordingly,

Thomas was sentenced to death on the first-degree murder

conviction and to consecutive terms of imprisonment of up to

fifty years for the burglary, rape, and involuntary deviate sexual

intercourse convictions.

Thomas, represented by new court-appointed appellate

counsel, unsuccessfully challenged his conviction and sentence

on direct appeal to the Pennsylvania Supreme Court. Thomas I,

561 A.2d at 710. His subsequent petition for relief under
The District Court also determined that counsel’s

2

“incoherent” closing argument at sentencing exacerbated the

prejudice caused by counsel’s other deficient performances.

Thomas III, 388 F. Supp. 2d at 511–513. Although we agree

with the District Court that “counsel’s closing was, at best,

incoherent and, at worst, in the service of the prosecution’s

contention that the jury should select death rather than life

imprisonment” and that “[c]ounsel wholly failed in his duty to

present a closing argument helpful to Thomas,” id. at 513, it

does not appear that Thomas raised these claims in his habeas

7

Pennsylvania’s Post-Conviction Relief Act, 42 Pa. Cons. Stat.

§ 9541 et. seq. (hereinafter “PCRA”), was also denied. Thomas

II, 744 A.2d at 717. Thomas then petitioned the District Court

for habeas relief pursuant to 28 U.S.C. § 2254, raising twentythree grounds for relief. Thomas III, 388 F. Supp. 2d at 495–96

& n.1. The District Court denied Thomas’ petition as to his

guilt-phase claims. Id. at 536. The District Court, however,

determined that Thomas’ trial counsel was ineffective at

sentencing under Strickland v. Washington, 466 U.S. 668

(1984), because counsel failed to investigate and present

mitigating evidence of Thomas’ mental health. Thomas III, 388

F. Supp. 2d at 505–11. The District Court also determined that

Thomas did not knowingly and intelligently waive his right to

present mitigating evidence because the nature of the

proceedings were not adequately explained to him, so the

purported waiver could not cure the prejudice resulting from

counsel’s deficiencies. Id. at 513–16. Accordingly, the District 2
petition, see id. at 495–96, 498. Therefore, we will not address

counsel’s closing argument in our review.

In light of its decision to vacate Thomas’ sentence on 3

the basis of Thomas’ Strickland claim, the District Court

dismissed, without prejudice, two of Thomas’ other claims: per

se ineffective assistance of counsel under United States v.

Cronic, 466 U.S. 648 (1984), and jury bias at sentencing. 388

F. Supp. 2d at 516, 528–30.

8

Court vacated Thomas’ death sentence. Id. at 536.3

Thomas filed a timely appeal, and the District Court

issued a certificate of appealability for three of Thomas’ claims.

The Commonwealth filed a cross-appeal alleging that the

District Court’s decision to vacate Thomas’ sentence was in

error.

II.

The District Court had jurisdiction under 28 U.S.C. §§

2241 and 2254, and we have jurisdiction under 28 U.S.C. §§

1291 and 2253. Since the District Court ruled on Thomas’

habeas petition without an evidentiary hearing, our review of its

decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50

(3d Cir. 2002). This means that we review the state courts’

determinations under the same standard that the District Court

was required to apply. Id.
9

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), “federal courts are to review a state court’s

determinations on the merits only to ascertain whether the state

court reached a decision that was ‘contrary to’ or involved an

‘unreasonable application’ of clearly established Supreme Court

law, or if a decision was based on an ‘unreasonable

determination’ of the facts in light of the evidence presented.”

Fahy v. Horn, 516 F.3d 169, 189 n.20 (3d Cir. 2008). But when

“the state court has not reached the merits of a claim thereafter

presented to a federal habeas court, the deferential standards

provided by AEDPA . . . do not apply.” Appel v. Horn, 250 F.3d

203, 210 (3d Cir. 2001). “In such an instance, the federal

habeas court must conduct a de novo review over pure legal

questions and mixed questions of law and fact, as a court would

have done prior to the enactment of AEDPA.” Id. A state

court’s factual determinations, however, “are still presumed to

be correct, rebuttable upon a showing of clear and convincing

evidence.” Id.

III.

We will first address the three claims before us on

Thomas’ appeal: 1) the trial court’s “reasonable doubt”

instruction to the jury was unconstitutional; 2) the

Commonwealth’s closing argument at sentencing was

unconstitutional, and Thomas’ counsel was ineffective for not

objecting to it; and 3) Thomas’ counsel was ineffective for

failing to life-qualify the jury.
10

A.

At the outset, the parties contest whether AEDPA

deference pursuant to Section 2254(d) applies to Thomas’

claims. Section 2254(d) “applies only to claims already

‘adjudicated on the merits in State court proceedings.’” Appel,

250 F.3d at 210 (quoting 28 U.S.C. § 2254(d)). Here, the PCRA

court ruled on the merits of two of Thomas’ claims—his closing

argument and life-qualification claims—but did not address the

third—his objection to the reasonable doubt instruction. On

appeal, the Pennsylvania Supreme Court dismissed all three

claims as waived because they were not raised in Thomas’

amended PCRA petition. See Thomas II, 744 A.2d at 715 n.4.

The Commonwealth argues that the PCRA court’s decision on

the merits is an “adjudicat[ion] on the merits in State court

proceedings,” which renders Section 2254(d) applicable to two

of Thomas’ claims. Thomas, however, contends that the

Pennsylvania Supreme Court’s determination supercedes the

PCRA court’s decision for the purposes of determining whether

AEDPA deference is due. Accordingly, we must decide

whether a claim has been “adjudicated on the merits in State

court proceedings” when a lower state court decided the claim

on its merits, but the reviewing state court resolved the claim

entirely on procedural grounds.

The Second Circuit has provided a textual analysis of

“adjudicated on the merits” as used in Section 2254(d):
11

When Congress uses a term of art such as

“adjudicated on the merits,” we presume that it

speaks consistently with the commonly

understood meaning of this term. See [Walters v.

Metro. Educ. Enters., Inc., 519 U.S. 202, 207

(1997)]. “Adjudicated on the merits” has a well

settled meaning: a decision finally resolving the

parties’ claims, with res judicata effect, that is

based on the substance of the claim advanced,

rather than on a procedural, or other, ground. See

e.g., Semtek Int’l, Inc. v. Lockheed Martin Corp.,

531 U.S. 497. . . (2001) (noting one definition of

an “on the merits” adjudication as “one that

actually passes directly on the substance of a

particular claim before the court”) (internal

quotation marks and alterations omitted). See

also, e.g., Black’s Law Dictionary 42 (7th ed.

1999) (adjudication: “1. The legal process of

resolving a dispute; the process of judicially

deciding a case. 2. Judgment.”; adjudicate: “1. To

rule upon judicially. 2. Adjudge.”); Webster’s

Third New Int’l Dictionary 27 (1993) (adjudicate:

“to settle finally (the rights and duties of the

parties to a court case) on the merits of issues

raised; enter on the records of a court (a final

judgment, order, or decree of sentence)”).

Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). In

Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004), rev’d on other

grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005), we
12

quoted with approval the Second Circuit’s interpretation of

“adjudicated on the merits.” Id. at 247 (quoting Sellan, 261 F.3d

at 311). Other courts of appeals have done so as well. See Teti

v. Bender, 507 F.3d 50, 56–57 (1st Cir. 2007); Lambert v.

Blodgett, 393 F.3d 943, 969 (9th Cir. 2004); see also Muth v.

Frank, 412 F.3d 808, 815 (7th Cir. 2005); Schoenberger v.

Russell, 290 F.3d 831, 840 (6th Cir. 2002) (Keith, J.,

concurring).

We reiterate today our approval of the Second Circuit’s

interpretation of “adjudicated on the merits.” For the purposes

of Section 2254(d), a claim has been “adjudicated on the merits

in State court proceedings” when a state court has made a

decision that 1) finally resolves the claim, and 2) resolves the

claim on the basis of its substance, rather than on a procedural,

or other, ground. See Rompilla, 355 F.3d at 247 (quoting Sellan,

261 F.3d at 311); see also Lambert, 393 F.3d at 969 (“[A] state

has ‘adjudicated’ a petitioner’s constitutional claim ‘on the

merits’ for purposes of § 2254(d) when it has decided the

petitioner’s right to post conviction relief on the basis of the

substance of the constitutional claim advanced, rather than

denying the claim on the basis of a procedural or other rule

precluding state court review of the merits.”); Sellan, 261 F.3d

at 312 (“For the purposes of AEDPA deference, a state court

‘adjudicate[s]’ a state prisoner’s federal claim on the merits

when it (1) disposes of the claim ‘on the merits,’ and (2) reduces

its disposition to judgment.”).
13

We agree with the Commonwealth that an “adjudication

on the merits” can occur at any level of state court. Unlike other

statutes that address federal review of state court decisions, the

plain language of Section 2254(d) does not specify that the

“adjudication on the merits” be from any particular state court.

Compare 28 U.S.C. § 2254(d) with 28 U.S.C. § 1257(a) (“Final

judgments or decrees rendered by the highest court of a State in

which a decision could be had, may be reviewed by the Supreme

Court by writ of certiorari . . . .” (emphasis added)). But to

qualify as an “adjudication on the merits,” the state court

decision must finally resolve the claim. This means that the

state court’s resolution of the claim must have preclusive effect.

See Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311).

Applying this rule to the state court decisions here, we

see no “adjudication on the merits.” Here, the Pennsylvania

Supreme Court decided Thomas’ claims on purely procedural,

not substantive, grounds. This decision stripped the PCRA

court’s substantive determination of Thomas’ claims of

preclusive effect. See Restatement (Second) of Judgments § 27

cmt. o (1982) (“If the judgment of the court of first instance was

based on a determination of two issues, either of which standing

independently would be sufficient to support the result . . . [and]

[i]f the appellate court upholds one of these determinations as

sufficient and refuses to consider whether or not the other is

sufficient and accordingly affirms the judgment, the judgment

is conclusive as to the first determination.”); 18A Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal
14

Practice and Procedure § 4432 (2d ed. 2002) (“If the appellate

court terminates the case by final rulings as to some matters

only, preclusion is limited to the matters actually resolved by the

appellate court . . . .”); see also, e.g., Sunrise Corp. of Myrtle

Beach v. City of Myrtle Beach, 420 F.3d 322, 327–28 (4th Cir.

2005) (holding that, although the trial court reversed an

administrative determination on, inter alia, Constitutional

grounds, res judicata did not apply to the Constitutional claims

because the appellate court affirmed the trial court’s decision

without reaching the Constitutional issues). The Pennsylvania

Supreme Court’s procedure-based decision remains as the only

resolution of Thomas’ claims with preclusive effect.

Accordingly, there has been no “adjudication on the merits,” and

AEDPA deference is not due. See also Liegakos v. Cooke, 106

F.3d 1381, 1385 (7th Cir. 1997) (noting that Section 2254(d) did

not apply to claims decided on the merits in state trial court, but

disposed of on procedural grounds in the state court of appeals

because “the disposition of the last state court to issue an

opinion determines whether the state has invoked a ground of

forfeiture” (citing Ylst v. Nunnemaker, 501 U.S. 797 (1991))).

The Commonwealth argues that the result we reach today

is contrary to our decision in Nara v. Frank, 488 F.3d 187 (3d

Cir. 2007). It is not. In Nara, the lower state court decided the

merits of the petitioner’s incompetency claim and the appellate

court subsequently reversed this decision on procedural grounds.

Id. at 191–92. Nonetheless, we remarked that the lower state

court “plainly did reach the merits of Nara’s incompetency claim
15

. . . .” Id. at 201. This statement, however, was not directed at

any Section 2254(d) analysis; it was made in the context of

determining whether the District Court correctly accorded a

presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1)

to the factual determinations of the lower state court. Id. at 200.

As we pointed out, “the § 2254(e)(1) presumption of correctness

applies regardless of whether there has been an ‘adjudication on

the merits’ for purposes of § 2254(d).” Id. at 200–01. As a

result, the Nara panel made no ruling on whether the lower

court’s decision on the merits was an “adjudication on the

merits” for the purposes of Section 2254(d). Indeed, we

described the lower court as having “reach[ed],” rather than

adjudicated, the merits of Nara’s claim.

Fahy v. Horn is also consistent with our decision in this

case. In Fahy, we applied AEDPA deference to a lower court’s

decision on the merits even though a state appellate court

dismissed the petitioner’s subsequent appeal as waived. 516

F.3d at 197, 199, 202–03. The unique facts of that case,

however, warranted such a disposition. In Fahy, while his

appeal of the lower court’s decision on the merits was pending,

the petitioner filed a motion to “withdraw his appeal and to

waive all collateral proceedings so that his death sentence could

be carried out.” Id. at 177. The appellate court remanded the

appeal to the lower court “for a colloquy to determine whether

petitioner fully understands the consequences of his request to

withdraw his appeal and to waive all collateral proceedings.”

Id. After conducting the colloquy, the lower court determined
16

that the petitioner’s withdrawal and waiver decisions were made

knowingly and voluntarily, and the petitioner appealed. Id. at

178; see also Commonwealth v. Fahy, 700 A.2d 1256, 1258–59

(Pa. 1997). The appellate court affirmed the validity of the

petitioner’s withdrawal and waiver, and dismissed the appeal.

516 F.3d at 178; 700 A.2d at 1259–60.

On federal habeas review, we acknowledged that “the

state supreme court never reached the merits of [petitioner’s]

petition because of his waiver, [but] we believe that deference

still applies to the [lower state] court’s decision.” 516 F.3d at

203 n.36. We arrived at that conclusion because after the

appellate court affirmed the validity of the petitioner’s

withdrawal and waiver, the lower court’s decision on the merits

was the decision that finally resolved the claims. See Angel v.

Bullington, 330 U.S. 183, 189 (1947) (“If a litigant chooses not

to continue to assert his rights after an intermediate tribunal has

decided against him, he has concluded his litigation as

effectively as though he had proceeded through the highest

tribunal available to him.”). Therefore, the lower court’s

decision was an “adjudication on the merits” that warranted

AEDPA deference.

In sum, for the purposes of Section 2254(d), a claim has

been “adjudicated on the merits in State court proceedings”

when a state court has made a decision that finally resolves the

claim based on its substance, not on a procedural, or other,

ground. Here, neither the Pennsylvania Supreme Court nor the
Notwithstanding the Pennsylvania Supreme Court’s 4

decision to dismiss them on procedural grounds, Thomas has

exhausted all three claims before us on his appeal. See Holland

v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (“[A] petitioner will

have exhausted his state remedies even if the state court does

not address his federal claims on the merits but, instead, rejects

the claims on an independent and adequate state ground.”).

Additionally, there is no procedural bar on federal habeas

review. Since Thomas filed his PCRA petition before the

Pennsylvania Supreme Court abandoned its “relaxed waiver”

doctrine for capital cases in Commonwealth v. Albrecht, 720

A.2d 693 (Pa. 1998), the Pennsylvania Supreme Court’s

dismissal of Thomas’ claims as waived “is not adequate to

support the judgment for the purpose of finding a procedural

default under federal habeas law.” Jacobs v. Horn, 395 F.3d

92, 117–18 (3d Cir. 2005). The Commonwealth does not

contest this point, but does preserve it for potential en banc or

17

PCRA court “adjudicated on the merits” the three claims before

us on Thomas’ appeal. Accordingly, we will review purely legal

questions and mixed questions of law and fact de novo, but

presume the correctness of any factual conclusions made by the

state courts. See Appel, 250 F.3d at 210.

B.

Having decided the appropriate standard of review, we

will move to the merits of the claims at issue in Thomas’

appeal.4
Supreme Court review.

Finally, we reject the Commonwealth’s suggestion to

frame all of Thomas’ claims as challenges to counsel’s

effectiveness, including those that assert trial errors. Our

practice is to entertain the merits of the claims advanced. See,

e.g., Fahy, 516 F.3d at 189 (“Because there are no procedural

barriers to our exercise of jurisdiction, we proceed to the merits

of Fahy’s habeas petition.”).

18

1.

Thomas’ first claim is that the trial court’s instruction on

the definition of reasonable doubt violated due process because

it suggested a higher degree of doubt than is required for

acquittal under the reasonable doubt standard. Here, the trial

court instructed the jury that a reasonable doubt is “such a doubt

as would cause a reasonable person to restrain from acting in a

matter of great importance in his or her own life.” Thomas

argues that the words “restrain from acting” set the

Commonwealth’s burden of proof too low.

“The requirement that guilt of a criminal charge be

established by proof beyond a reasonable doubt dates at least

from our early years as a Nation.” In re Winship, 397 U.S. 358,

361 (1970). Trial courts are free to provide juries with a

definition for reasonable doubt. Victor v. Nebraska, 511 U.S. 1,

5 (1994). Further, “so long as the court instructs the jury on the

necessity that the defendant’s guilt be proved beyond a
19

reasonable doubt, the Constitution does not require that any

particular form of words be used in advising the jury of the

government’s burden of proof.” Id. (internal citations omitted).

Our task on review is to determine “whether there is a

reasonable likelihood that the jury understood the instructions to

allow conviction based on proof insufficient to meet” the

reasonable doubt standard. See id. at 6 (citing Estelle v.

McGuire, 502 U.S. 62, 72 & n.4 (1991)).

The Pennsylvania Supreme Court has a long history of

approving and recommending the “restrain from acting”

formulation that the trial court used here to define reasonable

doubt. In 1954, the Court included this formulation in its

“standard and approved form of charge”: a reasonable doubt

“must be an honest doubt arising out of the evidence itself, the

kind of a doubt that would restrain a reasonable man (or woman)

from acting in a matter of importance to himself (or herself).”

Commonwealth v. Donough, 103 A.2d 694, 697 (Pa. 1954).

Since then, the Court has affirmed the use of the “restrain from

acting” formulation on many occasions. See, e.g.,

Commonwealth v. Marshall, 810 A.2d 1211, 1225 (Pa. 2002)

(“[W]e have explicitly approved of [reasonable doubt]

instructions containing the word ‘restrain’ for nearly five

decades.” (citations omitted)); Commonwealth v. Young, 317

A.2d 258, 261–62 (Pa. 1974) (“[W]e have repeatedly placed our

imprimatur on the charge expressed in Commonwealth v.

Donough . . . .”); Commonwealth v. Burns, 187 A.2d 552,

560–61 (Pa. 1963) (defining reasonable doubt as expressed in
20

Donough).

The United States Supreme Court has not addressed

whether the “restrain from acting” formulation is acceptable.

Instead, it has repeatedly approved of defining reasonable doubt

as “a doubt that would cause a reasonable person to hesitate to

act.” Victor, 511 U.S. at 20 (emphasis added).

Comparing the “hesitate to act” instruction with the

“restrain from acting” formulation, we are inclined to agree with

Thomas that the latter places a lower burden of proof on the

prosecution. “Hesitate” implies a temporary interruption before

acting. See Webster’s Third New Int’l Dictionary 1061 (1966)

(“hesitate . . . 1 a : to hold back in doubt or indecision : avoid

facing a decision, encounter, or problem . . . b : to hold back

from as if from scruple . . . 2 : to delay [usually] momentarily :

Pause . . . 3 : Stammer . . . .”). “Restrain” suggests a more

prolonged, if not permanent, period of inaction. See id. at 1936

(“restrain . . . 1 a : to hold (as a person) back from some action,

procedure, or course : prevent from doing something (as by

physical or moral force or social pressure) . . . b : to limit or

restrict to or in respect to a particular action or course : keep

within bounds or under control . . . 2 a : to moderate or limit the

force, effect, development, or full exercise of : prevent or rule

out excesses or extremes of . . . b : to keep from being

manifested or performed . . . 4 a : to deprive of liberty : place

under arrest or restraint b : to deprive (as of liberty) by restraint

: abridge the freedom of . . . .” (obsolete definitions omitted)).
21

Accordingly, defining reasonable doubt as such a doubt that

would “restrain” one’s actions decreases, to some extent, the

burden of proof that the prosecution would have to meet were

the “hesitate to act” formulation employed instead.

Nonetheless, even though we believe that the “restrain

from acting” formulation lessens the prosecution’s burden of

proof, we cannot say that its use is unconstitutional. The

Supreme Court has never indicated that a reasonable doubt

instruction must demand as much from the prosecution as the

“hesitate to act” formulation does. Instead, the Court has merely

described the “hesitate to act” formulation as a “common sense

benchmark for just how substantial such a doubt must be.”

Victor, 511 U.S. at 20–21. It does not follow that any definition

requiring more doubt than this benchmark is unconstitutional.

The Court has provided us with a standard for assessing

the constitutionality of a reasonable doubt instruction: “‘[T]aken

as a whole, the instructions [must] correctly conve[y] the

concept of reasonable doubt to the jury.’” Id. at 6 (quoting

Holland v. United States, 348 U.S. 121, 140 (1954)). Applying

this standard, the Court has approved of reasonable doubt

instructions that defined the term as “the kind of doubt . . .

which you folks in the more serious and important affairs of

your own lives might be willing to act upon,” Holland, 348 U.S.
The charge reviewed in Holland thus spoke in terms of 5

a doubt sufficient to provide a basis for affirmative action in an

important personal matter, as contrasted with the charge before

us which spoke in terms of a doubt sufficient to provide a basis

for choosing not to act in such a matter. Both, however, spoke

of a doubt sufficient to control one’s behavior, as contrasted

with a doubt sufficient to cause one to “hesitate to act.” In

Holland, the Court expressed a preference for a “hesitate to act”

charge but held that the charge given there was “not of the type

that could mislead the jury into finding no reasonable doubt

when in fact there was some.” 348 U.S. at 140. While we have

concluded that the charge given here could be understood to

lower the government’s burden to some degree from that

imposed by a “hesitate to act” charge, that degree is no greater

than the degree of lowering in Holland, and we are confident

that here, too, the charge was not of the type that could mislead

the jury.

22

at 140, “not a mere possible doubt . . . [but] that state of the 5

case which, after the entire comparison and consideration of all

the evidence, leaves the minds of the jurors in that condition that

they cannot say they feel an abiding conviction, to a moral

certainty, of the truth of the charge,” Victor, 511 U.S. at 7

(emphasis omitted), and “an actual and substantial doubt

reasonably arising from the evidence, from the facts or

circumstances shown by the evidence, or from the lack of

evidence on the part of the State, as distinguished from a doubt

arising from mere possibility, from bare imagination, or from

fanciful conjecture,” id. at 18 (emphasis omitted).
23

In contrast, the Court has held only one reasonable doubt

instruction to be constitutionally deficient:

It must be such doubt as would give rise to a

grave uncertainty, raised in your mind by reasons

of the unsatisfactory character of the evidence or

lack thereof. A reasonable doubt is not a mere

possible doubt. It is an actual substantial doubt.

It is a doubt that a reasonable man can seriously

entertain. What is required is not an absolute or

mathematical certainty, but a moral certainty.

Cage v. Louisiana, 498 U.S. 39, 40 (1990). In Cage, the Court

reasoned that “the words ‘substantial’ and ‘grave,’ as they are

commonly understood, suggest a higher degree of doubt than is

required for acquittal under the reasonable doubt standard.” Id.

at 41. The Court continued: “[w]hen those statements are then

considered with reference to ‘moral certainty,’ rather than

evidentiary certainty, it becomes clear that a reasonable juror

could have interpreted the instruction to allow a finding of guilt

based on a degree of proof below that required by the Due

Process Clause.” Id.

Viewed against this jurisprudential background, we

conclude that the reasonable doubt instruction used here was

constitutional. Although “restrain from acting” requires more

doubt to acquit than “hesitate to act,” it does not, by itself, so

raise the threshold as to “suggest a higher degree of doubt than
The Pennsylvania Supreme Court has also rejected

6

arguments that the word “hesitate” must replace “restrain” in a

proper reasonable doubt instruction. See, e.g., Commonwealth

v. Brown, 368 A.2d 626, 634 (Pa. 1976) (dismissing an

“object[ion] to the use of the word ‘restrain’, and [the]

suggest[ion that] ‘hesitate’is a more appropriate standard”); see

also, e.g., Commonwealth v. Porter, 728 A.2d 890, 899 (Pa.

1999) (“[T]he distinction between ‘hesitate before acting’ and

‘restrain before acting’ is de minimis and clearly such a subtle

variation in phrasing would not be an abuse of the trial court’s

discretion.”). It has done so even though Section 7.01(3) of the

Pennsylvania Suggested Standard Criminal Jury Instructions

recommends providing juries with a definition of reasonable

doubt that includes the word “hesitate.” See Commonwealth v.

Collins, 957 A.2d 237, 264 (Pa. 2008); Commonwealth v. Rios,

920 A.2d 790, 805–06 (Pa. 2007); Commonwealth v. Carson,

913 A.2d 220, 254 (Pa. 2006); Porter, 728 A.2d at 899–900.

24

is required for acquittal under the reasonable doubt standard.”

See id. at 41. As a result, the trial court’s mere use of the word

“restrain,” though perhaps not ideal, is not enough to render its

entire instruction unconstitutional.6

2.

Thomas’ second claim is that the Commonwealth’s

closing argument at sentencing violated his due process and

Eighth Amendment rights by inviting the jury to consider an

improper sentencing factor—future dangerousness. He
25

contends that the Commonwealth’s conduct was

unconstitutional for two reasons: 1) it urged the jury to consider

future dangerousness when contemplating the death penalty,

which a jury cannot do under Pennsylvania law; and 2) it created

an unacceptable risk that the jury believed, in error, that Thomas

could be released on parole if he were not sentenced to death.

Thomas also claims that trial counsel was ineffective for failing

to object to the Commonwealth’s argument or to seek curative

instructions.

In reviewing the constitutionality of the Commonwealth’s

conduct at sentencing, “[t]he relevant question is whether the

prosecutors’ comments ‘so infected the trial with unfairness as

to make the resulting conviction a denial of due process.’”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Here, at

sentencing, the Commonwealth stated the following as part of

its closing argument to the jury:

There sits Brian Thomas, there sits

convicted Brian Thomas. You have found what

he did to Linda Johnson. You heard what

happened to [the] three year old [whom he

assaulted]. . . . You heard what happened to [the

neighbor whose bedroom he trespassed into].

It is not for me to say, it is not for the

Judge to say. Only you can say enough. Only you

can say stop. 
26

I submit to you, ladies and gentlemen, that

Brian Thomas has used up his chances. I would

submit to you that it’s time for somebody to say

Brian Thomas, you have forfeited your right to

live among civilized people by your conduct, by

your behavior, what you did, why you did it and

how you did it. You should not be allowed to

continue.

There is not a cry here, ladies and

gentlemen, for vengeance. There is not a cry here

to bring back a person who is dead. [B]ut there is

a cry here, ladies and gentlemen, for the type [of]

person who would brutally beat, rape and

sexual[ly] mutilate another human being. . . .

[I]t’s time for somebody to say in some way Brian

Thomas, enough is enough. The citizens of

Philadelphia can’t tolerate you in their midst, take

you out somewhere where your type [of] conduct

will not ever be a threat to the citizens of

Philadelphia again.

[* * *]

. . . I submit to you that based on your

findings and based on the facts of this case, you

must say there is no mitigation, the buck stops

here, and for what you did, Brian Thomas, you

should die. [Y]ou should die.

The Commonwealth’s closing does not urge the jury to
27

consider Thomas’ future dangerousness as a sentencing factor.

Taken in isolation, certain statements may seem to border on

such an appeal. But when viewed in context, the

Commonwealth’s message is clear: Thomas’ crimes, both past

and present, are so repulsive that they warrant the death penalty.

The Commonwealth’s references to Johnson’s murder, Thomas’

assault of the three-year-old, and his trespass into a neighbor’s

bedroom demonstrate that the Commonwealth was framing its

argument with the aggravating circumstance that it sought to

show at sentencing: Thomas’ history of violent felonies. With

that in mind, the Commonwealth’s calls for the jury to “say

enough,” “say stop,” and to tell Thomas that “[y]ou should not

be allowed to continue,” are plain allusions to its claim that

“Brian Thomas has used up his chances,” and that “the buck

stops here, and for what you did, Brian Thomas, you should

die.” Indeed, the Commonwealth’s use of the word “tolerate”

and the phrase “your type [of] conduct” indicates that it wanted

the jury to impose the death penalty because the “citizens of

Philadelphia” had had enough of Thomas’ past criminal

conduct, not because Thomas could be a threat to society in the

future. Cf. Simmons v. South Carolina, 512 U.S. 154, 157

(1994) (characterizing an argument that death “would be ‘a

response of society to someone who is a threat. Your verdict

will be an act of self-defense’” as an argument to consider future

dangerousness as a sentencing factor).

Nor does the Commonwealth’s argument create an

unacceptable risk that the jury believed that, if it did not impose
Because we see no merit to Thomas’ underlying claim 7

of error, we also hold that counsel was not ineffective for

failing to object. See Moore v. Deputy Comm’rs of SCIHuntingdon, 946 F.2d 236, 245 (3d Cir. 1991) (concluding that

counsel was not ineffective for failing to object where “there

would have been no basis for the objection”).

28

the death penalty, Thomas could be released on parole. Plainly,

the Commonwealth never mentioned parole, and we do not read

its argument as suggesting that Thomas could be paroled from

a life sentence. As a result, the Commonwealth’s conduct at

sentencing was constitutional.7

3.

Thomas’ third claim is that his trial counsel was

ineffective for failing to life-qualify the jury—to determine that

each juror could vote for a life sentence. Strickland sets the

relevant test: Thomas must show that 1) his counsel’s

performance was deficient, and 2) his counsel’s deficient

performance caused him prejudice. 466 U.S. at 687. To be

deficient, counsel’s performance must fall below an objective

standard of reasonableness. Id. at 687–88. To demonstrate

prejudice, Thomas “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

In Morgan v. Illinois, 504 U.S. 719 (1992), the Supreme
29

Court held that defendants had a right to life-qualify potential

jurors at voir dire. At issue here is not whether Thomas’ trial

counsel should have known he had a right to ask life-qualifying

questions at the time the jury was empaneled—six years before

Morgan was decided. It is clear that he knew that he could: he

asked one juror life-qualifying questions, and she responded that

she could vote for a life sentence under certain circumstances.

The only question in this case is whether counsel’s failure to ask

the rest of the jurors life-qualifying questions constituted

ineffectiveness. We believe that it does not.

First, we note that the Supreme Court has never imposed

an obligation on trial counsel to life-qualify a jury. See Morgan,

504 U.S. at 726 (framing the issue as “whether on voir dire the

court must, on defendant’s request, inquire into the prospective

jurors’ views on capital punishment” (emphasis added)).

Second, Thomas has not identified any relevant

“[p]revailing norms of practice as reflected in American Bar

Association standards and the like,” Strickland, 466 U.S. at 688,

that suggest that Thomas’ counsel had an obligation to lifequalify the jury.

Third, the record does not indicate that Thomas’ counsel

had any reason to life-qualify any additional jurors. Thomas

suggests that two jurors showed so much enthusiasm for the

death penalty in their responses to the court’s death-qualification

question that they should have been life-qualified: 1) one juror
30

responded with “I believe in the death penalty” when asked

whether he had “any moral, religious or ethical beliefs which

could prevent [him] from voting for the death penalty in a

proper case”; and 2) another juror answered “[n]o” before the

court finished asking the question. To us, however, neither

response is so indicative of a bias in favor of the death penalty

that effective counsel would have asked to life-qualify these two

jurors. There are a myriad of reasons why the first juror chose

to use the words that he did, and the second juror chose to

answer as quickly as he did. Without more, we will not

speculate that they did so because of any enthusiasm for the

death penalty.

Fourth, even if Thomas’ counsel were deficient for

failing to life-qualify every juror, Thomas has not shown

prejudice. Since Pennsylvania’s death sentence can only be

imposed by a unanimous jury, see 42 Pa. Cons. Stat. §

9711(c)(iv), Thomas has demonstrated prejudice if “‘there is a

reasonable probability that, but for counsel’s unprofessional

errors . . .’ one juror [would have] voted to impose a sentence of

life imprisonment rather than the death penalty.” Bond v. Beard,

539 F.3d 256, 285 (3d Cir. 2008) (quoting Strickland, 466 U.S.

at 694). Thomas has provided not a shred of evidence

suggesting any probability that, had his trial counsel lifequalified every juror, at least one juror would have voted to

sentence Thomas to life imprisonment. He simply invites our

speculation. Accordingly, Thomas’ claim for habeas relief on

this ground was properly denied.
31

IV.

We turn next to the issues that the Commonwealth raises

on cross-appeal. The District Court granted Thomas sentencing

relief because it determined that two of his claims had merit: 1)

Thomas’ trial counsel was ineffective for failing to investigate

and present mitigating evidence, and 2) Thomas’ waiver of his

right to present mitigating evidence was not made knowingly

and intelligently. Thomas III, 388 F. Supp. 2d at 505–11,

513–16. On cross-appeal, the Commonwealth argues that the

District Court erred in vacating Thomas’ sentence because 1) the

District Court applied the wrong standard of review, 2) there is

insufficient evidence that Thomas’ counsel failed to investigate

mitigating evidence, and 3) any deficiency by counsel did not

prejudice Thomas.

A.

 The Commonwealth claims that the District Court erred

in reviewing Thomas’ ineffective assistance and waiver claims

de novo because they were “adjudicated on the merits” by the

Pennsylvania Supreme Court, and AEDPA deference pursuant

to Section 2254(d) is warranted. We disagree.

It is clear that Thomas raised both the ineffective

assistance and waiver claims in state court. On direct appeal,

Thomas asserted that he did not waive his right to present

mitigating evidence knowingly and intelligently. Indeed, he
32

submitted an affidavit that set out the factual basis for this

claim:

I did not then understand that I could present

evidence concerning my character as a mitigating

circumstance during the penalty phase. I was

under the belief that I could only present evidence

relating to the circumstances of the offense. This

is the reason why I declined to present any

testimony at the penalty hearing. . . . At no time

did my attorney explain to me that evidence

concerning my character could or should be

presented for the jury’s consideration at the

penalty hearing.

In his PCRA petition, Thomas repeated this claim, and added an

allegation that counsel was ineffective for failing to investigate

and present mitigating evidence that was available at the time of

his sentencing.

Even though Thomas raised these claims during the

course of the state court proceedings, no state court actually

adjudicated them on their merits. The PCRA court and the

reviewing Pennsylvania Supreme Court declined to reach the

merits of each. Instead, both courts determined that the claims

“have previously been decided by [the Pennsylvania Supreme

Court] on direct appeal.” Thomas II, 744 A.2d at 714 & n.3. In

reaching that conclusion, both courts were mistaken. First, the

Pennsylvania Supreme Court could not have addressed Thomas’
33

ineffective assistance claim on direct appeal because he raised

it for the first time in his PCRA petition. Second, on direct

appeal, the Pennsylvania Supreme Court never determined

whether Thomas knowingly and intelligently waived his right to

present mitigating evidence. On direct appeal, the Pennsylvania

Supreme Court addressed only one mitigating evidence issue:

whether Thomas understood that he could present mitigating

evidence. Thomas I, 561 A.2d at 710 (“Finally, Appellant

complains that his trial counsel did not advise him that he could

put on evidence of mitigating circumstances and that this

omission was prejudicial ineffectiveness.” (emphasis added)).

But Thomas’ waiver claim raised a completely different issue:

he asserted that his waiver was not knowing and intelligent

because he did not understand the nature and purpose of

mitigating evidence. Therefore, no state court actually decided

the claims that formed the basis of the District Court’s decision

to grant Thomas habeas relief.

The Commonwealth points out that the Pennsylvania

Supreme Court, in reviewing Thomas’ PCRA petition, stated

that “[t]he issue of the presentation of mitigating evidence, in all

its possible manifestations, was determined by this Court’s

previous decision.” Thomas II, 744 A.2d at 714 n.3. The

Commonwealth urges us to accept the Pennsylvania Supreme

Court’s statement at face value and view Thomas’ claims as

“adjudicated on the merits.” This we cannot do. For the

purposes of determining whether there was an “adjudication on

the merits” in state court, what matters most is what the state
34

court actually did, not what it said it did. We cannot blindly

accept a court’s ex post characterization of its prior action when

that characterization is at odds with what we conclude the

court’s prior action plainly was.

“[I]f an examination of the opinions of the state courts

shows that they misunderstood the nature of a properly

exhausted claim and thus failed to adjudicate that claim on the

merits, the deferential standards of review in AEDPA do not

apply.” Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002).

Here, the record plainly shows that while Thomas raised the

claims at issue in state court, the state courts did not reach their

merits. Accordingly, there was no “adjudication on the merits,”

and the District Court was correct in reviewing the claims de

novo. See Appel, 250 F.3d at 210.

B.

The District Court addressed Thomas’ ineffective

assistance and waiver claims together, Thomas III, 388 F. Supp.

2d at 504, but Thomas’ ineffective assistance claim was the

focal point of its analysis. First, the District Court concluded

that trial counsel was ineffective for failing to investigate and

present mitigating evidence. Id. at 505–11. Second, the District

Court determined that Thomas’ waiver of his right to present

mitigating evidence did not cure the prejudice caused by

counsel’s deficiency because the waiver was not made

knowingly and intelligently. Id. at 513–16. Accordingly, in
35

reviewing the District Court’s decision and the merits of the

Commonwealth’s cross-appeal, we will concentrate on Thomas’

ineffective assistance of counsel claim.

The Commonwealth directs our attention to the

evidentiary record that Thomas is obligated to produce in

support of his ineffective assistance claim. It points out that

courts assessing attorney performance must apply a “strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Strickland, 466 U.S. at

689. Here, the Commonwealth sees no evidence on the record

concerning the extent, if any, of Thomas’ counsel’s presentencing investigation into mitigating evidence. It argues that,

based on such a record, Thomas cannot possibly demonstrate

that his counsel was deficient. Accordingly, the Commonwealth

asserts that we must deny Thomas’ request for habeas relief.

We agree with the Commonwealth that the record is

sparse. The only documentary evidence directly pointing to a

failure to investigate is a declaration from Thomas’ aunt, signed

nine years after Thomas’ sentencing, that states that no attorney

or investigator asked her about Thomas’ life and mental health

while he was on trial. But Thomas has sought to prove that trial

counsel did not investigate, so Thomas’ failure to discover

evidence of an investigation is itself a sign that none occurred.

Therefore, it is entirely appropriate for us to consider what

Thomas has looked for, but cannot find. Here, after Thomas

purportedly waived the presentation of mitigating evidence,
36

there was no proffer from counsel identifying the investigative

measures he had undertaken, or what evidence he was prepared

to present. Additionally, a search of the state court file, where

Thomas’ court-appointed counsel and the court would have

lodged certain case-related documents, yielded nothing

suggesting an investigation—no request for a mitigation

investigator, no request for funds for a mitigation investigation,

no request for a defense mental health expert, and no subpoenas

for mental health records. Had Thomas’ counsel performed any

investigation, we would expect eithersome mention of it in open

court or some “paper trail” suggesting it in the record of

proceedings. The absence of both implies that counsel did no

investigating.

Nonetheless, from this record, we cannot simply jump to

the conclusion that Thomas’ counsel was deficient. Counsel’s

performance enjoys a presumption of effectiveness, and we must

“judge the reasonableness of counsel’s challenged conduct on

the facts of the particular case, viewed as of the time of

counsel’s conduct.” Id. at 689–90. “A reviewing court cannot

make such a determination on a clean slate.” Marshall, 307

F.3d at 106. This means that based on the present record, we

cannot affirm the District Court’s conclusion that Thomas’

counsel was deficient at sentencing.

We by no means go so far as to deny Thomas the

possibility of relief. This is not the first time we have been

asked to determine counsel’s effectiveness where “the picture is
37

less than complete.” Id. In Marshall, we also had “no record

before us as to what preparation or investigation, if any, was

performed by counsel in anticipation of the penalty phase . . . .”

Id. We therefore “conclude[d] that a District Court hearing is

essential, and remand[ed] for a new ruling by the District Court

as to Strickland based upon a complete record.” Id. at 117.

Likewise, we believe that any resolution of Thomas’ Strickland

claims here is premature without the benefit of an evidentiary

hearing. Accordingly, we will remand the case for a hearing

concerning the extent, if any, of Thomas’ counsel’s presentencing investigative efforts to obtain mitigating evidence.

C.

The Commonwealth urges that an evidentiary hearing

would be inappropriate for two reasons: 1) Thomas has failed to

develop a factual record in state court, so a hearing would be

barred by 28 U.S.C. § 2254(e)(2); and 2) even if counsel were

deficient, Thomas cannot prevail because he was not prejudiced.

Neither of these arguments are persuasive.

1.

First, Thomas did not “fail[] to develop the factual basis

of a claim in State court” in such a way that causes Section
According to 28 U.S.C. § 2254(e)(2)’s opening clause, 8

“[i]f the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim . . . .” Sections 2254(e)(2)(A)

and (B) list three exceptions to the opening clause, which are

not at issue here.

38

2254(e)(2) to bar an evidentiary hearing. “Under the opening 8

clause of § 2254(e)(2), a failure to develop the factual basis of

a claim is not established unless there is lack of diligence, or

some greater fault, attributable to the prisoner or the prisoner’s

counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000).

“Diligence . . . depends upon whether the prisoner made a

reasonable attempt, in light of the information available at the

time, to investigate and pursue claims in state court; it does not

depend . . . upon whether those efforts could have been

successful.” Id. at 435. In Thomas v. Varner, 428 F.3d 491 (3d

Cir. 2005), we concluded that the petitioner’s request for an

evidentiary hearing in the state post-conviction court, which was

denied, showed sufficient diligence to render Section 2254(e)(2)

inapplicable. Id. at 498. Likewise, here, Thomas requested an

evidentiary hearing in the PCRA court to develop the factual

record for his claim that trial counsel failed to investigate

mitigating evidence. Therefore, Section 2254(e)(2) does not

apply. See also Williams, 529 U.S. at 437 (“Diligence will

require in the usual case that the prisoner, at a minimum, seek an

evidentiary hearing in state court in the manner prescribed by

state law.”).
39

Second, without a fully developed record, we cannot

foreclose the possibility that Thomas will be able to show

prejudice—a reasonable probability that, but for counsel’s

deficiency, one juror would have voted to impose a sentence of

life imprisonment. See Bond, 539 F.3d at 285. In Pennsylvania,

the jury must impose a sentence of life imprisonment unless it

unanimously finds that the aggravating circumstances outweigh

the mitigating circumstances. 42 Pa. Cons. Stat. § 9711(c)(iv).

“[E]xtreme mental or emotional disturbance” is specifically

listed as a mitigating circumstance that Pennsylvania juries may

consider when deciding whether to impose the death penalty. 42

Pa. Cons. Stat. § 9711(e)(2). Here, the Commonwealth does not

dispute that even the most cursory search would have yielded

evidence of Thomas’ long history of mental illness. This history

includes a court commitment to a psychiatric hospital when

Thomas was sixteen, and a mental health evaluation when he

was eighteen that described him as having “responses . . .

similar to those in the literature describing paranoid

schizophrenia,” and “serious mental disturbance.” Additionally,

had counsel sought to examine Thomas’ mental health prior to

his sentencing, the results likely would have revealed some

mental illness: according to a court-ordered psychological

evaluation conducted the day of Thomas’ sentencing,

[a]t the present time, this Defendant can be best

described as suffering from Severe Multiple

Personality Disorders, and continues to indicate

Sociopathic, Reactive Paranoid, and Schizoid
40

Traits. There is continued indication, both

clinically as well as on psychological testing, of a

great deal of underlying psychopathology which

is clearly focused in the sexual area, with

indication of sexual identity confusion, hostility

and ambivalence toward women, and indication

of very primitive, brittle, and inadequate controls.

Placed in the hands of effective counsel, there is a reasonable

probability that this evidence would have persuaded at least one

juror to impose life imprisonment rather than the death penalty.

2.

The Commonwealth argues that even assuming that

effective counsel would have discovered Thomas’ mental health

history, no prejudice could have resulted because Thomas would

not have let his counsel present any mitigating evidence. The

Commonwealth asserts that Schriro v. Landrigan, 550 U.S. 465

(2007), and Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), are

indistinguishable from the present case and require us to hold

that there is no prejudice here. We disagree.

In Landrigan, the Supreme Court confronted for the first

time “a situation in which a client interferes with counsel’s

efforts to present mitigating evidence to a sentencing court.”

550 U.S. at 478. There, the petitioner’s counsel informed the

trial court that he had advised the petitioner “very strongly” that
41

the petitioner should present mitigating evidence. Id. at 469.

The trial court questioned the petitioner, and the petitioner

confirmed that he instructed his counsel not to present

mitigating evidence and that he understood the consequences.

Id. When the petitioner’s counsel was proffering, at the court’s

request, the mitigating evidence he intended to present, the

petitioner interrupted multiple times to explain away the

mitigating characteristics of the evidence, and also to reaffirm

that he did not want the evidence presented in court. Id. at 470.

Finally, at the end of the sentencing hearing, the petitioner stated

that “I think if you want to give me the death penalty, just bring

it right on. I’m ready for it.” Id. Applying AEDPA’s

deferential standard of review, the Supreme Court determined

that the state appellate court reasonably concluded that the

petitioner had refused to allow the presentation of mitigating

evidence, and this refusal prevented any showing of prejudice.

Id. at 475–77.

In Taylor, the petitioner wrote a confession letter to the

police, which stated that “I want the maximum sentence.” 504

F.3d at 421. At the petitioner’s guilty plea hearing, the

petitioner agreed with his counsel’s statement that he had

instructed counsel not to contact any witnesses or to call any

medical personnel who had spoken to him, and that he

understood that “the likely result will be imposition of the death

penalty.” Id. At sentencing, the petitioner informed the court

that he declined to present any mitigating evidence. Id. at 422.

The court then sentenced the petitioner to death. Id. In the
42

subsequent state post-conviction relief proceedings, the state

court conducted an evidentiary hearing, denied the petitioner’s

request for relief, and found that the petitioner had discussed the

possibility of presenting testimony of mitigating circumstances

with his counsel, that the petitioner rejected the idea of doing so,

and that the petitioner personally called potential witnesses to

tell them not to attend his sentencing. Id. at 424. The state

appellate court affirmed these findings and the court’s holding.

Id.; see also Commonwealth v. Taylor, 718 A.2d 743 (Pa. 1998).

Applying AEDPA’s deferential standard of review, we

determined in Taylor that the state post-conviction court’s

factual and legal conclusions were reasonable. 504 F.3d at 452,

455. Comparing the petitioner to the one in Landrigan, we

agreed with the petitioner that “he was not belligerent and

obstructive in court like the defendant in Landrigan . . . , but the

record shows that his determination not to present mitigating

evidence was just as strong.” Id. at 455. As a result, “whatever

counsel could have uncovered, [the petitioner] would not have

permitted any witnesses to testify, and was therefore not

prejudiced by any inadequacy in counsel’s investigation or

decision not to present mitigation evidence.” Id.

The Commonwealth claims that like the petitioners in

Landrigan and Taylor, Thomas would have prevented his

counsel from presenting any mitigating evidence, no matter

what it was, thus obviating any possibility of prejudice. It points

to Thomas’ conduct at his sentencing for factual support. Yet
43

based on our review of the record, we believe that both

Landrigan and Taylor differ significantly from the present case.

As an initial matter, AEDPA deference pursuant to Section

2254(d) constrained federal review in both Landrigan and

Taylor. It does not apply here. See supra Part IV.A. This

means that while the Pennsylvania courts’ determinations of

factual issues “shall be presumed to be correct,” we review de

novo the mixed question of law and fact of whether Thomas can

show prejudice. See Appel, 250 F.3d at 210.

Moving to the merits of the Commonwealth’s argument,

we cannot conclude that Thomas would have interfered with the

presentation of all mitigating evidence. Thomas’ colloquy at

sentencing focused narrowly on whether he wanted to take the

stand himself:

[THOMAS’ COUNSEL]: Mr. Thomas, you recall

during the case in chief that we inquired as to

whether or not you wanted to testify on your own

behalf. Do you recall that?

[THOMAS]: Yeah, I do. Why do I answer all

these questions before? We done be over that

already. No, I don’t want to get on the stand.

THE COURT: Well, this is a different portion.

[THOMAS]: I still don’t want to get on the stand.
44

THE COURT: Under no conditions?

[THOMAS]: No.

THE COURT: Is this your decision?

[THOMAS]: Yes, it is.

THE COURT: Did you discuss it with your

lawyer, Mr. Watson?

[THOMAS]: Yes.

THE COURT: And you already told him, I would

like to repeat, but it’s your decision not to take the

stand at this penalty stage of the hearing or even

to present any evidence. Is that your independent

and voluntary decision?

[THOMAS]: It is.

We acknowledge what is plainly of record: the sentencing court

did ask Thomas to confirm that “it’s your decision not to . . .

present any evidence.” Yet we cannot ignore that this question

was part of a compound question that also asked Thomas to

reaffirm that “it’s your decision not to take the stand,” and the

remainder of the questions in the colloquy only concerned

Thomas’ desire to testify on his own behalf. Accordingly,

Thomas’ terse answer to this inquiry does not display an intent

to interfere with the presentation of mitigating evidence that is
45

strong enough to preclude a showing of prejudice. To us, the

only thing that Thomas clearly disclaimed at his colloquy was a

desire to testify on his own behalf.

The followup questions asked by the Commonwealth fare

even worse. At most, Thomas’ responses indicate that he had no

witnesses to call at his sentencing:

[THE COMMONWEALTH]: Mr. Thomas, do

you have any witnesses that you would like to call

at this time at this stage of the proceeding?

[THOMAS]: No.

[THE COMMONWEALTH]: Are you sure about

that?

[THOMAS]: No.

[* * *]

THE COURT: You mean no, you don’t have any

witnesses to call.

[THOMAS]: Right.

[THE COMMONWEALTH]: There is no witness

in existence you would like to call, sir, at this

time. Yes or no?
46

[THOMAS]: I said no.

This exchange provides no support for the Commonwealth’s

argument that Thomas would have prevented the presentation of

all mitigating evidence.

Nor does Thomas’ refusal to stipulate to his age and

education tip the scales in the Commonwealth’s favor. We

agree with the Commonwealth that Thomas’ age and education

are relatively innocuous facts, and Thomas’ decision not to

stipulate to them is odd. We cannot agree, however, that this

proves that Thomas was not prejudiced. While Thomas’ refusal

to stipulate is consistent with the Commonwealth’s position, it

is equally consistent with other scenarios that the record

supports. Indeed, Thomas has claimed that he did not

understand the nature and purpose of mitigating evidence.

Thomas’ failure to stipulate could be viewed as a symptom of

this fundamental misunderstanding, and not as an affirmative

declaration against the presentation of all mitigating evidence.

In sum, this case bears no resemblance to Landrigan and

Taylor. Thomas never indicated that he would interfere with or

otherwise prevent the presentation of all mitigating evidence,

regardless of its nature. At sentencing, Thomas’ colloquy

focused on two very specific questions: 1) whether he desired to

testify on his own behalf; and 2) whether he had any other

witnesses to call. That he answered “no” to both does not mean

that, had effective counsel prepared mental health evidence, he
In assessing Thomas’ ability to show prejudice under 9

Strickland, the only question we answer here is whether

Thomas would have waived his right to present mitigating

evidence had he been represented by effective counsel. As a

result, we offer no opinion on whether a waiver of the right to

present mitigating evidence must be “informed and knowing.”

See Landrigan, 550 U.S. at 479 (“We have never imposed an

‘informed and knowing’ requirement upon a defendant’s

decision not to introduce evidence.”).

47

would have also declined its presentation. Therefore, we cannot

conclude that Thomas’ conduct at sentencing eliminated all

possibility that counsel’s performance caused him prejudice.9

3.

The Commonwealth also argues that Thomas was not

prejudiced because the evidence of Thomas’ mental health

history aggravated more than it mitigated. The Commonwealth

points to various negative statements in Thomas’ psychological

evaluations, including those that described him as having “little

understanding of his social and moral responsibility,” and as a

“sexual deviate with sadistic tendencies.” Some of these

evaluations even recommended Thomas’ incarceration because

“he is a serious threat in the community,” and “a dangerous

criminal.” The Commonwealth also notes that certain

evaluations documenting Thomas’ mental health history

referenced two other criminal incidents that the Commonwealth
48

did not introduce at sentencing: 1) in 1975, Thomas sodomized

five police horses with a broom handle, killing one of them; and

2) in 1976, Thomas sexually assaulted an infant girl. As a

result, the Commonwealth questions not only whether the

inclusion of Thomas’ mental health history could have possibly

changed the result of his sentencing, but also whether effective

counsel would have even introduced any of it for the jury’s

consideration.

While we agree with the Commonwealth that some of

Thomas’ mental health history paints him in a negative light, we

are not convinced that the death penalty is a fait accompli even

if evidence of Thomas’ mental health history were available at

sentencing. Certainly, evidence that Thomas is a sadistic and

dangerous sexual deviate who committed at least one prior act

that bears resemblance to the crime in this case is not mitigating.

Additionally, the quantity of aggravating evidence that the jury

already did consider was significant. But Thomas’ mental

health history acts as a common thread that ties all this evidence

together. A single juror may well have believed that this

unifying factor explained Thomas’ horrific actions in a way that

lowered his culpability and thereby diminished the justification

for imposing the death penalty. See Penry v. Lynaugh, 492 U.S.

302, 319 (1989) (“‘[E]vidence about the defendant’s

background and character is relevant because of the belief, long

held by this society, that defendants who commit criminal acts

that are attributable . . . to emotional and mental problems, may

be less culpable than defendants who have no such excuse.’”
49

(quoting California v. Brown, 479 U.S. 538, 545 (1987)

(O’Connor, J., concurring))). Therefore, there exists a

reasonable probability that effective counsel would have chosen

to present evidence of Thomas’ mental health history, and that

its presentation would have convinced at least one juror to

sentence Thomas to life imprisonment. While Thomas’ crimes

were heinous, and while it may be that the death penalty was

properly imposed, we cannot conclude, on this record, that he

was not prejudiced by trial counsel’s alleged deficiencies at

sentencing.

V.

We agree with the District Court that Thomas cannot

prevail on the three claims before us on his appeal, but we

disagree with the District Court that Thomas’ sentence should

be vacated. Although the absence of any evidence of a presentencing investigation in this case seems to suggest that none

occurred, it issimply notsufficient to overcome the presumption

of effectiveness that we are bound to apply. As a result, we will

vacate the District Court’s sentencing decision, and remand the

case for an evidentiary hearing concerning the extent, if any, of

Thomas’ counsel’s pre-sentencing investigative efforts to obtain

mitigating evidence.